FEDERAL COURT OF AUSTRALIA

Griffiths v United States of America [2005] FCAFC 34

EXTRADITION – appeal against determination that appellant eligible for surrender under s 21 Extradition Act 1988 (Cth) for conspiracy and copyright infringement offences

EXTRADITION – whether supporting document requirements of s 19(3) complied with – whether agreement constituting offence of conspiracy reasonably identifiable – nature and proof of conspiracy – whether offence of direct copyright infringement identified – whether necessary to identify evidence establishing Australian copyright and infringement

EXTRADITION – whether double criminality requirement of s 19(2) satisfied – copyright infringement in the United States – whether necessary to show works would attract copyright protection in Australia – nature of and proper approach to double criminality requirement – appellant physically located in Australia – whether appellant’s conduct should be transposed to United States – character of conduct constituting the offence – whether possible to infer that prejudice element in s 132(2)(b) of Copyright Act 1968 (Cth) made out

Extradition Act 1988 (Cth) ss 10, 19, 21

Extradition (United States of America) Regulations reg 3

Criminal Code (Cth) s 11.2, s 11.5

Copyright Act 1968 (Cth) s 132(2)(b)

United States Code, title 17, s 506(a); title 18, s 2(a), s 371, s 2319(b)

McDade v United Kingdom [1999] FCA 1868 cited

Dutton v O’Shane (2003) 132 FCR 352 cited

R v Meaton (1986) 160 CLR 359 cited

R v Anderson (1981) 36 ACTR 30 cited

De Bruyn v South Africa (1999) 96 FCR 290 cited

Truong v The Queen (2004) 205 ALR 72 cited

Linhart v Elms (1988) 81 ALR 557 cited

Zoeller v Federal Republic of Germany (1989) 23 FCR 282 cited

Ahern v The Queen (1988) 165 CLR 87 cited

Tripodi v The Queen (1961) 104 CLR 1 cited

Gerakiteys v The Queen (1984) 153 CLR 317 cited

Computer Edge Pty Ltd v Apple Computer Inc (1986) 161 CLR 171 cited

Riley v The Commonwealth (1985) 159 CLR 1 cited

Director of Public Prosecutions v Doot [1973] AC 807 cited

Todhunter v United States of America (1995) 57 FCR 70 cited

Lipohar v The Queen (1999) 200 CLR 485 cited

Holloway v McFeeters (1956) 94 CLR 470 cited

HEW RAYMOND GRIFFITHS v UNITED STATES OF AMERICA & MAGISTRATE DANIEL REISS

No N 1134 of 2004

WHITLAM, FINN & CONTI JJ

SYDNEY

10 MARCH 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1134 OF 2004

BETWEEN:	HEW RAYMOND GRIFFITHS APPELLANT
AND:	UNITED STATES OF AMERICA FIRST RESPONDENT MAGISTRATE DANIEL REISS SECOND RESPONDENT
JUDGE:	WHITLAM, FINN & CONTI JJ
DATE OF ORDER:	10 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed with costs.

AND DETERMINES THAT:

2. The appellant is eligible for surrender, within the meaning of s 19(2) of the Extradition Act 1988, in relation to the extradition offences charged against him in Count One and Count Two of the indictment filed on 12 March 2003 in the Alexandria Division of the United States District Court for the Eastern District of Virginia.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1134 OF 2004

BETWEEN:

HEW RAYMOND GRIFFITHS

APPELLANT

AND:

UNITED STATES OF AMERICA

FIRST RESPONDENT

MAGISTRATE DANIEL REISS

SECOND RESPONDENT

JUDGE:	WHITLAM, FINN & CONTI JJ
DATE:	10 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT

1 If there is apparent novelty in this appeal it lies in the nature of the extradition offences the appellant is alleged to have committed and for which his surrender is sought by the United States of America when, at all relevant times, he was residing in Australia.

2 Hew Griffiths is claimed to have conspired to engage in, and to have in fact engaged in, Internet software piracy in the United States in violation of federal criminal copyright laws of that country. He has been indicted by a Grand Jury sitting in the Eastern District of Virginia on two related counts and his extradition has been sought under the Extradition Act 1988 (Cth) (‘the Act’), the United States being an ‘extradition country’ for its purposes: see Extradition (United States of America) Regulations, reg 3.

3 In review proceedings under s 21 of the Act a judge of this Court, Jacobson J, has found Mr Griffiths to be eligible for surrender to the United States and has made particular orders in that regard to which it will be necessary later to refer. It is from those orders that this appeal is made. Put shortly, the eight grounds of appeal, focus on two issues, both of which arise out of the provisions of s 19 of the Act. The first relates to the adequacy of the ‘supporting documents’ as defined in s 19(3) which are required to be produced under s 19(2) of the Act; the second, to whether the dual criminality requirement of s 19(2)(c) could be, and has been, satisfied in the circumstances.

4 To appreciate the nature of the challenges made, it is necessary to refer to the scheme of the Act in a little detail.

The Legislative Scheme

5 Extradition under the Act involves a four-stage process, the third stage of which involves the determination by a magistrate under s 19 of the Act (or by a judge on review under s 21) of eligibility for surrender (‘the eligibility determination’).

6 Section 19(2)(a) of the Act provides that a person is only eligible for surrender in relation to an extradition offence for which surrender of that person is sought if the ‘supporting documents’ in relation to the offence have been produced to the magistrate. For presently relevant purposes, ‘supporting documents’ are defined in s 19(3)(c) to mean:

‘in any case:

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

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

7 One of the prescribed criteria for determining whether a person is eligible for surrender is the ‘double criminality’ requirement of s 19(2)(c) of the Act. That subparagraph requires:

‘the magistrate [to be] satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia.’

8 By way of elaboration, s 10(2) and (3) provide (insofar as presently relevant):

‘(2) A reference in this Act to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed.

(3) In determining for the purposes of … paragraph 19(2)(c) whether, if conduct constituting an extradition offence in relation to an extradition country, or equivalent conduct, had taken place in Australia or in a part of Australia at a particular time, that conduct or equivalent conduct would have constituted an offence of a particular kind in relation to Australia or the part of Australia, the following provisions have effect:

(a) where the conduct or equivalent conduct consists of 2 or more acts or omissions – regard may be had to all or to only one or some of those acts or omissions.’

9 It is important to emphasise that in the eligibility determination proceedings, the person whose surrender is sought is not entitled to adduce evidence to contradict an allegation that he or she has engaged in conduct constituting the extradition offence (or offences) in question: s 19(5).

10 In the present matter a magistrate sitting in New South Wales determined pursuant to s 19(10) of the Act that Mr Griffiths was not eligible for surrender. The United States sought review of that decision by a judge of this Court under s 21. The three matters relating to s 21 reviews that require note are, first, that the reviewing court (and for that matter this Court on an appeal from that court) can only have regard to the material that was before the magistrate: s 21(6)(d); secondly, that the reviewing court is empowered to confirm or quash the magistrate’s order and, if it does the latter, it can direct the magistrate to make the appropriate orders under s 19(9) or (10) to give effect to the court’s decision: s 21(2); and, thirdly, that, as required by s 21(6)(g):

‘if the court to which the application or appeal is made determines that the person is eligible for surrender, within the meaning of subsection 19(2), in relation to an extradition offence or extradition offences – the court shall include in its judgment on the review or appeal a statement to that effect specifying the offence or offences.’

