FEDERAL COURT OF AUSTRALIA

Ngo v United States of America [2009] FCAFC 87

EXTRADITION– magistrate’s determination under s 19 of Extradition Act 1988 (Cth) (the Act) that appellant eligible for surrender to United States of America – indictment in USA against appellant and nine other defendants in California and elsewhere alleging conspiracy by them knowingly and intentionally to distribute drugs in USA and elsewhere contrary to sections 846 and 841(a)(1) of Title 21 of US Code – allegation that appellant had, by mobile telephone in New South Wales, agreed with co-conspirators overseas that drugs would be delivered into Sydney for redistribution in Australia – allegation that USA co-conspirator and Canadian co-conspirator arranged to send drugs to appellant in Sydney for redistribution in Australia – whether the materials produced before magistrate gave reason to believe that appellant was more than a buyer, that is, was part of the conspiracy as charged – whether dual criminality – whether s 19(2)(c) of the Act required a hypothesis in all cases that facts differed from those alleged.

Acts Interpretation Act 1901 (Cth) s 19A

Criminal Code Act 1995 (Cth)

Criminal Code paras 11.5, 302.2 and 307.2

Drug Misuse and Trafficking Act 1985 (NSW) ss 25, 26

Extradition Act 1988 (Cth) ss 3(a), 5, 7, 10, 11, 16, 19, 21, 22

Title 21 United States Code sections 841(a)(1), 846

Treaty on Extradition between Australia and the United States of America done at Washington on 14 May 1974 as amended by the Protocol done at Seoul on 4 September 1990 Article XI

Extradition (United States of America) Regulations (Cth) reg 3, 4

Federal Republic of Germany v Parker (1998) 84 FCR 323 discussed

Hermanowski v United States of America (2006) 149 FCR 93 cited

Parker v Federal Republic of Germany (1997) 95 ACrimR 174 referred to

Pasini v United Mexican States (2002) 209 CLR 246 referred to

TRUONG LAM NGO v UNITED STATES OF AMERICA and

MAGISTRATE PAT O'SHANE

NSD 1855 of 2008

LINDGREN, EMMETT AND GRAHAM JJ

17 JULY 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal.

THE COURT STATES THAT:

3.                  The appellant, Truong Lam Ngo, is eligible for surrender to The United States of America within the meaning of section 19(2) of the Extradition Act 1988 (Cth) in relation to the extradition offence of conspiracy to distribute methamphetamine, MDMA and marijuana contrary to Title 21 of the United States Code sections 846 and 841(a)(1).

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES

REASONS FOR JUDGMENT

LINDGREN J:

1                                             I agree with Emmett J and Graham J.  The facts are set out in their Honours’ reasons for judgment. I make the following additional observations in relation to the dual criminality ground of appeal.

2                                             In terms of s 19(2)(c) of the Extradition Act 1988 (Cth) (the Act), the circumstances of the present case are unusual.  Commonly in extradition cases the conduct to which that paragraph refers takes place outside Australia, often in the extradition country, and the person enters Australia subsequently, perhaps as a fugitive.

3                                             The materials that were before the magistrate gave reasonable cause to believe that the appellant’s conduct constituting the offence of conspiring to distribute a “controlled substance” contrary to Title 21 United States Code § 846 (and see also § 841(a)(1)) included the following:

·                    the appellant in New South Wales spoke on a mobile telephone to Mr Do, a co-conspirator in the United States, and they arranged that the appellant would purchase drugs from Mr Le or Mr Do which would be delivered to the appellant in Sydney for distribution by him within Australia;

·                    this was part of a larger scheme by which Mr Do would arrange large-scale international drug transactions between  Mr Le, another co-conspirator and a resident of Canada, and buyers in the United States and Australia, including the appellant, who were to redistribute the drugs in the United States and Australia;

·                    the appellant and Messrs Do and Le arranged for the shipment of the drugs from Vancouver, Canada to Sydney, New South Wales;

·                    the appellant remitted from New South Wales the proceeds of the selling in Australia to Mr Do or his associates in the United States.

4                                             It was common ground that the appellant’s conduct constituted an extradition offence in relation to New South Wales.  Reference was made to ss 11.5 and 307.2 (and cf s 302.2) of the Criminal Code Act 1995 (Cth) and ss 25 and 26 of the Drug Misuse and Trafficking Act 1985 (NSW) (DMT Act).  It may be noted that s 26 of the DMT Act creates the offence of conspiring with another person or other persons to commit an offence under Div 2 of Pt 2 of that Act, and s 25 of the DMT Act creates various offences relating to the “supply” of prohibited drugs.

