Winkler v Director of Public Prosecutions

Re: FRANKLIN ALEXANDER WINKLER
And: DIRECTOR OF PUBLIC PROSECUTIONS; THE UNITED STATES OF AMERICA and
JONATHAN STEUART WILLIAMS
No. G346 of 1989
FED No. 262
Extradition
25 FCR 79

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox(1), Burchett(2) and O'Loughlin(1) JJ.

CATCHWORDS

Extradition - Application by United States of America for extradition of person wanted for trial on charges of conspiracy, wire fraud and making false statements - Failure of documents forwarded by United States to Australia to comply with requirements of Australia-United States Extradition Treaty - United States warrant of arrest not executed in accordance with Treaty requirements - Provision of Treaty requiring fugitive to be set at liberty unless appropriate documents forwarded within 45 days - Applicant not set at liberty because of error by magistrate - Subsequent fresh request for extradition and fresh notice by Australian Attorney-General leading to order by magistrate committing appellant to prison to await warrant for surrender - Validity of that order - Counts of indictment on which appellant might be surrendered - Sufficiency of evidence to warrant surrender on various counts - Effect of failure by respondents to appeal against restriction imposed by magistrate on scope of conspiracy count.

Extradition (Foreign States) Act 1966 ss.4, 10, 12, 15, 16, 17, 17A, 18, 26

Extradition (United States of America) Regulations reg.3 and Treaty, arts.XI, XII and XIII

HEARING

SYDNEY

#DATE 18:6:1990

Counsel for the appellant: Mr D.M.J. Bennett QC and Mr M. Bloom

Solicitors for the appellant: Messrs Kosmin and Associates

Counsel for the first and second respondents: Mr J.J. Spigelman QC with Mr A. Robertson

Solicitors for the first and second respondent: Director of Public Prosecutions

ORDER

Both the appeal and the cross-appeal be allowed in part.

The order made by Davies J be varied by deleting all the words in order 1 which follow the word "based" and by substituting therefor the words "on Counts 2 to 29 of the United States Grand Jury indictment against the applicant and on so much of Count 30 of the said indictment as alleges a conspiracy to violate section 1343 of Title 18 of the United States Code."

All parties abide their own costs of the appeal and the cross-appeal.

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

JUDGE1

The matter before the Court is an appeal and a cross-appeal against orders made by a Judge of the Court (Davies J.) in the course of a review of an order made by a magistrate for the surrender for extradition of the appellant, Franklin Alexander Winkler, in connection with 28 counts of wire fraud, one count of conspiracy and two counts of false statements brought against him in the United States of America.

The application heard by Davies J. was based primarily upon s.18 of the Extradition (Foreign States) Act 1966. This statute was repealed by the Extradition Act 1988 but it was in force at all relevant times. It therefore provides the statutory context to the problems which we have to consider. Mr Winkler also sought writs of mandamus, prohibition and certiorari, and relied upon the Administrative Decisions (Judicial Review) Act 1977. However, as Davies J. commented, these additional bases of relief add nothing to the proceeding and, before us, the appellant has restricted himself to s.18 of the Extradition (Foreign States) Act.
In his application for review, Mr Winkler named three respondents, the Director of Public Prosecutions, the United States of America and Mr J.S. Williams, the magistrate who made the surrender order. Mr Williams submitted to the order of the Court, but the other respondents appeared by counsel to contest the relief sought by Mr Winkler. For simplicity, we will use the words "the respondents" as a reference only to the first two respondents.
Subject to one qualification which we will explain later, Mr Williams ordered the surrender of the appellant on all of the 31 charges brought against him in the indictment filed in the United States. Davies J. confirmed the order for surrender, but only in connection with the conspiracy charge. From that decision Mr Winkler appealed, contending that his Honour should have held that he was not to be surrendered at all. The Director of Public Prosecutions cross-appealed, claiming that Davies J. erred in limiting the surrender to the conspiracy charge and seeking an order confirming the magistrate's order.
The legislative context
Section 10 of the Extradition (Foreign States) Act provides that where, after the commencement of the Act, an extradition treaty comes into force between Australia and a foreign state, regulations may provide that the Act applies in relation to that state after that time. In a case where the Act did not previously apply to a particular foreign state -- as was the position in relation to the United States -- s.10(1)(b) permits the regulations to make the application of the Act "subject to such limitations, conditions, exceptions or qualifications as are necessary or desirable to give effect to that treaty and are specified in the regulations". Pursuant to s.10, the Extradition (United States of America) Regulations were made in 1976. They made the Act applicable to the United States of America subject, amongst other things, to the Treaty on Extradition between Australia and the United States which was signed on behalf of the two countries in May 1974 and came into effect on 8 May 1976.
(These regulations have now been superceded by regulations made under the Extradition Act 1988, but the new regulations have no application to this case. Even under the new regulations the 1976 Treaty continues to apply.)
Articles XI, XII and XIII of the Treaty deal with the procedures applicable to a request for extradition made by one of the Treaty Parties to the other. As the terms of those articles are important to some of the arguments put in this case, it is desirable to set out the relevant provisions:

"ARTICLE XI

(1) The request for extradition shall be made through the diplomatic channel.

(2) The request shall be accompanied by a description of the person sought, a statement of the facts of the case, the text of the applicable laws of the requesting State including the law defining the offence, the law prescribing the punishment for the offence and the law relating to the limitation of the legal proceedings.

(3) When the request relates to a person who has not yet been convicted, it must also be accompanied by a warrant of arrest issued by a judge or other judicial officer of the requesting State and by such evidence as, according to the laws of the requested State, would justify his trial or committal for trial if the offence had been committed there, including evidence proving the person requested is the person to whom the warrant of arrest refers.

(4) . . .

(5) . . .

ARTICLE XII

(1) In case of urgency a Contracting Party may apply for the provisional arrest of the person sought pending the presentation of the request for extradition through the diplomatic channel.

(2) The application shall contain a description of the person sought, an indication of intention to request the extradition of the person sought and a statement of the existence of a warrant of arrest . . . and such further information, if any, as would be necessary to justify the issue of a warrant of arrest had the offence been committed, or the person sought been convicted, in the territory of the requested State.

(3) On receipt of such an application the requested State shall take the necessary steps to secure the arrest of the person claimed.

(4) A person arrested upon such an application shall be set at liberty upon the expiration of forty-five days from the date of his arrest if a request for his extradition accompanied by the documents specified in Article XI has not been received.

(5) Paragraph (4) of this Article shall not prevent the institution of proceedings with a view to extraditing the person sought if the request is subsequently received. ARTICLE XIII

(1) If the requested State requires additional evidence or information to enable it to decide on the request for extradition, that State may request that such evidence or information be furnished within such period as it specifies.

(2) If the person sought is under arrest and the additional evidence or information submitted as aforesaid is not sufficient or if such evidence or information is not received within the period specified by the requested State, he shall be discharged from custody.

(3) The discharge of a person from custody under paragraph (2) of this Article shall not bar the requesting State from submitting another request in respect of the same offence."

The Treaty is silent as to the procedures to be followed after the arrest of a person sought. These procedures are left to the domestic law of the requested State. In the case of Australia, while it remained in force, Part III (ss.12 to 19 inclusive) of the Extradition (Foreign States) Act covered the matter.
Section 12 of the Act created a general liability of a fugitive to be surrendered to a foreign state, subject to the Act and any relevant limitations or conditions. Section 13 and 14 imposed some limitations, but they are not presently relevant. Section 15 is important to the present case, so we set it out in full.

"15.(1) Subject to sub-section (2), where a requisition for the surrender of a fugitive who is, or is suspected of being, in or on the way to Australia is made to the Attorney-General by a foreign state, the Attorney-General may, in his or her discretion--

(a) if a warrant for the apprehension of the fugitive has not been issued under section 16--by notice in writing in accordance with the form prescribed for the purposes of this paragraph, state that the requistion has been made and authorize the issuing by any Magistrate of a warrant for the apprehension of the fugitive; or

(b) if a warrant for the apprehension of the fugitive has been issued under section 16 and a person has been apprehended under the warrant--by notice in writing in accordance with the form prescribed for the purposes of this paragraph and directed to any Magistrate before whom the person may be brought, inform the Magistrate that the requisition has been made.

(2) The Attorney-General shall not give a notice under sub-section (1) in respect of a fugitive whose surrender is requested by a foreign state if the Attorney-General is of the opinion that--

(a) the fugitive is not liable to be surrendered to the foreign state; or

(b) the offence to which the requestion for the surrender of the fugitive relates is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, an offence of a political character or that the requistion for his surrender has in fact been made with a view to try or punish him for an offence of a political character."

Section 16 dealt with the issue and execution of Australian warrants for the apprehension of fugitives. Section 16A and 16B dealt with searches. They are not presently material. Section 17 set out the procedures to be followed after the apprehension of a person pursuant to a warrant. Relevantly, it provided:

"17.(1) A person who is apprehended under a warrant issued in pursuance of section 16 shall, unless he is sooner released, be brought as soon as practicable before a Magistrate in the State or Territory in which he is apprehended.

(2) Subject to sub-section (2A), a Magistrate may remand a person brought before him under this section, either in custody or on bail, for a period or periods not exceeding 7 days at any one time and, where a Magistrate remands a person for such a period, the person may, at the expiration of the period, be brought before that Magistrate or before any other Magistrate.

(2A) . . .

(2B) . . .

(3) In the application of the succeeding sub-sections in relation to a person who has been apprehended under a warrant issued in pursuance of section 16, the expression 'the Magistrate' means the Magistrate before whom the person is brought after he was apprehended or at the expiration of a period for which he has been remanded under this section, as the case may be.

(4) If the person was apprehended under a warrant issued otherwise than in pursuance of an authority by the Attorney-General in a notice under paragraph 15(1)(a), the Magistrate shall remand the person in accordance with sub-sections (2) and (2A) of this section until the Magistrate receives a notice under paragraph 15(1)(b) from the Attorney-General informing the Magistrate that a requisition for the surrender of the person has been made to the Attorney-General by a foreign state.