11 We refer to the last of the above because of the particular nature of the statement made by Jacobson J in respect of one of the extradition offences relied upon by the United States.

The Supporting Documents

12 We should preface our description of these documents with the observation that the s 19(3)(c)(ii) ‘statement in writing setting out the conduct constituting the offence’ may in fact consist of a number of documents: McDade v United Kingdom [1999] FCA 1868 at [30]; Dutton v O’Shane (2003) 132 FCR 352 at [105]. It does so in this case.

13 The following account of the nature and character of the supporting documents before the magistrate is drawn largely from the reasons of Jacobson J.

14 The principal document was an affidavit of Robert W Wiechering, an Assistant United States Attorney for the Eastern District of Virginia. That affidavit, to précis his own description, outlined variously Mr Wiechering’s qualifications and legal experience; the investigations that led to the charging of Mr Griffiths; the indictment returned by the Grand Jury; the offences, their elements and the evidence satisfying them. The affidavit also exhibited, inter alia, the affidavit of Dawn A Gabel, a Special Agent of the United States Bureau of Immigration and Customs Enforcement who was the case agent in the investigation of Mr Griffiths; the indictment; and the statements of four of Mr Griffiths’s alleged co-conspirators who have admitted, and been convicted for, their participation in the alleged conspiracy.

15 The foundational document in the above is the indictment returned by the Grand Jury. It contains two counts. Count One embodies the charge of conspiracy to commit an offence relating to copyright infringement. For illustrative purposes, the first two paragraphs of the indictment are reproduced verbatim below. The remaining ‘particulars’ of Count One will then be described briefly.

‘1. Beginning no later than January 1999, and continuing until on or about December 11, 2001, in the Eastern District of Virginia and elsewhere, the defendant, Hew Raymond Griffiths, also known by his screen nickname “bandido”, conspired and agreed to wilfully infringe copyrights with others known and unknown to the grand jury, including but not limited to John Sankus (a.k.a. “eriFlleh”), Christopher Tresco (a.k.a. “BigRar”), David Grimes (a.k.a. “Chevelle”), Richard Berry (a.k.a. “Flood”), Roy Kartadinata (a.k.a. “Tenkuken”), and an individual known by the screen nickname “EvilTea”; that is, during a 180-day period, defendant did conspire and agree to reproduce and distribute at least ten infringing copies of one or more copyrighted works, with a total retail value of more than $2,500, for purposes of private financial gain, in violation of 17 U.S.C. § 506(a)(1), and 18 U.S.C. § 2319(b)(1).

2. It was part of the conspiracy that the defendant and others, including the five co‑conspirators identified by name in Paragraph 1 above, were members of an Internet software piracy group known as Drink Or Die (DOD). DOD was a highly structured criminal organization devoted to the unauthorized reproduction and distribution of copyrighted software over the Internet. The group sought to achieve a reputation as the fastest provider of the highest quality application and utility software (e.g., Symantec security software, Microsoft and AutoDesk applications) to the underground Internet software piracy community known as the “warez scene”.’

16 Paragraph 3 of Count One provides particulars of how the conspiracy was carried out and of Mr Griffiths’s involvement in it. The various stages in the theft and distribution of the copyright materials are described. These consist of a series of acts by DOD members commencing with the work of ‘suppliers’ who are said to upload new software on to DOD’s ‘drop site’ prior to the manufacturer’s public release date. The drop site is described as a secure computer site hosted by a DOD member on the computer network of the Massachusetts Institute of Technology in Boston, access to which is said to have been strictly controlled by Mr Griffiths and other high level DOD members through security measures including password protection. Other DOD members known as ‘crackers’ would remove the software from the drop site and use their skills to ‘crack’ the software’s embedded copyright protection. The software would then be quality tested by ‘testers’ then broken apart by ‘packers’ before being prepared by ‘couriers’ for release and distribution to DOD affiliated computer storage sites throughout the world.

17 Paragraph 4 of Count One states that it was part of the conspiracy that when newly ‘cracked’ or pirated software was released, a DOD leader, usually Mr Griffiths, would send an email to other DOD staff members announcing the release. Additionally, monthly summary reports were maintained by DOD setting out details of the releases of the pirated materials. The emails and reports from November 2000 to 11 December 2001 are said to indicate that DOD cracked and released more than 275 software programs worth more than $US1,000,000.

18 Paragraph 5 of Count One states ‘[i]t was further part of the conspiracy’ that DOD was a highly structured organisation consisting of approximately 60 persons, the leaders of which had ultimate authority over all aspects of DOD’s work. Mr Griffiths is said to have been a long time DOD member and to have become a co-leader of DOD from early 2001.

19 Paragraph 6 states that ‘[i]t was a further part of the conspiracy’ that DOD staff members would communicate about the group’s illegal activities with other DOD members through secure Internet chat sites. Mr Griffiths’s role in facilitating communication between DOD members is described.

20 Paragraph 7 states that ‘[i]t was a further part of the conspiracy’ that to reward its members DOD maintained a number of sites known as ‘leech sites’ from which DOD members could download the many thousands of pirated software, games, movies and music that were available to DOD members. Access to those sites is said to have been controlled by DOD’s leadership including Mr Griffiths. The name and host of a number of the sites are referred to explicitly.

21 Paragraph 8 states that it was a part of the conspiracy that DOD’s file transfer sites were protected by security mechanisms to ensure that only authorised users could gain access. As leader, Mr Griffiths is said to have overseen the maintenance and operation of the sites.

22 Paragraph 9 refers, by way of further particulars of the conspiracy, to a telephone conversation held on 9 September 2001 between Mr Griffiths and other DOD members. Mr Griffiths is said to have led the discussion on numerous aspects of DOD’s copyright piracy activities.

23 The indictment then sets out five overt acts of the alleged conspiracy. Importantly, all of the overt acts are said to have been committed in Virginia. It is unnecessary at this stage to set out any of the overt acts. Each specifies a particular act or acts done in furtherance of the objects of the conspiracy and in which Mr Griffiths is said to have participated.

24 Count Two of the indictment charges Mr Griffiths with copyright infringement in contravention of two provisions of United States law. Though the statement of the charge does not refer specifically to Mr Griffiths aiding and abetting in such infringement, it is evident from the provisions of United States law which are referred to in the indictment that it encompassed aiding and abetting.

