Wong, Y.L. (Peter Wong) v Evans, R.H.

[1985] FCA 21

Re: YAU LEUNG WONG (PETER WONG)
And: ROBERT HENRY EVANS; BRUCE WALLACE JOHNSTON and DIRECTOR OF PUBLIC
PROSECUTIONS
No. 338, G.355 and G.335 of 1984
Administrative Law - Extradition - Crown
4 FCR 228 / 59 ALR 392

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)

CATCHWORDS

Administrative Law - Judicial Review - Criminal proceedings - Applicant extradited to Australia from Hong Kong - Charges as framed by committing magistrate differ as to conspirators from charges framed by extraditing magistrate in Hong Kong - Whether the applicant may lawfully be detained and tried upon charges as framed at committal proceedings - Validity and effect of consent to charges subsequently given by Hong Kong Governor.

The Queen v. Nicholl; ex parte Boog (1973) 21 FLR 469; Commonwealth of Australia v. Riley (Full Court, 11 December 1984); In Re Nielsen (1984) 2 WLR 737 referred to; Extradition (Commonwealth Countries Act 1966 s.22; Discretion of Court to examine whether there was a prima facie case against the applicant; Lamb v. Moss (1983) 49 ALR 533; Seymour v. Attorney-General (Full Court, 7 November 1984) applied.

Extradition - Extradition from Commonwealth countries - Trial of person extradited - Trial for offences to which requisition for surrender relates - Comparison of offences - Extradition (Commonwealth Countries) Act 1966 (Cth), s 22.

Extradition - Extradition from Commonwealth countries - Trial of person extradited - Requested country consenting to trial of extradited person - Consent to "prosecution" - Prosecution to include detention - Consent to operate prospectively - Extradition (Commonwealth Countries) Act 1966 (Cth), s 22(a)(ii).

Crown - Criminal proceedings - Costs - Review proceedings civil proceedings - Costs follow event - Administrative Decisions (Judicial Review) Act 1977 (Cth).

HEADNOTE

Held: (1) The inhibition against prosecution in Australia contained in s 22 of the Extradition (Commonwealth Countries) Act 1966 is imposed by reference to the initial request for surrender rather than by reference to the finding of the magistrate in the requested country. The relevant comparison is then between "the offence to which the requisition for his surrender relates" and the offence to be prosecuted in Australia.

R. v. Nicholl; Ex parte Boog (1973) 21 FLR 469; In re Nielson (1984) 2 WLR 737, considered.

(2) A consent, purportedly given in compliance with s 22(a)(ii) and which consents "to the prosecution", will include consent not just to the formal trial but to the incidents of the trial which include formal detention. However the consent authorises the presentation in the future of an indictment and it cannot retrospectively authorise detention.

(3) Where an application is made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of criminal proceedings the proceedings under the Act are civil and the usual rule that costs follow the event applies.

HEARING

1984, December 17, 18; 1985, February 12. #DATE 12:2:1985
APPLICATIONS

Applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to review the detention and indictment for trial of a person extradited under the Extradition (Commonwealth Countries) Act 1966 (Cth).

J C Burchett QC and J C Papayanni, for the applicant.

B T Sully QC and N Cowdery, for the respondents.

Cur adv vult

Solicitors for the applicant: Hanley Cameron & Goold.

Solicitor for the respondents: Australian Government Solicitor.

BAG

ORDER

1. The Application be dismissed.

2. The applicant pay the costs of the respondents of the Application.

3. The exhibits may be returned at the expiration of 21 days unless a Notice of Appeal is filed in the meantime.

Orders accordingly

JUDGE1

Two applications have been brought under the Administrative Decisions (Judicial Review) Act 1979 by Yau Leung Wong, also known as Peter Wong, in relation to certain criminal proceedings taken against him.

1. By consent, the two matters were heard together on Monday 17 December 1984. I was informed that the criminal proceedings were listed for mention before the Supreme Court of New South Wales on Wednesday 19 December with a view to fixing a date for trial. It seemed desirable that my view upon these Applications should be announced before the mention. Consequently, having considered the matter in the meantime, I announced on Tuesday 18 December that I had reached the view - for reasons then shortly stated - that the Applications should be dismissed and that formal orders, with full reasons, would be made in due course.