(5) Where the Magistrate does not receive such a notice within--

(a) in a case to which paragraph (b) does not apply--45 days after the day on which the person was apprehended; or

(b) if a treaty in force between Australia and the foreign state in which, or within the jurisdiction of which or of a part of which, the person is alleged to have committed, or has committed, an extradition crime specifies a different period after the apprehension of the person as the period by which a requesition for the surrender of the person must be made--that period, or within such further period as the Magistrate considers reasonable having regard to all the circumstances, the Magistrate shall--

(c) if the person apprehended is held in custody--order that the person be released; or

(d) if the person has been admitted to bail--make an order discharging the recognizances upon which the person was admitted to bail.

(5A) . . .

(5B) . . .

(5C) . . .

(6) If the person was apprehended under a warrant issued in pursuance of an authority by the Attorney-General in a notice under paragraph 15(1)(a) or the Magistrate receives a notice by the Attorney-General under paragraph 15(1)(b) and--

(a) there is produced to the Magistrate--

(i) in the case of a person who is accused of an extradition crime--

(A) a duly authenticated foreign warrant in respect of the person issued in the foreign state that made the requisition for the surrender of the person or a duly authenticated copy of such a warrant;

(B) a duly authenticated statement in writing setting out a description of each offence for which the surrender of the person is requested and the penalty applicable to each such offence; and

(C) a duly authenticated statement in writing setting out all the acts or omissions in respect of which the surrender of the person is requested; or

(ii) in the case of a person who is alleged to have been convicted of an extradition crime--such duly authenticated documents as provide evidence of the conviction, of the sentence imposed on the person or of the intention to impose a sentence on the person and of the extent to which a sentence imposed on the person has not been carried out, and, if the application of this Act to the foreign state that made the requisition for the surrender of the person is subject to any limitations, conditions, exceptions or qualifications, any other documents required by those limitations, conditions, exceptions or qualifications to be produced; and

(b) the Magistrate is satisfied, after taking into account any evidence properly adduced by the person, that the person is liable to be surrendered to the foreign state that made the requisition for the surrender,

the Magistrate shall either--

(c) by warrant in accordance with the form prescribed for the purposes of this sub-section, commit the person to prison to await the warrant of the Attorney-General for the surrender of the person; or

(d) in the case of a person--

(i) who has been charged with an offence that is alleged to have been committed in Australia, being a charge that has not been disposed of; or

(ii) who has been convicted in Australia of an offence and is not in custody in respect of that offence, on the person's entering into such recognizances as the Magistrate thinks appropriate, grant bail to the person pending the signing of a warrant by the Attorney-General for the surrender of the person, but otherwise the Magistrate shall order that the person be released.

(6A) . . .

(7) . . .

(8) . . ."

Section 17A of the Act provided for review, at the instance of the foreign state, of an order that a person be released. Section 18 permitted a person ordered to be held in custody to apply for review of that order. Sections 18A, 18B and 19 dealt with the Attorney-General's surrender of the fugitive and his or her transportation.
Part IV of the Extradition (Foreign States) Act dealt with extradition from foreign states to Australia. Part V dealt with a miscellany of matters. It included s.26, dealing with the admissibility of documents, to which we will refer later.
Background to the case
On 10 June 1987 an indictment was filed in the United States District Court for the District of Kansas against five persons: Mario Renda; the present appellant; his father, V Leslie Winkler; Sammy G. Daily; and Frederick A. Figge. It will be necessary for us to return later to the detail of the indictment. At this stage we record merely the allegations as to the interests of the various defendants: Mr Renda was the President and Chief Executive Officer of a New York financial institution known as First United Fund; the present appellant and Mr Daily were the principals of two Hawaiian real estate companies, each of them controlling a number of other companies and being associated in a limited partnership known as Haiku Partners; Mr V.L. Winkler and Mr Figge were partners, with the present appellant, in another limited partnership known as Haiku Holdings; and some of the defendants had shared interests, in various combinations, in other companies and partnerships. As will appear in more detail hereafter, the gravamen of the charges against the five defendants is that they were involved in activity intended fraudulently to benefit the various companies and partnerships with which they were connected.
Shortly after the filing of the indictment, on 11 June 1987, a warrant was issued out of the United States District Court for the arrest of the appellant. On 25 August 1987 the United States Embassy in Canberra presented Diplomatic Note no.126 to the Australian government requesting the provisional arrest of the appellant pending extradition. The intention, no doubt, was to use art.XII of the Treaty. Three days later a warrant was issued by a New South Wales magistrate, Mr W.R. Gilbert, pursuant to s.16 of the Extradition (Foreign States) Act.

Mr Winkler was arrested on 12 September 1987. On 14 September 1987 he was granted bail by another magistrate, on conditions as to reporting and the surrender of his passport.
On 20 October 1987 the United States made an application for the extradition of Mr Winkler. The United States Embassy forwarded a bundle of authenticated documents, including the indictment and sworn statements of witnesses. In the relevant Diplomatic Note (no.151) the Embassy indicated that Mr Winkler was wanted for trial for only 28 counts of wire fraud, not 29 as was indicated in Note no.126; the reason being that count one had been abandoned because it was statute-barred. It seems apparent that this Diplomatic Note was intended to be the 'request for extradition' made, as required by art.XI, 'through the diplomatic channel'.
The then Australian Attorney-General, Mr L.F. Bowen, issued a notice under s.15(1)(b) of the Act on 26 October 1987. This notice recited the United States requisition and the issue of a warrant by Mr Gilbert. It proceeded:

"NOW THEREFORE I, Lionel Frost Bowen, Attorney-General of the Commonwealth of Australia, being of the opinion that--

(c) Franklin Alexander Winkler is liable to be surrendered to the United States of America;

(d) the offences to which the requisition relates are, neither in essence nor by reason of the circumstances in which they are alleged to have been committed, offences of a political character; and

(e) the requisition has not been made with a view to try or punish Franklin Alexander Winkler for an offence of a political character,

pursuant to paragraph 15(1)(b) of the Extradition (Foreign States) Act 1966, hereby inform you that the above-mentioned requisition has been made."

The proceedings before Mr Williams

In due course the documents furnished by the United States authorities were served upon Mr Winkler by the Director of Public Prosecutions. The application for extradition came before Mr Williams on 15 and 16 February 1988. During the course of that hearing it became apparent that there was an issue about the form of the United States warrant of arrest. Whatever its effectiveness under United States law, it was argued that it failed to comply with the requirements of art.XI(3) of the Treaty in that it had not been "issued by a judge or other judicial officer", but rather by the Deputy Clerk of the Court. After this question arose, Mr Williams adjourned the matter for mention on 9 March 1988. In the meantime, on 1 March 1988, a fresh warrant of arrest was issued out of the United States District Court in Kansas. It is accepted by the parties that this warrant does comply with art.XI(3) of the Treaty. The new warrant was forwarded to the Australian authorities by Diplomatic Note no. 27 of 8 March 1988. In that Note the United States again requested Mr Winkler's extradition. With the Note was enclosed a further set of authenticated documents including the indictment and all the witnesses' depositions. Amongst the depositions was a small number of statements which had not previously been supplied.
None of this material was immediately presented to Mr Williams. On 9 March he adjourned the matter for one week. On 16 March 1988 Mr Williams heard argument, perhaps amongst other matters, upon the question whether the original United States warrant complied with art.XI(3)(b) of the Treaty and, if not, what course ought now to be taken by him. Notwithstanding an affidavit from an American lawyer, Dr L.B. Monroe, which gave reasons for interpreting the words "judicial officer" as including a Clerk of Court, the magistrate ruled that the warrant did not comply with art.XI(3)(b), so that the Attorney-General's notice of 26 October, which was based on that original warrant, was invalid. Applying to the case the observation of Burchett J in Schlieske v. Federal Republic of Germany (1987) 76 ALR 417 at p 422 about the fundamental significance, for Australian domestic law purposes, of the Attorney-General's notice, Mr Williams held that he had no jurisdiction to proceed further. But the magistrate did not then order Mr Winkler's discharge from bail. The reason was that counsel for the present respondents tendered the new United States warrant of arrest. Although the Australian Attorney-General had not yet issued a new notice under s.15, Mr Williams took the view that s.17(5) permitted him to extend beyond 45 days the period during which this could be done. He said that the case was in the same position as it had been when Mr Winkler was first arrested pursuant to the warrant issued by Mr Gilbert, which warrant was indubitably valid. Being informed of the likelihood of a fresh s.15 notice, he adjourned the matter for a week, continuing bail in the meantime. No action was taken by the respondents to challenge the correctness of Mr Williams' finding that the original warrant did not comply with art.XI(3)(b) of the Treaty. Nor did the present appellant challenge Mr Williams' refusal to release him from bail.
On 18 March the United States Embassy presented a further Diplomatic Note (No.31) by which it again requested the extradition of Mr Winkler. Authenticated copies of five affidavits were enclosed. Four days later, on 22 March, the Attorney-General issued a second notice under s.15(1)(b) of the Extradition (Foreign States) Act. This notice was in the same form as the earlier notice.
When the matter came back before Mr Williams on 23 March 1988 he was informed of the issue of the new notice. Counsel for Mr Winkler renewed their application for discharge from bail but the magistrate adhered to his earlier position. Counsel for the present respondents sought a date for a fresh hearing, based upon the new notice, and this was fixed for 18-20 July. For reasons which do not appear, the hearing was not completed in that period. After a further two-day hearing in December, Mr Williams reserved his decision, judgment being delivered on 10 February 1989. As already indicated, Mr Williams ordered the surrender of Mr Winkler.
The proceeding before Davies J.
On 16 February 1989 the appellant's solicitors filed an Application in this Court. The appellant was released on bail. The matter was heard by Davies J. on 17 and 18 May 1989, judgment being delivered on 16 June.
A major issue before Davies J. was the effect of the failure of the original United States warrant to comply with art.XI(3) of the Treaty,
In his reasons for judgment, his Honour dealt with that issue in the following way:

"Mr Bennett (senior counsel for Mr Winkler) submitted to this Court that the failure of the Magistrate to release Mr Winkler on 16 March 1988, as the Treaty required, fatally flawed the remainder of the extradition proceedings. Mr Bennett referred to R. v. Hartley (1978) 2 NZLR 199; R. v. Bow Street Magistrates; Ex parte Mackeson (1981) 75 Cr App R 24 and Trimbole v. Governor of Mountjoy Prison (1985) IR 550. But those are all cases of abuse of process. The present is not such a case. There was an error of law made in the interpretation of the Act and the Treaty. In Athanassiadis v. The Government of Greece and Ors (1971) AC 282, such an error was treated as a mere technical error which did not invalidate proceedings properly taken thereafter. In that case, one of the documents required had not been received within the specified period, one month after the arrest. Therefore the arrest should not have been maintained. But the proceedings which followed thereafter being otherwise valid and supported by the documents which were then before the Magistrate, it was held that no writ of habeus corpus should issue. The warrant of committal being otherwise valid, it was not invalidated by the mere fact that the fugitive should have been released before the warrant was issued. In other words, there had been a mere technical breach not affecting the substance and merits of the case.