25 Count Two is as follows:

‘THE GRAND JURY FURTHER CHARGES THAT:

Between December 1, 2000, and December 11, 2001, in the Eastern District of Virginia and elsewhere, the defendant, HEW RAYMOND GRIFFITHS, also known as “bandido”, did wilfully, and for the purpose of private financial gain, infringe the copyrights of copyrighted works, to wit, copyrighted software, computer games and movies, by the reproduction and distribution over the Internet, during a 180-day period, of ten (10) or more copies of one or more of the copyrighted works having a total retail value of $2,500 or more.

(All in violation of Title 17 U.S.C. §506(a)(1) and 18 U.S.C. §2319(b)(1) and 2.)’

26 Mr Wiechering’s affidavit described the investigation into Mr Griffiths and the evidence it produced in terms reflecting both the indictment and Ms Gabel’s affidavit. He outlined the place and function of Grand Juries in United States criminal procedure and the indictment returned in relation to Mr Griffiths.

27 He noted that the statutes referred to in the indictment were in force at the time when the offences are alleged to have taken place and he exhibited the relevant portions of the statutes. Insofar as presently relevant, their effect may be briefly described.

28 (i) The offence of conspiracy to commit an offence is found in s 371 of title 18 of the United States Code (‘USC’). Section 371 provides that, if two or more persons conspire to commit an offence that is not a misdemeanour and one or more of such persons does an act to effect the object of the conspiracy, each shall be liable to a fine and/or imprisonment of up to five years.

29 (ii) Copyright is dealt with in title 17 of the USC. Section 506(a) of that title creates two offences as follows:

‘(a) Criminal infringement. – Any person who infringes a copyright willfully either –

(1) for purposes of commercial advantage or private financial gain, or

(2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phone records of 1 or more copyrighted works, which have a total retail value of more than $1,000,

shall be punished as provided under section 2319 of title 18, United States Code …’

30 (iii) Section 2319(b)(1) of title 18 provides a penalty of imprisonment for up to 5 years where an offence under s 506(a)(1) of title 17 consists of reproduction or distribution during any 180-day period of at least ten infringing copies having a total retail value of more than $2,500. It appears that the additional matters relevant to the maximum sentence are charged in the indictment, as they would be in Australia – see R v Meaton (1986) 160 CLR 359 at 363.

31 (iv) General provisions relating to federal crimes are set out in chapter 1 of part 1 of title 18 of the USC. Section 2(a) in that chapter provides:

‘Whoever commits an offence against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.’

The citation of s 2 in Count Two of the indictment is apparently sufficient to charge an aider and abettor as a principal. (In Australia such a person may also be charged as a principal – see R v Anderson (1981) 36 ACTR 30. However, it is more usual here that an accessory is charged as such.)

32 The affidavit then explains the offence of conspiracy under United States law. It is stated that the crime is committed when two or more people agree to do something that is unlawful. It is not necessary for the conspirators to have made a formal agreement or to have agreed on every detail. One becomes a member of an unlawful conspiracy by wilfully participating in an unlawful plan with intent to advance an object or purpose of the conspiracy. The four elements of the charge of conspiracy which must be established against Mr Griffiths are set out in the affidavit as follows:

‘First, That two or more persons, in some way or manner, came to a mutual understanding to try and accomplish a common and unlawful plan, as charged in the indictment;

Second, That Griffiths, knowing the unlawful purpose of the plan, willfully joined in it;

Third, That one of the conspirators during the existence of the conspiracy knowingly committed at least one of the overt acts described in the indictment; and

Fourth, That such “overt act” was knowingly committed at or about the time alleged in an effort to carry out or accomplish some object of the conspiracy.’

33 Mr Wiechering states that the gravamen of the charge contained in the first count of the indictment is that Mr Griffiths knowingly and wilfully participated in a conspiracy that planned to unlawfully reproduce and distribute copyright works.

34 The affidavit then provides details of the evidence to satisfy these four elements. Particular reliance here is placed on the exhibited statements of Mr Griffiths’s alleged co-conspirators, all five of whom have been convicted and have implicated him as the leader of that conspiracy. We would also note that Ms Gabel’s affidavit contains a body of evidence by way of admission from materials belonging to Mr Griffiths seized in Australia by the Australian Federal Police that bears on the first and second elements. That evidence, Mr Wiechering states, demonstrates that Mr Griffiths not only knew the purpose of the conspiracy and knowingly joined it, but also that he was a leading member of DOD.

35 It is unnecessary to set out the material relied upon here to make out the third and fourth elements other than to note that five overt acts are described in the indictment.

36 The elements of the copyright infringement count are set out in Mr Wiechering’s affidavit as follows:

‘First, That a copyright existed for the work,

Second, That the defendant infringed the copyright by reproducing or distributing copies of the copyrighted work;

Third, That the defendant, in infringing the copyright, acted willfully; and

Fourth, That the defendant reproduced or distributed during a 180-day period at least ten (10) copies of one or more works which have a total retail value of US$2,500 or more.’

37 As with the conspiracy count, Mr Wiechering refers to evidence which satisfies each element of the charge primarily by way of aiding and abetting another to infringe. He does not set out all of the evidence but gives the effect of the evidence and an example of how Mr Griffiths is said to have exercised his authority to grant a DOD member access to pirated copyright works. The person to whom access was granted had the screen name ‘ParisAngel’. Of the 1899 titles downloaded or uploaded by ParisAngel, far more than 10 works are said to be copyrighted. ‘ParisAngel’ is said to be but one of many examples uncovered during the investigation.

38 Mr Wiechering states at paragraph 40 of his affidavit that the second element of the infringement count is satisfied. He says:

‘With regard to the second element of Count Two, an infringement of a copyright occurs whenever someone who is not the copyright owner and who has no authorization from the owner does an act that is the exclusive right of the copyright owner. Among the exclusive rights given to the copyright owner is the right to reproduce and the right to distribute the copyrighted work. Because neither ParisAngel nor Griffiths had authorization from the copyright holders to reproduce and distribute their copyrighted works, the second element is established.’

39 The affidavit goes on to say that the third and fourth elements of the offence are satisfied. It is unnecessary to set out the details of how those elements are said to be established.

40 Ms Gabel’s affidavit provides further details of Mr Griffiths’s conduct. She states that Mr Griffiths joined DOD as a courier and that he became a council member in about the summer of 1998. His responsibilities and activities are set out in some detail. She also provides details of the topics discussed in the telephone conversation held on 9 September 2001, and referred to in paragraph 9 of Count One of the indictment. She also sets out the remarks attributed to Mr Griffiths in the conversation.

41 Exhibited to her affidavit is a list of all software releases pirated and distributed by DOD from November 2000 to 11 December 2001. The list specifies the pirated applications, the manufacturer of each such application and the DOD emails from which the information as to the piracy and distribution were obtained.

The AUSTRALIAN Offences

42 For the purposes of s 19(2) of the Act the conduct constituting the extradition offences in the United States, or equivalent conduct, must be such as would have constituted an extradition offence or offences in the part of Australia where the s 19 proceedings are being conducted (‘the counterpart offences’).