2. On 13 January 1984 the then Attorney-General, Senator Evans, made a requisition for the extradition of the applicant from Hong Kong to Australia. The requisition, which was issued under s.20 of the Extradition (Commonwealth Countries) Act 1966, referred to "six offences of conspiracy to import into Australia prohibited imports (heroin) contrary to paragraph 233B(1)(cb) of the Customs Act 1901". The requisition was accompanied by six warrants for the apprehension of the applicant; one in respect of each of the six offences. Warrant No 55 of 1982 alleged that the applicant "together with David Matthew Gregory, Victor Gordon Hitchcock, Michelle Vivian Heaney and various other persons between 1 August 1980 and 11 March 1981, did conspire together amongst themselves to import a prohibited import, to wit, heroin". Warrants 335, 390, 391, 392 and 393 of 1983 each alleged conspiracies between the applicant and various other named persons between various dates between 26 June 1982 and 23 September 1983. In each case the alleged conspiracy was to import heroin.

3. The requisition resulted in extradition proceedings being taken before a Hong Kong magistrate, Mr I T Heath. That learned gentleman held that a prima facie case had been made out in respect of warrant 55 of 1982 and warrant 390 of 1983 and on 23 March 1984 he issued a Warrant of Commitment in which he particularised the offences in respect of which it had issued. In respect of warrant 390 of 1983 the particulars alleged a conspiracy "with Charles Losurdo, Rifat Hassan Gogebakan, Anthony William Cameron, Samuel Fermia, Peter Michael, Russell Gregory Muir, Mona Veronica Mansfield and divers other persons to import into Australia a prohibited import to wit narcotic goods consisting of a quantity of heroin".

4. The applicant was returned in custody to Australia. Committal proceedings were held before Mr R H Evans, SM, the first respondent to each Application. After lengthy evidence, on 24 August 1984, Mr Evans announced his decision to commit the applicant for trial upon three charges as follows:
   
   

"(1) Conspiracy with David Matthew Gregory and divers other persons between 1 August 1980 and 11 March 1981 to import a prohibited import, to wit, heroin.

(2) Conspiracy with Charles Losurdo, Anthony William Cameron, Eric John Honeysett, Samuel Fermia and Rifat Hassan Gogebakan between about 26 June 1982 and about 23 September 1983 to import heroin; and

(3) Conspiracy with Anthony William Cameron, Peter Michael and Mona Veronica Mansfield between about 26 June 1982 and about 23 September 1983 to import heroin."

1. The first of these three charges was similar to the first of those in respect of which Mr Heath had issued his warrant of commitment; the only difference being the omission by Mr Evans of any reference to Mr Hitchcock or Miss Heaney. Mr Evans explained this omission by saying that the evidence against each of those two persons was "bare". The dates of the alleged conspiracy remained unaltered.

2. The second and third charges each related to the same period as had been mentioned in the second of the two charges relied upon by Mr Heath. However, that charge referred to a single conspiracy between those dates involving the applicant and seven named persons. Mr Evans found, on a prima facie basis, two conspiracies; one involving the applicant and five of those persons, the other involving the applicant and three of them. One person, Mr Cameron, was common to both alleged conspiracies so that all seven persons were named in either one or both of the two substituted offences.

3. The applicant was committed for trial and bail was refused.

4. On 20 September Application G335 of 1984 was filed in this Court. It sought review of Mr Evans' decision to commit upon the basis that the decision contravenes the provisions of s.22 of the Extradition (Commonwealth Countries) Act and that, accordingly, the applicant is entitled to an order of discharge from custody. Upon the following day a further Application, G338 of 1984, was filed. In addition to Mr Evans there was named as a respondent Bruce Wallace Johnston, an officer of police concerned with the prosecution of the charges. This Application challenged the jurisdiction of Mr Evans to commit the applicant for trial upon the re-formulated charges and the sufficiency of evidence to justify the decision to commit. Subsequently, by consent, the Director of Public Prosecutions was added as a respondent and it was agreed that both Applications should be heard together.

5. The major question argued before me was whether the present detention, and proposed trial, of the applicant upon the charges specified by Mr Evans would contravene the provisions of s.22 of the Extradition (Commonwealth Countries) Act. Division 3 of Part II of that Act relates to extradition from "declared Commonwealth countries"; of which Hong Kong is one. Section 19 defines "extraditable crime" as an offence against the law in force in Australia or in a part of Australia the maximum penalty for which is death or imprisonment for a period of not less than 12 months, being an offence that is described in Schedule 1 of the Act or that would be so described if the description concerned contained a reference to any intent or state of mind on the part of the person committing the offence, or to any circumstances of aggravation, necessary to constitute the offence. Section 20 provides for the making of a requisition by the Australian Attorney-General to a declared Commonwealth country for the surrender of, inter alia, a person in that country who is accused of an extraditable crime. Section 21 authorises the bringing to Australia and the delivery to the proper authorities of a person surrendered.