Mr Bennett also referred to the remarks of Burchett J. in Schlieske . . .. But those remarks only confirm the point that Mr Winkler should have been released on 16 March 1988. Although Mr Winkler ought not to have been held in custody, he was in fact in custody. Mr Winkler had been apprehended pursuant to a warrant issued under s.16 and was still held thereunder, notwithstanding that the detention ought to have been brought to an end. In the circumstance, as Mr Winkler was in custody pursuant to a warrant issued under s.16, the Honourable the Attorney-General was entitled to issued a notice pursuant to s.15(1)(b) of the Act as he did.

That notice, which was issued in the light of the request constituted by Note No. 151 of 1987 and Notes No. 27 and 31 of 1988 and by the documents accompanying those notes, including the second warrant issued in the United States on 1 March 1988, was not invalidated by the defects in the first United States warrant of arrest. The proceedings consequent thereon, after the notice had been produced to the Magistrate, were not voided by the Magistrate's decision on 16 March 1988. In this present application, Mr Cowdery (senior counsel for the respondents) at first eschewed reliance upon the second notice issued by the Attorney-General and upon the Notes received subsequent to Note No. 151 of

1987. However, in the course of argument, he retracted that view. After reading the transcript of the proceedings before the Magistrate, I am satisfied that the Magistrate proceeded on 23 March 1988 and thereafter upon the authorisation of the Attorney-General's second notice issued 22 March 1988."

Davies J also dealt with an argument that "the only request for extradition had been Note no.151 of 25 July 1987" and that this request had not been accompanied by the second United States warrant. (The reference to 25 July 1987 was incorrect. Note no.151, the first request for extradition, was dated 20 October 1987.) As to this point his Honour said:

"I agree with Mr Bennett that the warrant of 1 March 1988 could not be said to have accompanied Note No. 151 for that Note had been accompanied by a different warrant, the warrant of 11 June 1987. Nevertheless, by March 1988, the request was constituted not simply by Note No. 151 of 1987, but also by Note No. 29 of 1988 (sic, the Note was actually No.27 of 1988) and by Note No. 31 of

1988. The request so constituted was accompanied by the prescribed documents."

Davies J then turned to the question whether there was sufficient evidence to warrant the surrender of the appellant on each of the charges made against him. In the cases of counts 2 to 29 inclusive and 33 and 34 his Honour held that there was no such evidence. In relation to count 30, the conspiracy count, Davies J held that there was evidence to justify surrender, but he took a wider view of the scope of that count than had Mr Williams. We will return to that matter when discussing count 30. The formal order made by his Honour was that Mr Williams' order "be confirmed to the extent that it was based on Count 30 of the United States Grand Jury indictment against the applicant".
Mr Winkler's entitlement to be set at liberty
As we have indicated, it is now common ground that the first United States arrest warrant, dated 11 June 1987, did not comply with art.XI(3) of the Treaty. No warrant complying with that paragraph was delivered within 45 days of Mr Winkler's arrest. It follows, say counsel for the appellant, that Mr Winkler should have been set at liberty--that is, his recognizances should have been discharged -- at the expiration of 45 days from his arrest or as soon thereafter as the deficiency was discovered. The position was clear by 16 March 1988, say counsel, so that Mr Winkler should have been released from bail on that day, at the latest. They submit that the failure of Mr Williams to release Mr Winkler from bail on 16 March 1988 had the effect of "tainting" everything that followed so that the second Attorney-General's notice was ineffective to confer jurisdiction upon Mr Williams to make a valid surrender order. Counsel for the respondents accept that Mr Winkler was entitled to have his recognizances discharged on 16 March, but they deny that the failure of the magistrate to take that course affects the validity of his subsequent order.
It is not difficult to see how Mr Williams was misled into thinking that s.17(5) of the Act authorized him to extend the time during which Mr Winkler might be held on bail. If the terms of art.XII(4) of the Treaty conflicted with those of s.17(5) a nice question of construction would arise. As a general proposition it is correct to say that, wherever there is a conflict between the terms of the Act and that of the Treaty, the Treaty is to prevail This is the effect of reg.3 making the application of the Act to the United States subject to the Treaty. Although the notion that the operation of an Act may be limited by the terms of a regulation would normally be heretical, it was a notion specifically countenanced by s.10 of the Extradition (Foreign States) Act. And this course was often taken in relation to extradition treaties, so that it was commonplace for an extradition treaty to prevail over this Act. Section 17(5)(b) was directed only to time limits fixed by a treaty. If it had dealt with a procedural requirement identical to that contained in art.XII(4), a question would arise as to whether the general rule that the Act applied subject to the provisions of the Treaty was not itself subject to the exception that, notwithstanding the mandatory nature of art.XII(4), the magistrate had a discretion to extend time. The argument would be that, otherwise, s.17(5)(b) would be otiose and that, to this limited extent, the Australian Parliament had reserved for itself the final word.
However, although they were likely to be in practice closely connected, the procedures referred to in art.XII(4) and s.17(5)(b) were not identical. Article XII(4) is concerned with the delivery of documents by the requesting state. It must be read in the context of the preceding paragraphs. As art.XII(1) makes clear the parties to the Treaty wished to provide a mechanism for the urgent arrest of a person, notwithstanding that proper documents were not yet available. They required the supply by the requesting state of some information, but this did not need to extend to evidence of the commission of the alleged offence. Provided that the material referred to in art.XII(2) was supplied, the requested state was obliged by art.XII(3) to take steps to apprehend the person.
An arrest of the person had the advantage, from the point of view of the requesting state, of ensuring that person's availability for extradition. However, as the person might be held in custody, it was important to guard against delay in the transmission of the material which would be required for the requested state to determine whether to surrender the person to the requesting state; cf. Regina v. Governor of Ashford Remand Centre; Ex parte Beese (1973) 1 WLR 969 at p 974 and Government of Belgium v. Postlethwaite (1988) AC 924 at p 947.
The drafters of the Treaty could have dealt with this problem by inserting a direct obligation to supply the art.XI(3) material within a specific time. They did not do so. But they sought to achieve the same result by providing for the release of the person unless the material was received from the requesting state within 45 days of the arrest. If the requesting state did submit the material within that time, the subsequent course of events was to be left to the domestic law of the requested state.
Section 17(5) is concerned with the situation which arises where a person is arrested otherwise than pursuant to a s.15(1)(a) authority. Ordinarily, this will be because there has been a provisional arrest under a Treaty term such as art.XII of the Australia-United States Treaty. If the relevant treaty contains a provision like art.XII(4), and the necessary documents are not supplied within the specified period, the person will be entitled to release by virtue of that provision. But, if there is no such provision or if it is not applicable because the material has been supplied within time, it remains important to ensure that the case is not left in limbo for lack of an Attorney-General's notice. The magistrate cannot deal with the application for extradition unless and until there is a warrant issued pursuant to s.15(1)(a) or, alternatively, the magistrate receives a s.15(1)(b) notice.
The apparent purpose of s.17(5) was to ensure that, where there was no s.15(1)(a) warrant, there was not undue delay in the Attorney-General issuing a s.15(1)(b) notice. The general rule imposed by s.17(5) was that, in the absence of such a notice within 45 days, the person was to be released from custody. But Parliament apparently thought that it might sometimes be impractical for the magistrate to receive the notice within that time, possibly because of geographical factors or infrequencies of court sittings; so provision was made for an extension of the time in any particular case.
For present purposes it is enough to note that s.17(5) deals with a different problem from that addressed by art.XII(4) of the Treaty. Accordingly, s.17(5) provides no justification for reading down the terms of art.XII(4). In our view, agreeing with Davies J., Mr Winkler was entitled to be "set at liberty", that is to have his recognizances released, not later than 16 March.
The effect of the omission to set Mr Winkler at liberty
However, Mr Winkler was not "set at liberty" and a major issue between the parties concerns the effect of that omission. As indicated, counsel for the appellant submitted to Davies J that the effect was to "taint" all subsequent proceedings, so that there could be no valid surrender thereafter. They repeat this submission before us, citing the three authorities, Hartley, Mackeson and Trimbole, mentioned by Davies J. in the passage from his judgment quoted above.
We agree with Davies J. that each of these cases is distinguishable from the present case. But as counsel for the appellant continue to place great reliance upon them, it is desirable for us to elaborate our view.
Hartley was a case in which an accused person (Bennett) had fled from New Zealand to Australia, following the alleged offence. Having learned that Bennett was in Melbourne, the New Zealand police telephoned their Melbourne counterparts and asked them to put him on the first plane back to New Zealand. The Melbourne police obliged. On arrival in New Zealand, Bennett was arrested and charged. He challenged the jurisdiction of the New Zealand trial court but the trial judge held that the means by which he had been returned to New Zealand did not affect the Court's jurisdiction over him. Upon appeal against conviction, the argument was advanced that the steps taken by the police, both in New Zealand and Melbourne, were illegal and that this illegality tainted all subsequent proceedings, so that the New Zealand court lacked jurisdiction to try him.
Applying United Kingdom authorities, the New Zealand Court of Appeal rejected this submission. Delivering the judgment of the Court of Appeal, Woodhouse J. said at p 215:

"It is the presence within the territorial boundaries that is the answer to the initial question of jurisdiction. In the present case, although Bennett was brought here unlawfully, he was eventually lawfully arrested within the country and then by due process of law he was brought before the Court. The Court was accordingly in a position to exercise jurisdiction in respect of him."