43 The counterpart offences relied upon in the present s 19 proceeding are offences against Commonwealth laws. They are conspiracy under s 11.5 of the Criminal Code and copyright infringement under s 132(2) of the Copyright Act 1968. The latter offence is said to arise out of the operation of the complicity and common purpose provisions in s 11.2 of the Criminal Code.

44 Conspiracy is defined in s 11.5 of the Criminal Code insofar as is presently relevant in the following terms:

‘(1) A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.

(2) For the person to be guilty:

(a) the person must have entered into an agreement with one or more other persons; and

(b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and

45 The copyright offence of s 132(2) of the Copyright Act is that:

‘A person shall not, at a time when copyright subsists in a work, distribute:

…

(b) … to an extent that affects prejudicially the owner of the copyright;

an article that the person knows, or ought reasonably to know, to be an infringing copy of the work.’

Section 132(6) imposes a territorial limitation on this offence by providing that s 132 only applies in respect of acts done in Australia.

46 Section 11.2 of the Criminal Code relevantly provides:

‘(1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.

(2) For the person to be guilty:

(a) the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and

(b) the offence must have been committed by the other person.

(3) For the person to be guilty, the person must have intended that:

(a) his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or

(b) his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.’

THE PRIMARY JUDGE’S DECISION

47 As the grounds of appeal reagitate in considerable degree the matters raised before Jacobson J, it is sufficient here simply to note his Honour’s conclusions which were that:

(i) there was a sufficient statement in writing setting out the conduct constituting the offences of conspiracy to infringe copyright as set forth in Count One of the indictment, copyright infringement in Count Two, and aiding and abetting the infringement of copyright by ParisAngel but only by ParisAngel; and

(ii) the double criminality requirement of s 19(2) was made out, given that the conduct constituting the extradition offences would have constituted the counterpart offences noted above.

The grounds of APPEAL

48 As prosecuted seven grounds were dealt with in submission. These will be considered in three groupings, i.e. Grounds 1, 5 and 7, Grounds 2-4 and Ground 6. It will be necessary to set out the terms of some of the grounds at length.

Ground 1

‘His Honour erred in concluding that the materials placed before the Magistrate by the first respondent (‘the US Materials’):

(a) constituted a sufficient statement of the conduct constituting the offences of the appellant for the purposes of s 19(3)(c)(ii) of the Extradition Act; and

(b) alleged conduct which would have constituted an offence under Australian law for the purposes of s 19(2)(c) of the Extradition Act,

in circumstances where the supporting documents alleged infringement of copyright under United States law but failed to set out matters necessary to conclude whether the alleged conduct would constitute an infringement of copyright under Australian law. His Honour further erred in characterising those missing matters as “evidence” (Judgment, para 138).’

Ground 5

‘His Honour erred in concluding that the US Materials stated conduct which would constitute a conspiracy under Australian law. In particular:

(a) his Honour erred in concluding that the US Materials identified a conspiracy with six persons (Judgment, para 134), in circumstances where the US Materials alleged a conspiracy said to arise in some unspecified way from membership in DOD, without identifying the agreement said to constitute the conspiracy or the co-conspirators; and

(b) his Honour further erred in characterising the particulars of the conspiracy as particulars which alleged that the appellant “agreed to join, and later lead, DOD, an unlawful organisation which had agreed to steal, pirate and distribute copyright works” (Judgment, para 132), in circumstances where neither of these two agreements had been identified in the US Materials.’

Ground 7

‘His Honour erred in concluding that the US Materials described conduct which would constitute a principal offence of distribution of copyright under Australian law, as opposed to an aiding and abetting or a conspiracy. In particular, his Honour erred in concluding that the US Materials, in describing distributions by DOD, described acts of distribution by the appellant himself (Judgment, para 136).’

49 It is appropriate to preface consideration of these grounds by referring to a number of well-accepted propositions concerning what is required of, and what is the purpose of, a statement of conduct both for s 19(3)(c)(ii) and s 19(2)(c) purposes.

50 (i) As already noted, it is well accepted that the statement ‘setting out the conduct constituting the offence’ for s 19(3)(c)(ii) purposes may consist of a number of documents: Dutton v O’Shane at [105]. For this reason it is permissible to have resort to all of the ‘supporting documents’ to ascertain what that conduct is.

51 (ii) Section 19(3)(c)(ii) requires a statement of the ‘acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed’: s 10(2). A bare description or definition of the offence will not suffice: De Bruyn v South Africa (1999) 96 FCR 290 at [8] ff; McDade v United Kingdom, at [16]. As was said by Gleeson CJ and McHugh and Heydon JJ in the s 42 (‘speciality’) case of Truong v The Queen (2004) 205 ALR 72 at [29]:

‘The acts or omissions, that is, the conduct, by virtue of which an offence has been, or is alleged to have been, committed, lie at a level of abstraction between a formal statement of the elements of the offence, on the one hand, and an account of the evidence relied on to prove the relevant conduct, on the other.’

52 (iii) The statement must speak with sufficient specificity, clarity and coherence to serve its purpose: cf Linhart v Elms (1988) 81 ALR 557 at 583. Hence, as Kenny J said in McDade at [17]:

‘Having regard to the purposes of a s 19(3)(c)(ii) statement, a document will not meet the requirements of that provision if it is so vague and general or so disorganised that the relevant acts and omissions cannot be reasonably identified. Whether a statement relied on in satisfaction of that provision is to be accepted as a statement setting out the conduct constituting the relevant extradition offence or offences is essentially a “matter of practical judgment and assessment, not for over-zealousness in discerning deficiencies”: Zoeller at 294 and Wiest [23 FCR] at 519.’

53 (iv) The s 19(3)(c)(ii) statement serves a dual purpose. First, the facts relevant to the extradition offence are proved by that statement. Secondly, because the magistrate making the eligibility determination is confined to the material adduced in the supporting document, the statement must be such as to permit the magistrate to be satisfied that the conduct said to constitute the offence would constitute an extradition offence had it taken place in that part of Australia where the proceedings are being conducted: Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 299-300; De Bruyn v South Africa at [7].

54 (v) It is not the magistrate’s function under s 19 to determine what are the minimum facts necessary to constitute the foreign offence. As was said in Zoeller at 300:

‘That there has been a foreign crime committed is for the purpose of the proceedings before the magistrate proved by the warrant duly authenticated. What the facts relevant to that crime are is proved by the duly authenticated statement under s 19(3)(c)(ii). That the offence is an extraditable offence is proved by the s 19(3)(c)(i) document. All the magistrate is required to do is, by reference to Australian law, to determine whether the conduct referred to in the s 19(3)(c)(ii) statement is an offence under the law of a State or Territory of Australia or Commonwealth law.’

55 (vi) A consequence of the dual purpose of the s 19(3)(c)(ii) statement is that the level of information and detail the requesting country provides about the conduct constituting the extradition offence may be sufficient to satisfy s 19(3)(c) but be inadequate for s 19(2) purposes.