6. Relevantly, s.22 reads:
   
   

"22. Where a person accused or convicted of an extraditable crime is surrendered by a declared Commonwealth country, the person shall not, unless he has been returned, or has had an opportunity of returning, to that country -

(a) be detained or tried in Australia for any offence that is alleged to have been committed, or was committed, before his surrender other than -

(i) the offence to which the requisition for his surrender relates or any lesser offence of which he could be convicted upon proof of the facts on which that requisition was based; or

(ii) any other extraditable crime in respect of which that country consents to his being so detained or tried, as the case may be; . . ."

1. The condition contained in the opening words of s.22 is clearly satisfied in the present case. The question, then, is whether the current detention, and the proposed trial, of the applicant involve any contravention of the prohibition contained in para (a) of the section. The respondents deny any contravention. They rely upon two alternative propositions: first, that the offences in relation to which the applicant is detained, and is proposed to be tried, are the offences to which the requisition for his surrender relates; secondly, and in any event, that consent has been obtained.

2. The resolution of the first of these submissions involves the determination of the meaning of the phrase "offence to which the requisition . . . relates". The Act does not prescribe any particular form of requisition. It does not require that the offence be described in the form of a pleading or that it be particularized. Section 20 merely speaks of a requisition for the surrender of "a person accused . . . of an extraditable crime". That reference takes the reader to s.19 and, in turn, to Schedule 1. That Schedule lists, by name or by description, a variety of offences including item 32, "an offence against the law relating to dangerous drugs, narcotics or pyschotropic substances", and item 34, which includes conspiring to commit an offence described in a previous item. A description of an offence as a conspiracy to import heroin - without particulars as to the co-conspirators or the dates between which the unlawful agreement was in existence - is enough to reveal that the requisition refers to an "extraditable crime". It constitutes a sufficient identification of the offence, the extraditable crime, for the purposes of the s.19 request: See The Queen v. Nicholl ex part Boog (1973) 21 FLR 469 at p 473. No doubt, in practical terms, more will be required. Legislation in each declared Commonwealth country presumably includes a requirement - similar to that contained in s.15(6) of the Australian Act - for there to be tendered to the local magistrate who is asked to order surrender such evidence as would, in his opinion and according to the local law, justify the trial of the person whose extradition is sought if the act or omission constituting the relevant alleged extradition crime had occurred within his local jurisdiction. Certainly this is the position in the case of Hong Kong: see cl. 7 of the Fugitive Offenders (Hong Kong) Order 1967 contained in Statutory Instructions 1967 Pt III Sec. 2, p 5281. In such a case particulars of the alleged offence, sufficient to enable the magistrate to form a judgement on that matter, will be required. However, two points should be noted. First, although the matter turns upon the Hong Kong - rather than the Australian - legislation, it seems that the Hong Kong magistrate is not bound by those particulars, in the sense that a variance between the particulars and the evidence will not matter provided that it can be seen that the conduct disclosed by the evidence is conduct constituting the extraditable crime, as generally defined: cf. Commonwealth of Australia v Riley and others (Full Court, 11 December 1984, not yet reported, at pp 51-52). Secondly, regardless of the terms of the Hong Kong legislation, the relevant comparison for the purposes of Australian law is not between the offence as found by the Hong Kong magistrate and the offence as proposed to be pleaded in a prosecution in Australia but between "the offence to which the requisition for his surrender relates" and the offence proposed to be prosecuted in Australia. Subject to s.22(a)(ii), Australia is bound by its nomination of the offence on the requisition for surrender; it is not bound by the categorization, description or particulars of the offence adopted by the magistrate in the requested country.