Woodhouse J. went on to consider the issue of discretion, pointing out that the courts would not countenance a deliberate decision by the executive to defy the law. The remedy, in a proper case, was for the court to discharge the indictment. His Honour said that, had such an application been made at or before the trial, the judge would probably have been justified in acceding to it. However, Woodhouse J. made clear that the Court was speaking only of a case where the authorities had deliberately contravened the law. He referred to the New Zealand extradition legislation and commented that "there can be no possible question here of the Court turning a blind eye to action of the New Zealand police which has deliberately ignored those imperative requirements of the statute." Significantly, in the course of his discussion of discretion Woodhouse J distinguished between the case then before the Court, where members of the New Zealand police had been involved in the illegal conduct, and the situation which occurred in Sinclair v. HM Advocate (1890) 17 R (Ct of Sess) 38. Sinclair complained that the Portuguese government had acted illegally in returning him from Portugal to Scotland. But there was no evidence of unlawful conduct by the Scottish authorities.
Mackeson concerned an extradition from Rhodesia to the United Kingdom disguised as a deportation. This course had apparently been taken because, when the matter first arose, Rhodesia was in a state of rebellion against the Crown, following its unilateral declaration of independence. Upon his return to England pursuant to the deportation order, Mackeson was charged with various offences but he succeeded in obtaining an order from the English Court of Appeal staying the committal proceedings. The Court found as a fact that officers of the London Metropolitan Police were involved in the disguised extradition.
Trimbole was not a case in which a person had been unlawfully brought to the country where he was wanted for trial. Trimbole, an Australian citizen, was travelling in Ireland when he was arrested on suspicion of having in his possession a firearm and ammunition. Egan J. conducted an inquiry into his arrest, found that the authorities had no genuine suspicion of his being so armed, and ordered his immediate release. Whilst Trimbole was being held on the firearms matter, the Irish government made an order applying the Irish Extradition Act 1965 to the Commonwealth of Australia. Shortly thereafter, a provisional warrant was issued for Trimbole's apprehension under that Act. Immediately Trimbole was released pursuant to the order of Egan J., he was re-arrested under that warrant. Thereupon, a fresh application was made to Egan J. This application succeeded. Egan J. held that, in making the first arrest, the Irish authorities had consciously and deliberately violated Trimbole's constitutional rights, and that this violation tainted his subsequent arrest and custody. Upon appeal, the Supreme Court upheld that decision.
The application of Trimbole to Australian case law is complicated by its reliance upon Irish constitutional law. However, it is relevant to note that, in the Supreme Court, Finlay C.J., with whom Henchy, Griffin and Hederman JJ. concurred, likened the issue of violation of constitutional rights to abuse of process. Indeed, he referred at length to both Mackeson and Hartley. Even so, the Chief Justice stated, at p 486, that "not every unlawful arrest, even though it may be classified as conscious and deliberate gives to a person so arrested, after his necessary release from illegal detention, any immunity from the proper enforcement of due processes of law or makes him unamenable to answer criminal offences in our courts". Finlay C.J. agreed with the order of Egan J. because of the latter's finding "that the unlawful arrest was part and parcel of a planned operation prompted by delay in bringing into operation the reciprocal extradition agreements, and therefore the operation of the Act of 1965 as between Australia and Ireland".
We have discussed the three authorities relied upon by counsel for the appellant in order to demonstrate that, in each of them, there was a finding that relevant officers had deliberately and knowingly engaged in illegal conduct in connection with the proceedings against the affected person. In each case it was held that, as a matter of discretion -- and in Trimbole also as a matter of constitutional right -- the court could interfere to prevent that abuse of power attaining its purpose. The rationale of the decisions is similar to that applied by the High Court of Australia in relation to illegally obtained evidence: see The Queen v. Ireland (1970) 126 CLR 321, Bunning v. Cross (1978) 141 CLR 54 and Cleland v. The Queen (1982) 151 CLR 1. That rationale was spelt out in Bunning v. Cross by Stephen and Aickin C.J., with whom Barwick C.J. agreed, in the following passages:

"What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bring to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration. ...

The relevance of the competing policy considerations to which we have referred becomes of especial importance in an age of sophisticated crime and crime detection when law enforcement increasingly depends upon electronic surveillance and eavesdropping, the unannounced search of premises or of the person and upon scientific methods, whether of identification, by fingerprints or voiceprints, or of ascertainment of bodily states, as by blood alcohol tests and the like. In many such cases the question of fairness does not play any part. 'Fair' or 'unfair' is largely meaningless when considering fingerprint evidence obtained by force or a trick or even the evidence of possession of, say, explosives or weapons obtained by an unlawful search of body or baggage, aided by electronic scanners. There is no initial presumption that the State by its law enforcement agencies, will in the use of such measures of crime detection observe some given code of good sportsmanship or of chivalry. It is not fair play that is called in question in such cases but rather society's right to insist that those who enforce the law themselves respect it, so that a citizen's precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired. A discretion exercisable according to the principles in Ireland's Case serves this end whereas one concerned with fairness may often have little relevance to the question." (Pages 74-75)

"The liberty of the subject is in increasing need of protection as governments, in response to the demand for more active regulatory intervention in the affairs of their citizens, enact a continuing flood of measures affecting day-to-day conduct, much of it hedged about with safeguards for the individual. These safeguards the executive, and, of course, the police forces, should not be free to disregard. Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature's safeguards of individual liberties, subordinating it to the executive arm. This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty. In appropriate cases it may be 'a less evil that some criminals should escape than that the Government should play an ignoble part'--per Holmes J. in Olmstead v. United States (1927) 277 US 438 at p 470. Moreover the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law. On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law." (pages 77-78)

There is, in the present case, no element of deliberate disregard of the law by those associated with the application for extradition. Mr Winkler's bail should have been discharged on 16 March 1988 but the omission of Mr Williams to so order did not result from any defiance of the law by him or counsel then appearing for the present respondents. The omission resulted from Mr Williams' erroneous perception of the significance of s.17(5) of the Act. To adapt the words of Stephen and Aickin J.J., the omission was an "isolated and merely accidental non-compliance" with the safeguards incorporated into the Treaty. There is no question of that omission "tainting" the subsequent proceedings.
Like Davies J., we find illuminating the House of Lords decision in Athanassiadis v. Government of Greece (1971) AC 282. Athanassiadis was arrested in England on 3 June 1966 pursuant to a warrant issued in London at the instance of a police officer who informed the magistrate that an arrest warrant had been issued in Greece. On 10 June 1966 the Greek government formally requested that Athanassiadis be placed under provisional arrest. Article 9 of the Anglo-Greek Extradition Treaty provided that a provisional arrest "shall not be maintained if, within a period of one month from the date on which it has been effected, the State applied to has not been served with" the documents required by art.8 of the Treaty. A document was supplied within one month but this did not fulfil the requirements of art.8. Notwithstanding this, Athanassiadis was not released. In habeas corpus proceedings Viscount Dilhorne, with whom Lord MacDermott, Lord Morris of Borth-y-Gest, Lord Guest and Lord Upjohn all concurred, held that it was clear that, under art.9 "the arrest of the appellant should not have been maintained". However, Viscount Dilhorne went on to reject a submission made on behalf of Athanassiadis that the magistrate had no power to commit his client to prison with a view to his surrender, as he had done on 13 August 1966. His Lordship pointed out that on 18 July the necessary documents had been furnished. He commented, at pp 288-289:

"If the procedure had started with the Note Verbale of July 18 requesting his extradition on account, inter alia, of this conviction, the only respect in which the procedure laid down by the Extradition Act was not followed was in not issuing a further warrant for his arrest. If that had been done, I do not see that there could have been any complaint arising out of his arrest on June 3 as to the validity of his committal for surrender. In the circumstances of this case the issue of a writ for his arrest when he was in custody was unnecessary -- as unnecessary as would be the issue of a warrant for the arrest of a person serving a sentence of imprisonment."

Viscount Dilhorne referred to Rex v. Governor of Brixton Prison; Ex parte Servini (1914) 1 KB 77, a case of an omission to give formal proof of an Order in Council, and proceeded at p 289:

"I agree with the views expressed in this case and I do not think that the application for a writ of habeas corpus should now be granted on account of the omission to issue a warrant for arrest when the appellant was in custody. If the appellant was not lawfully in custody after July 3, he might have been able to obtain his release before he came before the magistrate in August, but if that were the case, it would not be in my opinion any ground for holding that the warrant of committal issued on August 13 was invalid. After the issue of the warrant, he is not entitled to his release now on the ground that he should have been released before the warrant was issued."