56 In the three grounds reproduced at [48] above the appellant challenges the adequacy of the supporting documents for the purposes of either or both s 19(3)(c)(ii) and s 19(2)(c). The central question in relation to the principal ground (Ground 1) is said to be whether it is sufficient for supporting documents to assert that Mr Griffiths has conspired to reproduce and distribute or has distributed infringing copies of works which were copyright, without identifying any of the facts upon which that conclusion is based.

57 Additionally (Grounds 5 and 7), it is said that the supporting documents are inadequate because (a) while referring to distribution of infringing copies, they do not identify the nature of the distribution carried out by Mr Griffiths; and (b) they allege a conspiracy without identifying (i) the agreement said to constitute it or (ii) the co-conspirators. Neither of these grounds is concerned directly with the complaint that the supporting documents do not provide facts establishing that the pirated material is copyright material. It is convenient to deal with them before addressing the copyright complaint.

Ground 5: Identifying the conspiracy and the co-conspirators

58 The primary judge considered that paragraphs 2 to 9 in Count One of the indictment set out a reasonably clear and coherent statement of the conduct constituting the offence of conspiracy charged in paragraph 1. His Honour considered the necessary elements of the offence were explained by Mr Wiechering, and that the overt acts were stated in reasonably clear and coherent terms. He rejected the submission by Mr Griffiths that the statements in the indictment were generalised or ‘conclusory’ and expressed the view (at [132]) that:

‘… it is quite plain from the particulars that Mr Griffiths is said to have agreed to join, and later lead, DOD, an unlawful organisation which had agreed to steal, pirate and distribute copyright works. This is also to be inferred from the overt acts stated.’

The conspiracy charged was, in his Honour’s view, one with the six persons referred to in paragraph 1 of Count One.

59 The appellant contests both of these conclusions: the former on the basis that the alleged agreements of Mr Griffiths and DOD were not identified in the supporting documents; the latter on the basis that the agreement said to constitute the conspiracy with the co-conspirators was not identified.

60 Before referring to what does emerge from the supporting documents, we would make the following observations. First, as is well recognised, the agreement constituting a conspiracy is often incapable of being proved by direct evidence: Ahern v The Queen (1988) 165 CLR 87 at 93. They are ‘commonly proved by overt acts; and the overt acts often include the substantive crimes which are the object of the conspiracy’: Truong at [13]. Secondly, proof of the offence of conspiracy may consist in evidence of the separate acts of the alleged co-conspirators ‘which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment’: Tripodi v The Queen (1961) 104 CLR 1 at 6; Ahern v The Queen at 93-95. We note that four of the convicted co-conspirators have given statements evidencing the fact of a combination with a common design of engaging in Internet software piracy.

61 While there is no single sequential description of the ‘elements or ingredients’ of the conspiracy offence in the supporting documents, these emerge readily enough from paragraphs 2 to 9 of Count One of the indictment and from the affidavits of Mr Wiechering and Ms Gabel. Put shortly, it was a conspiracy constituted (a) by a continuing agreement effected in the Eastern District of Virginia and elsewhere between Mr Griffiths and at least the six persons identified in Count One, paragraph 1 of the indictment; (b) to utilise DOD’s secure computer site (‘drop site’) and the skills and services of DOD members to reproduce and to distribute (in the manner indicated in the indictment and in the two affidavits and exhibits); (c) copyright protected computer software, games, movies and music; (d) without authorisation; (e) for the benefit of DOD members and to enhance the DOD’s reputation; (f) with some at least of the known conspirators including Mr Griffiths using their position and authority in DOD to those ends as well (in Mr Griffiths’s case) as to reward and motivate DOD members. The fact of Mr Griffiths’s participation is evidenced in Ms Gabel’s affidavit.

62 While it is the case that the indictment could have been cast in terms having greater clarity, it is not so disorganised or opaque (when considered together with the other supporting documents) as to preclude reasonable identification of these elements or ingredients of the conspiracy offence. There is some justice in the appellant’s contention that paragraphs 2 to 9 of the indictment are concerned more with states of affairs and events than with agreements about those matters. Nonetheless, given that conspiracies are commonly proved by acts and events constituting the substantive offence, there is no misdescription of the matters in the above paragraphs as being ‘part of the conspiracy’.

63 It needs to be emphasised that the alleged conspiracy is not one in which all members of DOD are claimed to be co-conspirators. Whether or not it was the fact that there were other unknown co-conspirators who were DOD members or that there were other separate conspiracies involving the identified co-conspirators and other DOD members (cf Gerakiteys v The Queen (1984) 153 CLR 317 at 327) does not affect the character of the conspiracy alleged.

64 Accordingly, we agree with Jacobson J’s conclusion that there was a sufficient statement of the conduct constituting the conspiracy offence in the supporting documents and that it could be discerned from the paragraphs in Count One of the indictment when considered in light of Mr Wiechering’s explanation of the necessary elements of the offence. However, although we consider that the shorthand description his Honour gave of what Mr Griffiths agreed to do does not wholly capture the substance of what is contained in the indictment, we consider that there is other material in the supporting documents – and in particular the respective statements of facts of four of the alleged co-conspirators – that provides support for the conspiracy alleged.

65 We reject this ground of appeal.

Ground 7: Infringement of copyright

66 A notable feature of the continuing conspiracy as it is particularised in paragraphs 2 to 9 of Count One of the indictment is that it does not contemplate that Mr Griffith, or for that matter all or any of the other known conspirators, would personally do all of the acts which constituted the unauthorised reproduction or distribution of the copyright software that was processed through DOD’s ‘drop site’. In consequence, as Mr Wiechering indicated in his affidavit, for Mr Griffiths ‘to be found guilty of criminal copyright infringement as charged in Count Two … the Government must establish that his conduct or the conduct of a person he aided and abetted’ satisfied the elements of the infringement offence: emphasis added.

67 In his treatment of Mr Griffiths’s conduct, Mr Wiechering has focussed in the main on evidence of aiding and abetting which he exemplifies through Mr Griffiths’s conduct in relation to ‘ParisAngel’ alone. Mr Wiechering does say, though, that ‘Griffiths repeatedly aided and abetted others in criminal copyright infringement’. What should be emphasised in passing about the above is that, because of the particular manner in which Mr Wiechering identified conduct constituting the offence under the aiding and abetting rubric, Jacobson J in turn specified that Mr Griffiths’s infringement resulting from aiding and abetting be limited to aiding and abetting ParisAngel. The respondent has not contested this conclusion. Nonetheless, for reasons we later give, we consider the limitation to be unnecessary.

68 Ground 7 does not challenge the aiding and abetting conclusion. Its focus is on Jacobson J’s finding that Mr Griffiths personally infringed copyright as distinct from aiding and abetting another’s infringement. The burden of this ground is not altogether clear. The infringement offence charged is infringement as a principal. Under United States law, a person who aids and abets the commission of an offence is punishable as a principal: see 18 USC s 2(a).