3. At first sight it may seem strange that the inhibition upon prosecution in Australia is imposed by reference to the initial requisition for surrender rather than by reference to the finding of the magistrate in the requested country. However, I think that the reasons are apparent. It is a fundamental principle of extradition law, finding expression for Australia both in the subject Act and in the Extradition (Foreign States) Act 1966, that a country seeking the extradition of a person must nominate the crime alleged against that person. The purpose is to enable the requested country to consider whether the crime is one in relation to which it is prepared to surrender the person: the crime may be regarded as one the prosecution of which is offensive to the values of the requested country, or as properly to be regarded as being too trivial, or as obsolete, or as having a political complexion. Disclosure of the identity of the alleged offence will enable the requested country to determine whether there are matters such as these to cause it - whatever the weight of the evidence - to refuse to assist the prosecution of such an offence by surrendering the accused person. It is logical, in that context, that if the requested country does decide to co-operate by surrendering the person whose extradition is sought, the requesting country should be restricted - except with the agreement of the requested country - to offences the nature of which it has disclosed to the requested country.

4. The hearing before the magistrate of the requested country serves an entirely different purpose: the evaluation of the particular evidence against the particular accused person so as to determine whether there is material which, by local standards, is sufficient to indicate conduct which would constitute a criminal offence if that conduct occurred locally. The object - sought to be achieved by the legislation of the requested country - is to ensure that a person will not be extradited to another country unless there is a prima facie case that he or she has done something which is locally regarded as constituting criminal behaviour. The magistrate's role is protective of the interests of the person whose extradition is sought. In the absence of a particular provision, in legislation or in a treaty, the magistrate is not concerned with the law in the requesting country: see In re Nielson (1984) 2 WLR 737 at p 745. That law may be quite different to that in his own, the requested, country. Any formulation by him of the relevant offence, for the purpose of considering whether there is evidence of conduct which would constitute a breach of his local law, may be meaningless in another country operating under a different legal system.

5. It follows, in my view, that a comparison between the offences identified by Mr Heath and those identified by Mr Evans is an irrelevant exercise. The only pertinent question is whether the offences in relation to which Mr Evans committed the applicant for trial, and upon which it is intended that he shall be tried, are offences to which the requisition for surrender relates. That question must be answered in the affirmative. The extradictable crimes in relation to which the requisition was made were each described as "offences of conspiracy to import heroin into Australia". The elements of those offences were revealed to the Government of Hong Kong by the reference to s.233B(1)(cb) of the Customs Act. The offences in relation to which Mr Evans has committed the applicant for trial are each similarly described. They contain the same elements. If, as suggested in Boog by Connor and Fox JJ at p 473, the word "offence" in s.22 refers to an offence with specific ingredients rather than of a broad generic description as in Schedule 1, this requirement is met. The elements, or ingredients, remain identical.

6. The difference between the material submitted by the Australian Attorney-General to the Government of Hong Kong lies not in the identification of the relevant extradictable crimes, or offences, but merely between the particulars which he provided - not under s.20 but for the assistance of the Hong Kong magistrate - and the particulars selected by Mr Evans. In my view, even in the absence of consent, the detention and trial of the applicant upon the charges nominated by Mr Evans would not constitute a breach of s.22.

7. However, the matter does not stop there. On 19 October 1984 the Governor of Hong Kong provided a consent under his hand and seal. The consent recites the decision of Mr Heath, the issue of a warrant for the return of the applicant to Australia and the making of a request to the Governor by or on behalf of the Commonwealth of Australia "for a consent pursuant to section 22(a)(ii) or the Extradition (Commonwealth Countries) Act 1966 of the Commonwealth of Australia to prosecute the applicant "on the following offences", namely the three charges nominated by Mr Evans, and proceeds:
   
   

"WHEREAS I have been advised that there is sufficient evidence to warrant the trial of WONG Yau-leung on the offences requested by the Government of the Commonwealth of Australia if they had been committed in Hong Kong.

NOW THEREFORE the Governor hereby consents to the prosecution of WONG Yau-leung also known as Peter WONG in relation to those requested offences".

1. Counsel for the applicant accept that the offences specified in this document are the offences in relation to which their client is now held and is proposed to be tried. They put two submissions. First, by the document the Governor consents "to the prosecution" of the applicant. This, it is said, is apt to refer to the putting of the applicant upon his trial but not to his detention in the meantime. I do not agree. The document indicates that it was framed with s.22(a)(ii) in mind. The document was intended to be a consent under that sub-paragraph. That sub-paragraph refers to "detained or tried". The word "prosecute" is apt to include not only the formal trial process but also the normal incidents of trial, including the detention of the accused in accordance with the law of the place of trial. In the context of a consent under s.22(a)(ii) it should be so read.