The facts of this case, as found by Davies J., are close to those of Athanassiadis. The two cases have the following common features: the person was arrested on a provisional warrant; the relevant treaty required that a person so arrested be set at liberty unless certain specified documents were supplied by the requesting state within a specified period after arrest; not all of the relevant documents were supplied but, through error of law, the person was not released; the necessary documents were subsequently supplied; but no new warrant for the arrest of the person was issued by a magistrate of the requested state. Nevertheless, in Athanassiadis, on those facts, the subsequent surrender order was held to be valid.
Counsel for the appellant submit that Athanassiadis is to be distinguished from the present case because of differences between the language used in art.9 of the Anglo-Greek Extradition Treaty and that used in art.XII(4) of the Australia-United States Treaty. We see no relevant distinction. Each article expresses a clear intention that the person be released if the specified documents are not supplied within the prescribed period. Nor, contrary to the submission made by counsel for the appellant, does it matter that, in Athanassiadis, the fugitive was arrested before the formal request for provisional arrest. The point made by Viscount Dilhorne was that the omission to issue a second warrant was, in the circumstances, a matter of formality only. Subject to one matter, it seems to us that Athanassiadis is directly applicable to the present case.
Whether the request was "accompanied by" the warrant
Before dealing with that qualification we should dispose of the submission made to Davies J., and repeated before us, that the only request for extradition was that made by Note no.151 of 20 October 1987, which request had not been "accompanied by" an appropriately executed United States arrest warrant. In making this submission counsel point out that Note no.27, of 8 March 1988, referred back to Note no.151. They draw from this circumstance the proposition that Note no.27 cannot be regarded as a request, within the meaning of art.XI. We do not agree. Note no.27, in terms, contained a request for Mr Winkler's extradition. The fact that the Note recited the earlier request is not a reason for ignoring the clear words of this fresh request. Furthermore, the request was renewed by Note no.31 of 18 March 1988. We agree with Davies J that the relevant request was constituted by all three notes and that this request was "accompanied by" the prescribed documents.
Upon the assumption that they are correct in submitting that the Note of 8 March did not constitute a "request", counsel for the appellant then say that the request for extradition in the Note of 18 March 1988 was not effective because that request was not "accompanied by" the material required by art.XI(2) of the Treaty. Counsel concede that the phrase "accompanied by" is not to be read literally, in the sense of being required to be in the same envelope. But they say that, while it may be acceptable to speak of a request being "accompanied by" something sent subsequently, it is a misuse of language to speak of a request being "accompanied by" something sent previously. The concession that "accompanied by" is not to be construed literally is supported by an unreported decision of the Queen's Bench Division, Ex parte Muir, 7 December 1987. In that case Lloyd L.J. and Macpherson J. held that "accompanied by . . . such evidence" means accompanied by such evidence at the time when the decision to commit is taken. It is not necessary for us to determine whether we would go that far, but we have no difficulty with the proposition that the phrase "accompanied by" is sufficiently elastic to include all material submitted at about the time of the request and before the expiration of any relevant cut-off date; for example, a date by which, in the absence of the documents, the fugitive must be set at liberty. If it should happen, in a particular case, that some of the relevant documents have already been submitted to the requested state, there is no difficulty in saying that the request is "accompanied by" those documents. The purpose of a provision such as art.XI(2) is to ensure that the requested state has all of the information which it needs in order to determine the request. Where a requested state already holds relevant documents, nothing would be achieved by requiring the requesting state to submit further copies. Extradition treaties are to be interpreted so to give effect in a practical way to the bargain between the two countries which they embody: see Postlethwaite at p 947.
Section 15 and the effect of the Australian warrant
The reservation earlier mentioned arises out of the form of s.15 of the Extradition (Foreign States) Act. Counsel for the appellant accept the validity of the warrant issued by Mr Gilbert on 28 August 1987. But they said, in their outline of submissions, that this warrant "was exhausted after Mr Winkler was brought before the court pursuant to it or, at least, when the magistrate held that there was no jurisdiction to deal with it because of the invalidity of the United States warrant under the Treaty". In oral submissions they referred to an assumption by Mr Williams after 16 March that "the old warrant is in some way still running" and that he, therefore, is a "magistrate before whom the person may be brought". But, according to counsel, the warrant had no effect after 16 March, so that the situation envisaged by s.15(1)(b) of the Act -- "a warrant for the apprehension of the fugitive has been issued under section 16 and a person has been apprehended under the warrant" -- did not apply as at the date of the Attorney-General's second notice, 22 March 1988. It follows, according to the argument, that this notice was invalid, with the result that Mr Williams lacked jurisdiction to deal with the matter further: see the opening words of s.17(6).
There are two fallacies in this argument. The first is to treat a warrant as something which may have a continuing life after its execution. The form of a warrant of apprehension under s.16 of the Extradition (Foreign States) Act was prescribed by the regulations made under that Act. The warrant issued by Mr Gilbert followed that form. The command of the warrant, which was addressed to all members and special members of the Australian Federal Police and all members of the Police Force of each State and Territory, was "to apprehend (Mr Winkler) and bring him, as soon as practicable before a Magistrate in the State or Territory in which he is apprehended to be dealt with according to law". Such a warrant continues in force until the person named therein is apprehended and brought before a magistrate. It constitutes the authority by which the person is detained. But, once the person is brought before the magistrate, the warrant has no continuing effect. Its work is done. Thereafter, the person is under the control of the magistrate, who derives his power not from the warrant but from the statute; in particular, from s.17.

The second fallacy in the appellant's argument flows from the first. If a s.16 warrant expires when the fugitive is brought before the magistrate, there can be no question of it still being in force when the Attorney-General issues a notice under s.15(1)(b). That paragraph applies only to cases where the person has already been apprehended under a s.16 warrant. Contrary to the appellant's submission, the condition contained in the opening words of s.15(1)(b) involves merely a matter of history: has the person been apprehended under s.16? By this we mean, relevantly apprehended. To take up an illustration given by counsel, it would not be enough that the person was apprehended under s.16 some years before, was extradited and subsequently released, returned to Australia, and is now in custody for some unrelated reason.
If the question we pose is answered in the affirmative, no new warrant is needed, the reason being that the person is already under the control of the magistrate pursuant to s.17. On the other hand, if no warrant has been issued under s.16, one will be required in order to initiate the extradition process. Section 15(1)(a) covered this need by providing for the Attorney-General to authorize the issue of a warrant.
In the present case the historical inquiry to which we have referred must be answered by saying that Mr Gilbert issued a warrant for the apprehension of Mr Winkler on 28 August 1987 and that he was apprehended under that warrant. Notwithstanding that he was entitled to be released from his bail, by force of art.XII(4) of the Treaty, he in fact remained subject to the control of the magistrate at the date of the second notice. Accordingly, the Attorney-General rightly proceeded under s.15(1)(b). The second notice was valid and it conferred jurisdiction on Mr Williams to hear the application stemming from the second notice.
Counsel for the appellant emphasise the presence, in s.15(1)(b), of the words "any Magistrate before whom the person may be brought". They say that, at the date of the second notice, there was no such magistrate because there was no person before whom Mr Winkler could validly be brought pursuant to the warrant of 28 August 1987 and that there was no later local warrant.
However, this submission is affected by the error as to the role of the warrant which we have already noted. The warrant was instrumental in having Mr Winkler brought before the Local Court in September 1987. Thereafter he was subject to the control of that Court and bound to appear before it from time to time as required by the particular magistrate who dealt with the matter on each appearance day. If a person, arrested under a warrant, was remanded in custody to appear at a later date it would be a natural use of language to describe him as being "brought" before the magistrate on the remand day. Perhaps the phrase "may be brought" less literally describes the position of a person remanded on bail. But such a person is required, by the terms of the remand and his bail, physically to appear before the magistrate on the remand day. In that sense he is "brought" to the court. Although Mr Winkler was entitled to a discharge from his bail on 16 March 1988, he was not in fact discharged. He remained subject to the direction of the court and was required by the terms of his remand and bail to appear before the magistrate on subsequent occasions. These occasions included 23 March 1988 and the hearing days in July and December when the second Attorney-General's notice was before Mr Williams.
Notwithstanding his failure to order the discharge of the appellant's bail on 16 March, Mr Williams had jurisdiction to hear and determine the application made to him pursuant to the Attorney-General's notice of 22 March 1988. The appellant's general complaint about the order for surrender fails. So it is necessary for us to consider the contentions of the parties as to the particular charges made against him.
The wire fraud charges: counts 2 - 29
The essence of each of these 28 charges is that the five defendants used the Federal telecommunications system to effect the transfer of a sum of money as part of a fraudulent scheme which they had devised. The charges arise under s.1343 of Title 18, United States Code, which is as follows:

"1343. Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false and fraudulent pretenses, representations or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $1,000 or imprisoned not more than five years, or both."

The scheme alleged against the five defendants is described in considerable detail in the indictment. But it may be summarised quite shortly. One of the defendants, Mr. Renda, controlled a New York finance broker, First United Fund. It is claimed that the defendants agreed that Mr. Renda would cause employees of First United to solicit investors to deposit funds with one of two Kansas City financial institutions, Indian Springs State Bank (ISSB) and Coronado Federal Savings and Loan Association (CFSL). This was to be achieved by informing the investors that the relevant institution would pay a particular rate of interest, higher than that usually available. (In fact neither institution had agreed to pay the higher rate. The extra money would be paid by First United, any queries being met with an explanation such as "computer error").
It was further alleged that the defendants would arrange with ISSB and CFSL to lend one half of the moneys deposited with them through First United to approved borrowers introduced through Mr Winkler and Mr Daily. The borrowers were to be introduced as creditworthy people offering adequate security. But, according to the allegations, the persons to be introduced as borrowers were to be uncreditworthy people recruited by or on behalf of the defendants. Section 1343 becomes relevant because the moneys raised from depositors were to be transmitted to ISSB or CFSL by means of the federal telecommunications system.
In a deposition tendered to Mr Williams, Dr Monroe, a trial attorney employed by the United States Department of Justice, Criminal Division, explained that it is sufficient, for the purposes of s.1343, if it is established that the scheme to defraud is substantially the same as the one cited in the indictment; it is not necessary to prove all the details alleged. Furthermore:-

". . . the law does not require that the wire communications cited in the indictment were crucial or played a critical role in the scheme as the proof of the interstate wire communication is necessary only to confer federal jurisdiction and to place the case and controversy in the Courts of the United States. It is only necessary to establish that the wire communications were sent between two states in furtherance of the overall scheme to defraud."

Even though each separate use of a wire communication in interstate or foreign commerce in furtherance of a scheme to defraud constitutes a separate offence, Dr Monroe explained that nevertheless the gravamen of the offence is the scheme to defraud.
Section 1343 has no counterpart in Australian law; although, of course, a scheme such as that alleged in each of the counts would be a criminal conspiracy involving the making of false pretences at two stages: to the initial depositors, in relation to the rate of interest payable by ISSB or CFSL, and to ISSB and CFSL in relation to the creditworthiness of the people introduced by Mr. Winkler and Mr. Daily as applicants for loans. But it does not matter that there is no exact parallel to s.1343 in Australian law: see Commonwealth v Riley (1984) 5 FCR 8 at p 16, noting that this decision was affirmed on appeal in the High Court sub.nom. Riley v The Commonwealth (1985) 159 CLR 1. The question, insofar as the Extradition (Foreign States) Act was concerned, is whether each of the alleged offences against s.1343 constitutes an "extradition crime" within the meaning of s.4(1A) of that Act. We set out the terms of that sub-section, and of sub.s (1B) which bore upon it:

"(1A) An offence against the law of, or of a part of, a foreign state (including an offence against such a law relating to taxation, customs duties, foreign exchange control or any other revenue matter) for which a requisition for the surrender of a person has been made to the Attorney-General is an extradition crime for the purposes of this Act if, but only if -

(a) the maximum penalty for the offence is death or imprisonment for not less than 12 months; and

(b) had a relevant act or omission by the person taken place, at the time when the requisition was made, in, or within the jurisdiction of, the part of Australia where the person was found, that act or omission would have constituted an offence against the law in force in that part of Australia the maximum penalty for which is death or imprisonment for not less than 12 months.

(1B) The reference in paragraph (1A)(b) to a relevant act or omission by a person is a reference to -

(a) an act or omission by the person -

(i) which is, in or in connection with the relevant requisition, alleged to have taken place; or

(ii) of which evidence is produced in connection with the relevant requisition; or

(b) any act or omission that is equivalent to an act or omission referred to in paragraph (a)."