69 As the respondent indicates in a footnote in its written submissions, Mr Wiechering’s affidavit refers explicitly to one instance of direct infringement by Mr Griffiths, and Ms Gabel’s to two others. These were:

(i) from footnote 11 to paragraph 40 of Mr Wiechering’s affidavit, that:

‘There is also sufficient evidence to prove direct infringement by Griffiths. For example, on December 1^st, 2000, logs indicate that between 02:25:59 and 03:15:23, Griffiths uploaded approximately 195 files to the Fatal Error server, comprising 14 specific copyrighted works. Between 10:55:47 and 14:39:08 that same day, Griffiths uploaded over 600 additional files to the server;’

(ii) from paragraph 10 of Ms Gabel’s affidavit, that Mr Griffiths uploaded 9 titles and downloaded 17 titles from the new ‘releases’ site known as ‘Ratzhole’ which was located in California; and

(iii) from paragraph 12 of Ms Gabel’s affidavit, that Mr Griffiths personally uploaded 32 pirated games to the ‘Fatal Error’ site which contained copies of copyrighted software, games, etc that were available to members as a reward for their services.

70 Jacobson J did not refer at least specifically to these instances. Rather his Honour relied on the conduct to which he referred as follows (at [136]):

‘However, Mr Wiechering’s affidavit describes in paragraphs 38 to 40 acts done by Mr Griffiths in reproducing and distributing copyright works without the authorisation of the copyright owner. Ms Gable’s [sic] list of the software releases “cracked & distributed” by DOD contains a statement of the copyright items which Mr Griffiths is said to have infringed as a principal. It is true that the acts are attributed by Ms Gable [sic] to DOD rather than Mr Griffiths but he is stated in the indictment to have been a council member and leader of DOD during this period.’

71 The use made of this material does not entirely reflect the implications of the evidence to the extent brought out in the course of argument on the appeal. The paragraphs referred to in Mr Wiechering’s affidavit deal with Mr Griffiths’s aiding and abetting of ‘ParisAngel’. The reference in Ms Gabel’s affidavit to ‘all the software releases that were cracked and distributed by DOD from November 2000 through December 11, 2001’ might reveal instances of infringements where Mr Griffiths aided and abetted as a council member and leader of DOD during the period, but we would prefer not to instance the same as evidence of direct infringement by him.

72 Nonetheless we are satisfied that the supporting documents do provide a statement of conduct of Mr Griffiths which of itself constituted the offence of copyright infringement.

Ground 1

73 The alleged insufficiency of the statement of conduct for s 19(2)(c)’s double criminality purposes is at the heart of this ground. The contention is that to assert that copyright exists in a work and has been infringed is to assert legal conclusions according to the law of a particular jurisdiction, which conclusions are derived from the application of legal rules to ascertained facts. Without those facts being identified – and they are not identified in the supporting documents – it is not possible, it is said, to undertake the dual criminality examination of s 19(2)(c). This is because the supporting documents are insufficient to indicate whether (a) the material which was reproduced or distributed in the United States would attract copyright protection in Australia or (b) the reproduction or distribution constituted an infringement in this country.

74 The response made by the United States is that the statement in the supporting documents that the material that was to be and was reproduced and distributed was copyright material is a sufficient statement of that fact for the purposes of the s 19(3)(c)(ii) statement. The focus of the statement is on the conduct of the fugitive. While proof of the fact of copyright will be required in any trial of the charges contained in the indictment, the mode of proof that will or may be used is not a matter of concern to the extradition process. For the purposes of ascertaining dual criminality under the Act it is irrelevant whether copyright in the works would notionally have existed in Australia.

75 However, the United States does rely upon the general factual setting in which the alleged offences occurred to provide a context both for the claims of copyright and for the allegations of infringement. That context is one in which, from material in the supporting documents, (i) manufacturers have produced new software for video games, films, music, etc.; (ii) copyright protections taking various forms were embedded in the software, these protections being designed to prevent unauthorised distribution of the software; (iii) days, weeks or months before the manufacturer’s public release, this software would without authorisation be uploaded by DOD members to a drop site; (iv) it would then be ‘cracked’, i.e. its embedded protections would be removed permitting free distribution of the software; and (v) the software would be distributed.

76 We would note by way of preface that the supporting documents do not provide any account of federal copyright law in the United States. Nonetheless, the documents provide indications, albeit sparse, of what is comprehended by copyright and copyright infringement. As in Australia, copyright can exist in computer software, video games, music and movies; a software manufacturer can be the copyright owner; and copyright infringement can happen when a copyright work is reproduced without the permission of the copyright owner. It may be the case that there are idiosyncratic differences between the copyright laws of the United States and Australia: cf Computer Edge Pty Ltd v Apple Computer Inc (1986) 161 CLR 171 at 187 where it was observed by Gibbs CJ in passing that ‘… the statute law [of copyright] is materially different from that of Australia’. Nonetheless, what is clear from the supporting documents is that there is a common field of discourse concerning copyright between the two countries. It has not been suggested that such is not the case and it would be surprising if it was. Though not a matter of evidence counsel for the United States, in drawing attention to s 184 of the Copyright Actand the Copyright (International Protection) Regulations 1969 (Cth), noted that the United States was a party to the Berne Convention and was a member of the World Trade Organisation.

77 Before dealing with the parties’ contentions, it is necessary to comment briefly on s 19(2)(c). For present purposes it is sufficient to reiterate observations made in the joint judgment of Finn and Dowsett JJ in Dutton v O’Shane at [58]:

‘The relevant inquiry mandated by s 19(2) of the Act is not whether there is a correspondence between the legal elements of offences under the municipal criminal laws of the requesting State and of the relevant part of Australia. It is whether the conduct constituting the offence in the requesting State constitutes (subject to a proviso noted below) an extradition offence in that part of Australia in which the proceeding is conducted. The relevant inquiry is conduct based, hence the significance of the statement of the conduct constituting the offence in s 19(3)(c)(ii). As the Full Court observed in Zoeller v Republic of Germany at 297:

“What is relevantly required [by s 19(3)(c)(ii) when read in light of s 10(2)] is a statement of what is alleged to have been actually done or omitted, not a mere restatement of the charge in respect of which extradition is sought.”’

78 The appellant’s challenge to the supporting documents has focussed primarily on Count Two of the indictment which is the substantive offence of copyright infringement, the challenge to Count One (the conspiracy to infringe) being derivative in character. We will consider the Count Two challenge first.

79 The appellant’s case is in substance that for the double criminality requirement to be satisfied – i.e. for it to be concluded that the conduct constituting the offence or equivalent conduct would have constituted an extradition offence if it had taken place in New South Wales – it must be shown that that conduct would have constituted an offence under s 132(2)(b) of the Copyright Act. For this to be demonstrated it has to be shown that, under Australian law, (i) copyright would have subsisted in the works in question: s 32 of the Copyright Act; (ii) the owners of the relevant works were identified: s 35; (iii) there was a reproduction without licence; and (iv) for the purposes of the s 132(2)(b) offence there was, additionally, a ‘distribution’ of an article that the person knows, or ought reasonably to know, to be an infringing copy of the work to an extent that prejudicially affects the owner of the copyright. Only the first three of these are of present significance, the fourth being dealt with separately in Ground 6 of the notice of appeal.