2. Secondly, the applicant argues that the consent can have no retrospective operation. It may authorize the presentation in the future of an indictment against the applicant, it is said, but it cannot retrospectively authorize the order made on 24 August 1984 by Mr Evans for his detention. Technically, I think that this is correct but it would be an erroneous exercise of the Court's discretion for it to grant relief under the Administrative Decisions (Judicial Review) Act upon that ground. Consent to detention having now been given a valid order for detention could immediately be made; possibly by the committing magistrate, certainly by the Supreme Court of New South Wales upon the presentation of an indictment specifying the three counts nominated by Mr Evans. If, therefore, I had come to a different conclusion in respect of compliance with s.22(a)(i) of the Act, I would have taken the view that the document of consent furnishes a complete answer to the claim for relief on the applicant's principal point.

3. The other matter relied upon by the applicant, in relation only to the first crime, was a suggested insufficiency of evidence to support the magistrate's finding in relation to the first count. Counsel for the respondents put the submission that the Court should, as an exercise of its discretion, decline to investigate that matter. Counsel for the applicant accepted that there is now a strong body of authority for the proposition that this Court should exercise its power to order a review of committal proceedings only in the most exceptional circumstances but he argued that there were here exceptional circumstances in that the applicant had been involuntarily returned to Australia and was being held in custody. I indicated to counsel that I rejected the submission that these constitute exceptional circumstances and, for that reason, the argument as to insufficiency of evidence was not developed. Not unusually accused persons are held in custody pending trial. Involuntary detention represents a significant impact upon the rights and liberties of a person not yet convicted of the offence in respect of which he or she is held. The person may never, in the result, be convicted of the offence. I cannot see that it makes any difference whether the person has been extradited from another country to Australia for the purpose of being charged with the relevant offence, whether he was a foreign national voluntarily here when he was arrested or whether he was an Australian citizen resident here. The effect, the deprivation of liberty during the relevant period, is the same.

4. The principle in relation to the proper exercise of discretion applies both in relation to review of the conduct of incompleted proceedings - Sankey v Whitlam (1978) 142 CLR 1 at p 26, Lamb v Moss (1983) 49 ALR 533 at p 564, The Queen v Iorlano (1983) 58 ALJR 22, Choo Cheng Kui v Quinn (Full Court, 25 September 1984, not yet reported) - and in relation to review of the ultimate decision of the magistrate to commit - Clyne v Director of Public Prosecutions (1984) 58 ALJR 493 at pp 494, 502, Seymour v Attorney-General (Full Court, 7 November 1984, not yet reported). The reasons for that principle were articulated by Jenkinson J in Seymour at p 7 of his judgement:
   
   

"Against the interest of the appellant in the result of the committal proceeding and in the conduct of that proceeding according to law must be weighed the public interest in the expeditious resolution of accusations of crime. The longer such an accusation remains unresolved the greater the risk of serious harm to the community. Those risks are multifarious: the fading of witness's recollections, the diminution of public confidence in the administration of the criminal law, the prolonging of fears and hatreds which the resolution of criminal charges tends to allay, and uncertainty as to the course which the life of the accused is to take, and not infrequently uncertainty as to the courses of other lives, are perhaps the more obvious and the most common. Those considerations of public interest are of great weight . . ."

1. There may be cases where the considerations referred to by Jenkinson J are outweighed by the desirability of a prompt and authoritative decision upon a question of law underlying the prosecution case, as, for example, the validity of the Banking (Foreign Exchange) Regulations considered in Clyne, but that qualification has no application to a case where the Court is being invited, in the exercise of its power of review under the Administrative Decisions (Judicial Review) Act, to examine the detail of the evidence already considered by the magistrate in determining the existence of a case sufficient to warrant a decision to commit for trial and which may be examined afresh by the trial judge in connection with any submission that there is no case proper to go to the jury.

2. When I announced my conclusion on 18 December 1984 junior counsel for the applicant submitted that no order should be made against his client in respect of the costs of the respondents. The reason advanced by him was that the Applications related to criminal proceedings, in respect of which it is the general rule that costs are not awarded. However, the proceedings in this Court are civil proceedings, proceedings which stand outside the normal framework of legal action in the prosecution of crime and which parties litigate at their risk as to costs. I see no reason to depart from the usual rule that the unsuccessful party, in such a case, should pay the costs of the successful party. This general rule has been applied in the previous decisions of this Court involving the application of the Administrative Decisions (Judicial Review) Act to criminal proceedings.

3. Both Applications should be dismissed with costs.