Mr. Winkler was "found" in New South Wales. As a result, the law of that State is the relevant Australian law for the purposes of these proceedings.
The affidavit of Dr Monroe establishes that para (a) of s.4(1A) is satisfied in this case. "Wire fraud" is an offence against the law of the United States the maximum penalty for which is in excess of 12 months imprisonment. The wire fraud counts contain two elements each of which involves acts which, if they had taken place in New South Wales, would have constituted an offence against New South Wales law carrying a maximum penalty of not less than 12 months: the false pretence made to each of the investors which deposited the sum of money the subject of the transmission with ISSB or CFSC and the unlawful conspiracy which was the "scheme or artifice" alleged in each count.
It follows that counts 2 to 29 of the indictment each allege an "extradition crime", within the meaning of s.4(1A) of the Act, for which extradition may be granted.
However, it is insufficient to have regard only to the provisions of the Act. The provisions of the Treaty must also be taken into account.
Article II(1) provides:-

"(1) Persons shall be delivered up according to the provisions of this Treaty for any of the following offences provided these offences are punishable by the laws of both Contracting Parties by a term of imprisonment exceeding one year or by death.

1. Murder or wilful murder; assault with intent to commit murder.

2 - 14 . . .

15. Obtaining any property, money or valuable securities by false pretences or other form of deception.

16 - 29 . . ."

Bearing in mind the description of criminal conduct contained in item 15, the provisions of para 3 of art.II of the Treaty are relevant when considering counts 2 to 29 of the indictment:-

"(3) Extradition shall also be granted for any offence against a federal law of the United States of America of which one of the above-mentioned offences is a substantial element, even if transporting or transportation or the use of the mails or of interstate facilities is also an element of the specific offence."

The false pretences made to each of the investors and the false pretences to be made to ISSB or CFSL were each a "substantial element" in the offences charged by counts 2 to 29. In each case there was another element, the use of the federal wire facilities, but para (3) of art.II expressly contemplates such a situation. The use of wire facilities was simply an example of the use of an "interstate facility, which use constitutes a "jurisdictional element" in the offence: see per Gibbs C.J., Wilson and Dawson J.J. in Riley at p 11. As we see the position, para (3) covers each of the "wire fraud" counts.

In Riley, Gibbs C.J., Wilson and Dawson J.J., left open the effect of para (3) of art.II. They preferred to rest their decision on para (2) which reads:-

"Extradition shall also be granted for any other offences that are made extraditable under the extradition laws of Australia and which are felonies under the law of the United States of America."

This paragraph is equally applicable to the present counts. As noted, each of them is extraditable under the extradition laws of Australia. According to the affidavit of Dr Monroe, s.1 of Title 18 of the United States Code provides that "any offense punishable by death or imprisonment for a term exceeding one year is a felony". Accordingly, "wire fraud" is a felony and the requirements of para (2) are met.
We turn to the sufficiency of the evidence to support counts 2 to 29. In that regard, the critical question is whether there was evidence before Mr. Williams, in relation to each count, of the commission of a relevant act which, if it had been committed in New South Wales, would have justified Mr. Winkler's committal for trial for an offence carrying a maximum penalty of not less than 12 months' imprisonment. (As to the relevant standard being the sufficiency of the evidence to justify committal for trial, see Prevato v Governor, Metropolitan Remand Centre (1986) 64 ALR 37 at pp 58 - 59. The comments there made were directed to the Australian - Italian Extradition Treaty but the Australia - United States Treaty is similarly worded in relevant respects).
Although the contrary is argued on behalf of Mr Winkler, we have no doubt that the evidence did meet the required standard. There was clear evidence of an unlawful conspiracy. It is not necessary to make a detailed analysis of the depositions that were put before the magistrate. There was evidence showing a strong connection between Mr Winkler and Mr Renda of First United and Mr Winkler and Mr Le Master, the President of ISSB. The deposition of Mr Joseph DeCarlo, a former Vice-President of First United, claimed that Mr Winkler was aware of and involved in employees of First United misquoting interest rates to credit unions. He also alleged that in late 1982 Mr Winkler and Mr Renda told him that they had arranged with Mr Le Master that thenceforth ISSB would insert the higher (incorrect) interest rate in its certificates of deposit but that First United would pay to ISSB the "interest rate differential". Mr DeCarlo also deposed to the arrangement that was entered into between First United and CFSL; however his knowledge of Mr Winkler's involvement with that institution was based on what Mr Renda told him. It is safer to have no regard to that evidence. Although it would be admissible on a conspiracy trial in which both Mr Winkler and Mr Renda were co-defendants, we have no knowledge of Mr Renda's circumstances. In particular, we do not know whether the charges that were laid against him have been dealt with.
Ms Darlene McGinness and Ms Marjorie King were, respectively, officers of ISSB and CFSL in 1982 and 1983. The duties of each officer included the responsibility of issuing Certificates of Deposit (CD's) to investors who made deposits with their bank. In each case they stated that their bank received deposits from various credit unions through the agency of First United Fund. They described the manner in which these deposits were received in terms that are strikingly similar. It is sufficient to quote from Ms King's affidavit:-

"These deposits, as arranged by Franklin A. Winkler, and Daily were to be received at CFSL in the following manner: the investor would wire transfer a deposit of $100,000 through the Federal Reserve Bank Telecommunications System (a/k/a the 'Fed Wire') through the Federal Reserve Bank of Kansas City, Missouri, to the account of CFSL at the Commercial National Bank of Kansas City, Kansas. I know from my employment at CFSL that CFSL was not a member of the Federal Reserve Banking System and had an arrangement with the Commercial National Bank of Kansas City, Kansas, as its correspondent bank for the purpose of initiating and receiving wire transferred deposits through the Federal Reserve Banks Telecommunications System."

This passage of evidence, without more, is sufficient to establish the transmission of moneys in interstate commerce by means of a wire communication. The contents of the affidavit of Ms McGinness are to the like effect. Ms McGinness and Ms King separately identified by name the individual credit unions which deposited moneys. Those are the names stated in counts 2 to 29 respectively.
The first step in linking the interstate transmissions of moneys to the fraudulent scheme comes from letters written by Mr Winkler on 15 July 1982 to ISSB and on 17 November 1982 to CFSL. In his letter to ISSB, Mr Winkler allegedly wrote:-

"1. A number of qualified investors who will become limited and/or general partners in certail real estate investments (formed by Sam Daily Realty and myself) will borrow from your bank up to $100,000.00 each at a rate of 5% over the New York C.D. Composite rate, . . .

2. We have agreed that your bank will lend to such qualified limited and/or general partners up to a total of $1.4 million in the manner outlined above, it being understood that only credit worthy and financially stable investors who meet your qualifications will be eligible for such loans."

The letter of 17 November 1982 to CFSL was virtually identical. In particular, it used the same words:-

". . . it being understood that only credit worthy and financially stable investors who meet your qualifications criteria will be eligible for such loans."

The final step in the evidentiary assessment calls for an examination of the evidence that relates to the fraudulent purpose. On this subject it was suggested that the evidence before the magistrate was inadequate in that depositions were tendered from only some of the persons who borrowed money from one or other of the banks. The suggestion was that there should have been direct evidence in respect of each alleged borrowing. That proposition overlooks, in our opinion, the true nature of the charges that have been laid against Mr. Winkler and his co-defendants. The accusation that he faces is that, on 28 separate and identified occasions, for a fraudulent purpose he and his co-accused were instrumental in having certain credit unions transmit funds by interstate wire. It was necessary to place before the magistrate sufficient evidence with respect to 28 interstate wire transmissions but it was only necessary to proffer appropriate evidence of one fraudulent purpose - so long as that single purpose was appropriately connected back to each of the 28 transmissions. But, even though it was necessary to connect the 28 transmissions with the fraudulent purpose (and even though particulars were given of actual loans made by ISSB and CFSL), it was not necessary to do a matching or tracing exercise to show that money received by one of the banks from a credit union was, in turn, advanced, in whole or in part, to a particular borrower. It is sufficient, in our opinion, if the evidence established, to the requisite degree, the relevant transmission of moneys for the purpose of executing the fraudulent scheme.

When the matter came back before the magistrate, who by then had received the new Attorney-General's notice, the normal procedure in an application for extradition recommenced. Ultimately, as I have said, an order for the appellant's committal to prison to await the Attorney-General's warrant for his extradition was made, and confirmed at first instance, though the basis of it was substantially varied. As a result of the course the matter had taken, a number of points arose on the hearing of the appeal. The first relates to the validity and effect of the second Attorney-General's notice. (I do not think there can be any doubt that the first Attorney-General's notice was spent when the first decision was given by the magistrate, against which there has been no appeal, that the documents accompanying the original requisition did not comply with the treaty.)
The arguments about the second Attorney-General's notice must be seen against the background of the dual procedure for which the Extradition Act and the treaty both provide. The nature of this procedure has been explained in a number of cases; I summarized it in Schlieske (No 2) (supra) at 420 in terms which related only to the Extradition Act, but nevertheless are sufficient for present purposes:

"There are two procedures by which a fugitive may be brought before a magistrate pursuant to the provisions of the Act relating to the surrender of fugitives to a requesting State. By the one procedure, the requesting State makes a requisition upon which the Attorney-General, in the exercise of a discretion, may pursuant to s 15(1)(a) of the Act 'by notice in writing in accordance with the form prescribed for the purposes of this paragraph, state that the requisition has been made and authorize the issuing by any Magistrate of a warrant for the apprehension of the fugitive'. Where this procedure has been followed, a magistrate may then issue a warrant pursuant to s 16(1)(a) of the Act, and the fugitive, upon arrest, may be brought before a magistrate with a view to the hearing of the committal proceeding. Where the other procedure is adopted, the warrant is issued first under s 16(1)(b), and after the apprehension of the fugitive in pursuance of made by the foreign State, the Attorney-General may issue in accordance with s 15(1)(b) a notice in writing informing a magistrate that the requisition has been made."

Section 15(1) is in the following terms:

"Subject to sub-section (2), where a requisition for the surrender of a fugitive who is, or is suspected of being, in or on the way to Australia is made to the Attorney-General by a foreign state, the Attorney-General may, in his or her discretion-

(a) if a warrant for the apprehension of the fugitive has not been issued under section 16 - by notice in writing in accordance with the form prescribed for the purposes of this paragraph, state that the requisition has been made and authorize the issuing by any Magistrate of a warrant for the apprehension of the fugitive; or

(b) if a warrant for the apprehension of the fugitive has been issued under section 16 and a person has been apprehended under the warrant - by notice in writing in accordance with the form prescribed for the purposes of this paragraph and directed to any Magistrate before whom the person may be brought, inform the Magistrate that the requisition has been made.