80 The reason it is said the above matters establishing notional Australian copyright and infringement must be made out factually in the supporting materials is because an assertion in the supporting documents that there has been an infringement of a copyright work (i.e. under United States law) is not determinative of any issue under the Australian Copyright Act. The relevant work may not be copyright in Australia. The copyright owner may be different in Australia. And the ‘infringement’ of copyright may not be an infringement under Australian law.

81 To illustrate the point it is said that if the supporting materials had asserted that Mr Griffiths had copied an identified computer program, and that computer program was not copyright under Australian law, then Mr Griffiths could not be extradited – he would not have committed an offence under Australian law. If, instead of identifying the work, the US materials had merely asserted that Mr Griffiths had copied a ‘copyright computer program’, then the mere lack of detail and absence of supporting facts could not transform what would otherwise be a non-extraditable act into an extraditable act.

82 This matter was raised before Jacobson J, his Honour rejecting it in the following manner. Having indicated that Count Two of the indictment and the affidavits of Mr Wiechering and Ms Gabel stated the conduct constituting the offence, Jacobson J observed at [138] (in response to the appellant’s submission):

‘All that is required in the statement of the conduct is the ingredients. The authorities to which I have referred make it plain that the evidence is not required. The effect of the submission is that chapter and verse of the evidence must be stated. That is contrary to all of the authorities on this question.’

83 We agree with his Honour’s conclusion, though we would not read the appellant’s contentions as postulating any such requirement as to ‘chapter and verse’. We consider that, in deference to counsel’s submission, we should give our own reasons for rejecting the submission.

84 When one has regard to the contextual material in the supporting materials – and we refer particularly to the nature of the software materials (newly manufactured, not released and with embedded safeguards) and to the modus operandi of DOD members in cracking and distributing entire works without permission – there is a certain artificiality in the contention which may well be able to be overcome by a proper process of inference in any event: cf Truong at [13]. Be this as it may, we consider that the ground of appeal tends to overstate the extent of the demands of the double criminality requirement.

85 The requirement of s 19(3)(c)(ii) is to provide a statement of the ‘conduct constituting the offence’. That conduct, as s 10(2) indicates, is a reference to the acts or omissions by virtue of which the offence has been, or is alleged to have been, committed. Whether or not the pirated material is a matter of copyright in either the United States or Australia is not of itself a matter of conduct. It is more in the nature of ‘a state of things rather than an act’; (Riley v The Commonwealth(1985) 159 CLR 1 at 8) which, as the United States acknowledges, it will be required to prove in any trial of the charges. The evidence of it was not required to be included in the supporting materials for the purposes of describing the conduct constituting the offence.

86 A magistrate dealing with the extradition request is entitled to rely upon the asserted fact that the various enumerated works were protected by United States copyright without having evidence of that fact. The double criminality requirement of s 19(2)(c), likewise does not require evidence of the fact that copyright in those works would notionally have been available in Australia if the conduct had occurred in New South Wales. The question for the magistrate was, simply, would it be an offence notionally in Australia to breach copyright substantively in the way that has been alleged in the supporting documents. This would have required that the magistrate be satisfied that the type of work pirated, i.e. software, was itself a type of work capable of attracting protection under the Australian Copyright Act. It clearly had that quality. Beyond this the magistrate’s concern was with the appellant’s conduct.

87 As counsel for the United States put it in submissions, what s 19 relevantly is about is the conduct of the fugitive. Given the allegation that the pirated works were of a description or nature which was subject to copyright, and if that conduct occurred in New South Wales would that conduct have constituted an offence? We consider this test correctly states the proper approach to s 19 for present purposes.

88 Insofar as this ground deals with alleged insufficiency of the supporting materials in relation to infringement that involves unauthorised reproduction and distribution, what we have said in relation to Ground 5 is sufficient to dispose of this matter - the more so when regard is had to the paragraphs of Count One which describe the manner in which the copyright software was dealt with by DOD members (which it is unnecessary to repeat here).

89 We reject the appellant’s contention as it relates to the substantive copyright offence. We similarly reject the like contention as it relates to the conspiracy count. The paragraphs of Count One actually describe how the copyright infringement was intended to be, and substantively was, effectuated.

Ground 2, 3 and 4

90 These all concern Jacobson J’s transposition of Mr Griffiths’s alleged conduct for the purpose of assessing dual criminality under s 19(2)(c). These grounds are as follows:

‘2. In relation to the conspiracy charge, his Honour erred in concluding that the exercise of practical judgment which the Magistrate was required to carry out was to consider whether if the appellant, while physically located in the United States, made an agreement to steal, reproduce and distribute Australian copyright works by obtaining access to a computer system situated in Australia, and carried out five overt acts of the conspiracy, either by himself or through co-conspirators in Australia, his conduct would necessarily involve the offence of conspiracy to infringe copyright in New South Wales (Judgment, para 150). In particular, his Honour erred in geographically transposing:

(a) the conduct of the co-conspirators;

(b) the location of a computer system; and

in circumstances where section 19(2)(c) of the Extradition Act only requires the transposition of the conduct of the appellant.

3. Further, his Honour erred in transposing the physical location of the appellant from Australia to the United States (Judgment, para 150) where nothing in section 19(2)(c) of the Extradition Act suggests that such a transposition should be undertaken.

4. His Honour erred in applying authorities such as Lipohar v R (2000) 200 CLR 485, concerning the justiciability of a conspiracy in a particular jurisdiction, to identify the physical location of the conduct of the appellant for the purposes of section 19(2)(c) of the Extradition Act (Judgment, paras 121, 124).’

91 Jacobson J said (at [150]):

‘The exercise of practical judgment which the Magistrate was required to carry out was to consider whether, if Mr Griffiths, while physically located in the United States, made an agreement, perhaps initially in the United States, to steal, reproduce and distribute Australian copyright works by obtaining access to a computer system situated in Australia, and by carrying out five overt acts of the conspiracy, either by himself or through co-conspirators in Australia, his conduct would necessarily involve the offence of conspiracy to infringe copyright in New South Wales. The answer to this is plainly that it would constitute such an offence.’

92 His Honour had previously indicated that Mr Griffiths’s own acts and those of his co-conspirators that were imputable to him, were committed in the United States and that this is what is stated in both counts in the indictment. Importantly, his Honour said (at [49]) all of the overt acts were said to have occurred in Virginia.

93 The essence of the appellant’s contention is that he was at all relevant times physically located in Australia. It is contended his conduct occurred in Australia and that the conspiracy was likely to have been entered into by him in Australia. In these circumstances his conduct should simply be assessed under s 19(2)(c) as it occurred, without transposition. It is further said that his Honour incorrectly invoked concepts of agency to attribute to Mr Griffiths the acts of his co-conspirators.