Section 16(1) provides:

"Where -

(a) a Magistrate is authorized by the Attorney-General by a notice under paragraph 15(1)(a) to issue a warrant for the apprehension of a fugitive; or

(b) an application is made as prescribed to a Magistrate for the issue of a warrant for the apprehension of a fugitive who is, or is suspected of being, in Australia, and the Magistrate is informed, by information on oath or affirmation, that a warrant for the apprehension of the fugitive has been issued in a foreign state and is in force, the Magistrate shall issue a warrant for the apprehension of the fugitive in accordance with the appropriate form prescribed for the purposes of this sub-section.

The terms of these provisions are reflected in the opening words of s.17(6), the provision which particularly empowers the magistrate to make an order that may result in the extradition from Australia of a fugitive. Section 17(6) commences:

"If the person was apprehended under a warrant issued in pursuance of an authority by the Attorney-General in a notice under paragraph 15(1)(a) or the Magistrate receives a notice by the Attorney-General under paragraph 15(1)(b) and . . . ."

The appellant's point can now be briefly stated. He had succeeded in the proceeding based on the first Attorney-General's notice, on the ground of the failure of the United States to comply with Article XI of the Treaty. As a further consequence of that failure, the United States did not comply with Article XII, under which the original warrant for his arrest had issued. So far as might concern any proceeding based on the first Attorney-General's notice (which related to the invalid initial requisition), the appellant was unqualifiedly entitled to be at liberty, and to have the recognizances upon which he had been admitted to bail discharged. If a later requisition was received under the Treaty, and a later Attorney-General's notice issued pursuant to that requisition, it was no longer right to regard him, for the purposes of s.15(1)(b), as "a person (who) has been apprehended under the warrant (issued pursuant to Article XII of the Treaty and s.16(1)(b))". Putting the point more precisely, the United States was starting again with a new requisition upon which the Attorney-General was issuing a new Attorney-General's notice; so far as concerned the new requisition and the new notice, the appellant was not a person who had been apprehended under any relevant warrant. Accordingly, the second Attorney-General's notice should have issued under s.15(1)(a), not under s.15(1)(b). The point was said to be vital since the distinction between the two types of notice is carried through into the empowering provision in s.17(6).
The respondent argued it was sufficient that, historically, a warrant had issued, upon which the appellant had been apprehended. I find this unconvincing. Historically, a particular fugitive may have been arrested upon a warrant in pursuance of an attempted extradition to a third country, or in respect of a different offence. Neither of these would justify the use of s.15(1)(b), which speaks of "a warrant . . . issued under section 16". That must mean a warrant in respect of the same requisition, although in advance of its receipt where a provisional arrest had been made. In this case, that had been done, and the proceeding based on it had been followed to the end. If it is remembered that the dual procedure, which has a long history in extradition law going back far earlier than the Extradition Act, is the source of the two types of Attorney-General's notice, there can in my opinion be no doubt the only relevant warrant is one related in the way I have described to the requisition upon which the notice itself issued.
But is that the end of the matter? The purpose of the notice is to signify the discharge of the Attorney-General's duties in respect of the requisition (see s.15(2)), and to authorize the magistrate to proceed to deal with the particular application notified to him. There is no fundamental difference between the two types of notice; the variation in the language of the two subsections reflects only the difference between the case where provisional arrest has been effected before delivery of the requisition, and the case where the requisition is itself the initiating step. In each case, the function of the notice with respect to the hearing before the magistrate is precisely the same. What the notice tells the magistrate is, in the one case, expressed by the words "state that the requisition has been made", and in the other, by the words "inform the Magistrate that the requisition has been made". This is not a real difference. If the absence, from a s.15(1)(b) notice, of the authority to issue a warrant, which is contained in s.15(1)(a), is of any significance, that significance would have no relevance to the authority of the magistrate to make the order under appeal, which rests on the later provision in s.17(6). In my opinion, the appellant is correct in contending that the notice was issued under the wrong provision, but both provisions authorized the issue of relevantly the same notice, pursuant to the same discretion, required to be exercised upon the same considerations. In those circumstances, I do not think there was any invalidity in the notice which issued. (cf. the refusal of Lord Kilbrandon to give effect to an error "of a technical character" in Sotiriadis (supra) at 36 - though, there, the question was whether a habeas corpus should issue.)
An analogous problem arose in England in Athanassiadis v. Government of Greece, a decision of the House of Lords given in 1967, but reported as a note at 1971 AC 282. There, as in this case, the fugitive was arrested pursuant to a provision of a treaty which permitted provisional arrest, to be followed by receipt of documents within a specified period. The documents not having been received within that period, it was clear under the relevant provision of the treaty, as Viscount Dilhorne said at 288, that "the arrest of the appellant should not have been maintained." However, the arrest was maintained, and an appropriate requisition for extradition was in due course received. The Home Secretary thereupon sent to the Chief Magistrate an order under s.7 of the Extradition Act 1870, informing him of the receipt of the requisition and requiring him to proceed in accordance with the legislation. It was pointed out by Viscount Dilhorne at 288-289, as I have pointed out in the present case, that the procedure followed did not involve the issue of a further warrant for the fugitive's arrest, but as he was in fact in custody Viscount Dilhorne held "this was quite unnecessary". After referring to an earlier decision, his Lordship continued at 289:

"If the appellant was not lawfully in custody after July 3 (i.e. the date when, at latest, the documents were required to be received from Greece), he might have been able to obtain his release before he came before the Magistrate in August, but if that were the case, it would not be in my opinion any ground for holding that the warrant of committal issued on August 13 was invalid. After the issue of the warrant, he is not entitled to his release now on the ground that he should have been released before the warrant was issued."

Counsel for the appellant sought to distinguish this case on the ground that it concerned the equivalent under the United Kingdom Act of a notice under s.15(1)(a), not the equivalent of a notice under s.15(1)(b). I think this is correct, as appears from a comparison between s.7 and s.8 of the Extradition Act 1870, which is conveniently set out as an appendix to Stanbrook, The Law and Practice of Extradition (1980) at p 150 et seq. In Athanassiadis (at 284 and 288), it is made plain that the order of the Home Secretary issued under s.7; such an order would have been the equivalent of an Attorney-General's notice under s.15(1)(a). However, it is also clear that no further warrant was issued by the magistrate, and in substance the matter proceeded on precisely the same footing as the present case.
The appellant's next submission was that the request of 18 March 1988 was not "accompanied by" the requisite warrant of arrest within the meaning of Article XI(3), while the request of 8 March 1988 was not "accompanied by" all the requisite evidence. It was said the request of 18 March 1988 could not be treated as accompanied by a document which preceded it. Counsel referred to an unreported decision of a divisional court in Ex parte Muir, in which judgment was delivered on 7 December 1987 by Lloyd L.J. and Macpherson J. Article VII(3) of the Extradition Treaty between Great Britain and the United States required a request to be "accompanied by a warrant of arrest" (as well as by certain evidence). Lloyd L.J. said of this provision at page 5:

"Mr Lawson concedes that the words 'accompanied by' in Article VII(3) cannot bear its (sic) literal meaning. It cannot mean that the request and the evidence must come by the same post or be contained in the same parcel. The evidence, he accepts, may come later. But once it is accepted that the evidence may come later than the request, I can see nothing in the Treaty which requires the evidence to be furnished within the sixty-day limit. Mr Lawson argues against that that until the evidence is received, the request is unaccompanied, and that an unaccompanied request is an incomplete request and is therefore not a request for the purpose of Article VIII(2).

For my part, I regard that argument as far too subtle. In my judgment, Mr Grenfell was right when he submitted that 'accompanied by . . . . . such evidence' etc. means accompanied by such evidence at the time when the decision to commit is taken. If there is delay in furnishing the evidence, then the applicant's remedy lies in applying to the Bow Street Magistrates to fix a date. That construction is consistent, at least, with Article IX(2) of the Treaty which provides: 'If the requested Party requires additional evidence or information to enable a decision to be taken on the request for extradition, such evidence or information shall be submitted within such time as that Party shall require.'

If the requested Party requires additional evidence towards the end of the sixty-day period, it is obvious that the requesting Party may only be able to furnish that evidence after the sixty-day period has elapsed."

In the context of the Treaty with which we are concerned and of the Australian Extradition Act, I have some difficulty with the proposition that the words "accompanied by" in Article XI may be so loosely construed as to be satisfied by a document, received however late, as long as it arrives in time to be presented to the magistrate before he makes his decision whether or not to commit the fugitive to prison to await the warrant of the Attorney-General for his extradition. Although, by virtue of s.10 of the Extradition Act, the Act must be construed subject to the treaty, the treaty itself should not be read in isolation; it was concluded after the passing of the Act, and the Act forms part of the context in which it should be read. There are a number of duties owed by the Attorney-General in relation to a requisition, the due discharge of which would require him to have regard to the terms of the requisition. (See Schlieske (No 2) (supra) at 424, 426.) I do not think it would be consonant with the scheme of the Act to read the words "accompanied by" in a sense which would include documents received after the date of the Attorney-General's notice. Such documents could not have been taken into account by the Attorney-General when deciding to issue his notice. The fact that Article XIII of the Treaty, like the article referred to by Lloyd L.J., permits Australia to request additional evidence or information, within a period to be specified by Australia, does not seem to me to require any different conclusion. It may be that, in cases where Article XIII is utilized, there will by necessary implication be a variation of the effect of Article XI, but that conclusion does not require a general loosening of the language of the Article.
However, for the same reason, there is no need to construe Article XI as requiring all the documents to be in the one package. If the purpose is to ensure that certain material is available to the Attorney-General when he considers the issue of his notice, that purpose will be equally well served where the documents have come to him within a reasonable time prior to his making that decision. I do not see any reason to reject, as accompanying documents, documents received shortly before the requisition, while accepting documents received shortly afterwards. In both cases, I think it is a question of fact whether the documents are documents which, in the relevant sense, accompanied the requisition. In the present case, where a mere ten days elapsed between the requisitions of 8 March and 18 March, I think it is also permissible to regard those two documents as constituting one requisition. For myself, I am unable to regard all three of the requisitions received in this case over a period of nearly five months as one requisition, except in the sense that the earlier document may be incorporated by reference in the later documents. The view I have taken, however, is sufficient to dispose of the appellant's contention on this point.
The appellant also put a bolder proposition. Citing R. v. Bow Street Magistrates, Ex parte Mackeson (1981) 75 Cr App R 24; R. v. Hartley (1978) 2 NZLR 199 and Trimbole v. Governor of Mountjoy Prison (1985) ILRM 465, counsel for the appellants submitted that the unlawful holding of Mr Winkler to his recognizances, when they should have been discharged, so tainted the proceedings thereafter that the order of committal was invalid. This submission is, of course, in the teeth of Athanassiadis (supra), where precisely the same illegality occurred. In my opinion, the present case is clearly distinguishable from the authorities on which the appellant relies. They were cases of flagrant disregard of a fugitive's rights, and even of the rule of law itself. Such cases necessarily attract a consideration of the principle discussed by the High Court in Bunning v. Cross (1978) 141 CLR 54. Here, no more than an error of law was shown, though a serious one, and the same result should follow as followed in Athanassiadis.
Counts 2 to 29 inclusive of the indictment referred to in the requisition are counts of wire fraud. Wire fraud is an offence created by s 1343 of Title 18 of the United States Code, which provides:

"Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false and fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $1,000 or imprisoned not more than 5 years, or both."

Expert evidence of the effect of this provision in United States law, being a foreign law, was appropriately tendered before the magistrate. This evidence showed that it would not be necessary for the prosecution to prove "all of the details alleged in the indictment concerning the precise nature and purpose of the scheme. Thus, although an indictment may list numerous purposes of a scheme and numerous acts in furtherance of the scheme, a trier of fact need only conclude that the scheme to defraud proved in court is substantially the same as the one cited in the indictment." It is also not necessary to prove that the scheme succeeded.
The evidence of United States law also makes it clear that, although the offence charged in these counts is known as "wire fraud", the use of the wire does not constitute the essence of the crime; on the contrary, it is simply a jurisdictional element bringing the matter within reach of federal law. As the expert witness put it:

"(T)he law does not require that the wire communications cited in the indictment were crucial or played a critical role in the scheme as the proof of the interstate wire communication is necessary only to confer Federal jurisdiction and to place the case and controversy in the Courts of the United States. It is only necessary to establish that the wire communications were sent between two States in furtherance of the overall scheme to defraud.

Finally, the law of the United States does not require proof that the use of a wire communication was intended as the specific or exclusive means of accomplishing the alleged fraud. Thus, a variety of vehicles may be used in furtherance of a scheme, such as the mails or meetings. It is only necessary that the wires be used as one of the mechanisms to further the scheme.

To recapitulate, what must be proved is that the accused knowingly and willfully devised or intended to devise a scheme to defraud which is substantially the same as the one alleged in the indictment; and that the use of wire communications in interstate commerce was closely related to the scheme in that the accused either used the wire communications or caused them to be used in an attempt to execute or carry out the scheme. To 'cause' the use of a wire transmission is to do an act with the knowledge that the use of the wire will follow in the ordinary course of business or where such use can reasonably be foreseen. It is not, however, necessary that the use of a wire communication device by the participants themselves be contemplated; it is sufficient if the wires were in fact used to carry out the scheme, and if use of a wire by a participant or somebody else was reasonably foreseeable.

Each separate use of wire, telephone, telex or teletype communications in interstate or foreign commerce in furtherance of a scheme to defraud constitutes a separate offense (sic). As the gravamen of the offense is the scheme to defraud, such a scheme, if it precipitates a number of separate wire communications, may be alleged in the indictment, and each wire transmission caused for the purpose of executing that scheme, or in other words, in furtherance of that scheme, constitutes a separate offense."

On this basis, the counts in question may be divided into two groups, counts 2 to 13 involving a scheme (to defraud the Indian Springs State Bank of Kansas City) which precipitated the wire communications separately referred to in those counts, and counts 14 to 29 alleging a distinct scheme (to defraud Coronado Federal Savings and Loan Association of Kansas City) which precipitated the wire communications alleged in those counts.
The two schemes were of the same nature, and what was involved has been set out in the joint judgment. It is unnecessary for me to repeat the details. As has been said, under United States law they need not all ultimately be the subject of proof, provided the substance of them is established. In my view, the same evidence which Davies J. rightly held made out the conspiracy count (a count which I will discuss later) also establishes the scheme for the purposes of the counts presently under discussion. I agree that much of the detail is inadequately proved, but I accept the expert evidence of the United States law as demonstrating that in each case it is sufficient to prove the substance of the scheme. It was in the nature of that scheme that there would be separate wire transmissions in respect of the investments by interstate investors, and the separate transmissions were the subject of detailed evidence. On this basis, I agree with Wilcox and O'Loughlin JJ. that counts 2 to 29 were made out.
Because wire fraud is a felony under United States law, and having regard to paragraph 2 of Article II of the Treaty and s 4(1A) of the Extradition Act, wire fraud is an extradition crime: Riley v. The Commonwealth of Australia (1985) 159 CLR 1 at 11. In the case cited, it was held that paragraph 3 of Article II of the Treaty did "not allow extradition to be based on an offence of continuing criminal enterprise (an offence under United States law having special elements not related to jurisdiction but to the substance of the crime)." (See the joint judgment ubi cit. supra). However, the very distinction there taken emphasizes that in the present case paragraph 3 would provide an additional ground for holding that the United States offence is an extradition crime under the Treaty.
I turn to count 30. This is a count alleging a conspiracy to commit offences against two different sections of Title 18 of the United States Code. The first is s.1001:

"Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully (sic) falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both."

The second is s.1343, the section proscribing wire fraud, to which reference has already been made. There was ample evidence to support count 30, but the difficulty is that the Attorney-General's notice, which authorised the magistrate to hear the application for the extradition of the appellant, described the only offence of conspiracy to be considered in the application as an offence of "conspiracy to commit wire fraud". That raises the question whether the magistrate was empowered to make an order which would have the effect that the appellant could be extradited to stand trial in the United States for a conspiracy, not limited to the commission of wire fraud, but including violation of s.1001. The magistrate was of the opinion that he had no power to do this, but could make an order in reliance upon so much of count 30 as alleged conspiracy to commit wire fraud; however the terms of the actual order made by him failed to make clear the limitation which his reasons show was intended.

In my opinion, the magistrate rightly regarded the Attorney-General's notice as limiting his authority, and the form of order made should be varied to reflect that limitation.
In In re Nielsen 1984 AC 606 at 619 Lord Diplock said:

"The expression 'the crime of which he is accused' in section 10 thus means the crime specified in an order by the Secretary of State to the magistrate to proceed to issue his warrant for the apprehension of the fugitive criminal to show cause why he should not be surrendered for that crime pursuant to the Acts of 1870 to 1932. The magistrate has no jurisdiction under section 10 to issue his warrant for committal of the fugitive criminal for any crime other than one so specified in an order to proceed."

Section 10 of the United Kingdon Extradition Act 1870, to which Lord Diplock was referring, is the equivalent of s.17(6) of the Extradition Act. In s.17(6) the matter is made even clearer by the opening words, which expressly condition the magistrate's right to proceed to hear the matter on the prior authority of, or the receipt of a notice by, the Attorney-General. I discussed the role of the Attorney-General, and the place of the notice in proceedings under the Extradition Act, in Schlieske v. Federal Republic of Germany (supra), and shall not here repeat that discussion. But it is important to bear in mind that the issue of an Attorney-General's notice, in respect of particular offences alleged against a fugitive, is discretionary, so that the omission of an offence cannot just be ignored as necessarily accidental.

The corresponding procedure under sections 5 and 7 of the United Kingdom Fugitive Offenders Act 1967 involves an order of the Secretary of State, referred to as an authority to proceed. In Regina v. Governor of Pentonville Prison, Ex parte Osman, a decision of a divisional court (Lloyd L.J. and French J.) delivered in 1988 but reported (1990) 1 WLR 277, an authority to proceed stated the charges in quite unnecessary and (as it turned out) troublesome detail. After so finding, Lloyd L.J. added at 303:

"But the harsh fact is that the charges are there. We do not see how the magistrate could ignore the particulars without giving leave to amend the authority to proceed. That, however, would have been for the Home Secretary, not for him."

Lloyd L.J. went on to refer at 303-304 to earlier authorities in which it had been held "that the magistrate could not go outside the language of the authority to proceed".

Ex parte Osman was cited in In re Naghdi (1990) 1 WLR 317, an extradition case. There, an order to proceed issued by the Secretary of State described the offences in question (see 321) as:

"The crimes of attempting to obtain property by deception, obtaining property by deception, obtaining services by deception and using a false instrument within the jurisdiction of the Government of the United States of America."

Subsequently, as Woolf L.J. said at 322, "detailed particulars" of the offences alleged were furnished to the fugitive. Woolf L.J., accepting that "it is essential that the applicant has a proper opportunity to meet the case which is being put forward for his extradition at the hearing and this involves his being informed of the necessary details of the offences", described the issue as "the technical one, as to whether this was done in the right document." Speaking for the divisional court, he pointed out that in In re Neilsen the crimes alleged were described in similarly general terms, and rejected the proposition that the order to proceed was deficient because it contained no details of the offences. However, it seems to me that it is important to appreciate the court in In re Naghdi was not, and did not see itself as, differing in any way from the reasoning of the court in Ex parte Osman. In re Naghdi did not involve any departure from the terms of the order to proceed, but merely a particularisation of them. Indeed, at 323, Woolf L.J. expressly acknowledged that "the notice to proceed . . . does limit the jurisdiction of the committing magistrate".

Accordingly, I agree, though for different reasons, that the appeal in respect of count 30 should be allowed to the extent I have indicated.
I agree, for the reasons given in the joint judgment and by Davies J., that the cross-appeal in respect of counts 33 and 34 should be dismissed.
Having regard to the extent to which the matter has been complicated, and the cost of it magnified, by the manner of its conduct by the respondents, and to the significant (though partial) success of the appellant, I would order the first and second respondents to pay one half of the appellant's costs of the appeal and of the proceedings below.

[1990] FCA 262

18 JUNE 1990