94 It is, in our view, clearly the case that the conspiracy alleged in this matter was a continuing offence: Director of Public Prosecutions v Doot [1973] AC 807 at 827; and that, to adapt the language of Gleeson CJ and McHugh and Heydon JJ in Truong at [37]:

‘The conduct by virtue of which this particular conspiracy, in this particular case, was alleged to have been committed included the continuing performance of the agreement up to and including the [copyright infringements].’

95 That conduct included not merely such acts as may have been performed by Mr Griffiths personally but the conduct constituting its performance by others: on the admissibility of evidence of the acts and declarations of others against an accused conspirator, see Ahern v The Queen, at 92-100; Todhunter v United States of America (1995) 57 FCR 70 at 94.

96 The conduct in performance so described in the indictment (but especially in the overt acts) as also in the affidavits occurred in the United States, and this was so in relation to actions of Mr Griffiths notwithstanding his physical presence in New South Wales. Simply by way of illustration of this, three of the overt acts relied upon in the indictment related to the installation and use of the DOD site, ‘Fatal Error’ in Dulles, Virginia. The fifth overt act, for example, states that:

‘5. During the eight months in which it was located in the Eastern District of Virginia, more than 9,000 individual titles of pirated software, games, and moves were uploaded to Fatal Error, and more than 18,000 copies of pirated software, games, and movies were downloaded from the site, by DOD members and others engaged in Internet software piracy. During that same time period, GRIFFITHS personally uploaded approximately 32 pirated games to the site.’

97 Whatever may have been the particular place of origin of the conspiracy insofar as it concerned Mr Griffiths, the conduct constituting the offence, given its continuing character, can properly be said to have occurred in the United States and this includes Mr Griffiths’s own conduct notwithstanding his actual physical presence in New South Wales.

98 We do not refer to this, for the purpose of inquiring impermissibly into whether the United States properly had jurisdiction to entertain the matter: cf Lipohar v The Queen (1999) 200 CLR 485. Rather it identifies the United States conduct that is to be considered for the double criminality purposes of s 19(2)(c). It is conduct, we would emphasise, that is devoid of any relevant extra-territorial element.

99 In our view, Jacobson J committed no error in making the factual transposition reproduced at [91] above, nor in reaching the conclusion he did in light of it.

100 We would reject all three grounds of appeal.

Ground 6

101 This ground is as follows:

‘6. His Honour erred in concluding, in relation to the offence of distribution of copyright works, that the elements of the offence are virtually identical in the United States and in new South Wales [sic] (Judgment, para 153). In particular, his Honour erred in concluding that the element under section 132(2)(b) of the Copyright Act 1968 that the distribution be to an extent that affects prejudicially the owner of the copyright “corresponds” to the requirement of the United States law that the act be for the purpose of commercial advantage or private financial gain in respect of an article with a total retail value of more than $1,000.00.’

102 The ground fairly paraphrases Jacobson J’s conclusion.

103 In their written submissions counsel for Mr Griffiths assert as well that s 132(2) of the Copyright Act imposes a further requirement that the infringer knows or ought reasonably to know that the article being distributed is an infringing copy and that there is no assertion of knowledge in the supporting documents. As the respondent correctly points out, this submission is simply incorrect. Wilful behaviour is central to the infringement charge as Mr Wiechering’s affidavit makes plain.

104 As to the appellant’s principal contention, it is said the supporting documents are entirely silent on the matter of prejudice and that it was not open to his Honour to equate evidence of gain or advantage to one party with prejudice to the other. Further it is said, there is no scope for the drawing of inferences to fill the gap.

105 The submission does less than justice to the supporting materials. Mr Wiechering’s affidavit and the exhibited indictment together indicate the context in which the conspiracy and copyright infringement occurred. It was one in which pirated software was to be provided to the underground Internet software piracy community. When a pirated product was released by DOD couriers, DOD members world-wide would be able to access the cracked software and, in Mr Wiechering’s words, ‘were able to provide it to anyone they wished; as a result, unauthorized copies of copyrighted software were soon available to anyone with a computer and access to the Internet’.

106 The affidavit indicated that –

(i) DOD release reports showed that it released, cracked and took credit for more than 275 software programs with a retail value in excess of US$1,000,000. Ms Gabel notes that this value was calculated using the retail amount of each program as provided by the software manufacturer itself;

(ii) the 1899 individual titles downloaded by ParisAngel had a retail value far in excess of US$2,500;

(iii) in the three years to December 2001, DOD was estimated to have caused the illegal reproduction and distribution of more than US$50,000,000 worth of pirated software, movies, games and music; and

(iv) it was extremely important to DOD to release their cracked software before the legitimate version was publicly available.

107 Given the object of the conspiracy, the manner of its performance and the resultant open access it gave to software that was otherwise intended for commercial gain, it would in our view be open properly to infer (cf Holloway v McFeeters (1956) 94 CLR 470 at 477) that the release by DOD of any cracked software programme to its own sites would of itself without more ‘[affect] prejudicially the owner of [that] copyright’: s 132(2)(b). The reason for this is that an alternate and illegitimate source for the owner’s work knowingly would have been created with the intent that it be used by members who would make it available to others. The evidence in the supporting documents is that such sources were so used.

108 This is not the basis upon which his Honour found that the prejudice requirement was made out, though it would be our preferred basis for concluding that the double criminality requirement had in this respect been satisfied.

109 His Honour, in effect, treated the infringer’s acquisition of an article of value (measured by reference to the retail value of the copyright owner’s product: see Mr Wiechering’s affidavit at pars 42 and 43) as being at the expense of the owner and hence affecting the owner prejudicially. This equation appears to invoke an unjust enrichment analysis. We agree with the respondent that it was an analysis that his Honour could appropriately adopt in the circumstances.

110 We reject this ground of appeal.

CONCLUSION

111 Though the notice of appeal gives eight grounds, only the seven we have dealt with were the subject of written submissions. Ground 8 was not the subject of separate treatment at the hearing. It seems not to travel beyond what has been traversed and rejected in other grounds and we do not consider it necessary to address it.

112 The appeal will be dismissed with costs.

113 Since we have determined that Mr Griffiths is eligible for surrender in relation to both the extradition offences for which his surrender is sought by the United States, s 21(6)(g) of the Act requires us to include in our judgment a statement to that effect specifying those offences. As we have mentioned, in his statement pursuant to s 21(6)(g), Jacobson J purported to qualify the terms of the charge in Count Two of the indictment. We do not think this course is permissible or, indeed, necessary. The object of s 26(1)(g) is to identify precisely each ‘qualifying extradition offence’ for the purposes of the surrender determination to be made subsequently by the Attorney-General under s 22 of the Act. Our determination will now overtake that of Jacobson J.

I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 10 March 2005

Counsel for the appellant:	N C Hutley SC with C A Moore

Solicitor for the appellant:	Legal Aid Commission of NSW

Counsel for the first respondent:	Paul Roberts SC with P E McDonald

Solicitor for the first respondent:	Director of Public Prosecutions (Cth)

Dates of hearing:	11 and 12 November 2004

Date of judgment:	10 March 2005

Top