5                                             In these circumstances the application of s 19(2)(c) of the Act is simpler, not more complex, than if the appellant’s conduct had occurred outside Australia.  It is a mistake to think that paragraph (c) of s 19(2) requires an exercise of hypothesisation in all cases.  It would turn the provision on its head to treat it as requiring that the facts actually alleged be hypothesised to be different with a view to inquiring whether those different facts would constitute an extradition offence in relation to New South Wales, when the facts actually alleged already do.

6                                             It is true that s 19(2)(c) of the Act assumes that the person’s alleged conduct constituting the extradition offence may have taken place outside the relevant part of Australia.  However, if it took place within that part, the subsection is still capable of being applied.  There is no occasion, either, to identify “equivalent conduct” within s 19(2)(c).

7                                             Federal Republic of Germany v Parker (1998) 84 FCR 323 is distinguishable, but useful in one respect.  In that case the allegation was that Mr Parker recruited, organised and paid couriers in Germany and Austria to transport large quantities of heroin from Thailand to Australia for sale.  The case is distinguishable because Mr Parker’s conduct was alleged to have occurred outside Australia, and s 19(2)(c) of the Act therefore required that his conduct as alleged be notionally transposed into the relevant part of Australia – Tasmania.

8                                             The utility of the case relates to one aspect of the facts alleged which the Full Court held was not required by s 19(2)(c) to be assumed to be different.  The primary judge held that the magistrate’s task had been “to determine whether or not [Mr Parker] would have committed an offence under Australian (or Tasmanian) law had he recruited, in Tasmania, couriers with the intent that they travel overseas, acquire heroin, and import it into Australia” (Parker v Federal Republic of Germany (1997) 95 ACrimR 174 at 186).

9                                             Mr Parker submitted that this was the wrong question to ask, and that the correct question was whether procuring a person in Tasmania to travel to another country for the purpose of acquiring drugs for transportation to a third country (that is, a country other than Australia) would have constituted an extradition offence.  The Full Court considered Mr Parker’s submission to be misconceived.  Their Honours stated (at 347):

The offences alleged here involve the recruitment, organisation and payment of couriers in Germany to transport large quantities of heroin from Thailand to Australia, not somewhere other than Australia, for sale.  It is to Australia that the heroin was being brought.  If such activities were carried out in Tasmania in August 1996, they would be punishable by more than 12 months imprisonment.

10                                          The passage quoted makes clear that s 19(2)(c) of the Act does not require that any and every connection between the conduct actually alleged and Australia be replaced by a hypothesised connection between that conduct and another country.

11                                          By the present indictment against the appellant and nine other defendants, the appellant is alleged to have conspired with others in California and elsewhere knowingly and intentionally to distribute certain drugs in violation of Title 21 United States Code §§ 841(a)(1) and 846.  The material that was before the magistrate provided reasonable grounds for believing that the appellant, participating by mobile telephone in New South Wales, was party to an arrangement for drugs to be shipped from Vancouver into Sydney for distribution by him within Australia, and that pursuant to the arrangement drugs were sent to an addressee and address (not the appellant or the appellant’s) in Sydney.  The alleged conduct of the appellant would have constituted an extradition offence in relation to New South Wales without any change to the alleged facts.

12                                          For the reasons given by Emmett J and Graham J as supplemented by the observations above, there should be orders as proposed by their Honours.

Associate:

Dated:         17 July 2009

REASONS FOR JUDGMENT

EMMETT J:

INTRODUCTION

13                                          The first respondent, the United States of America, seeks extradition of the appellant pursuant to the Extradition Act 1988 (Cth) (the Act) to face a charge of conspiracy to distribute prohibited drugs.  A magistrate of the Local Court of New South Wales (the Magistrate), acting under s 19 of the Act, determined that the appellant was eligible for extradition to the United States.  Upon an application for review under s 21 of the Act, a judge of the Supreme Court of New South Wales confirmed the orders of the Magistrate.  The appellant now appeals to the Full Court of the Federal Court pursuant to s 21(3) of the Act.

14                                          Under s 19(1) of the Act, the Magistrate was required to conduct proceedings to determine whether the appellant was eligible for surrender on the request of the United States.  Under s 19(2), a person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if, relevantly, the following prerequisites are satisfied:

(b)       where the Act applies in relation to the extradition country subject to limitations, conditions, exceptions or qualifications that require the production to the magistrate of certain documents—those documents have been produced to the magistrate; and

(c)        the magistrate is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in New South Wales, that conduct, or that equivalent conduct, would have constituted an extradition offence in relation to New South Wales.

15                                          Section 11 of the Act provides that the Regulations may state that the Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to that country.  The Extradition (United States of America) Regulations (Cth) (the Regulations) provide that the Act applies in relation to the United States subject to the Treaty on Extradition between Australia and the United States of America, which came into force on 8 May 1976 (the Treaty), as amended by a Protocol of 4 September 1990 (the Protocol).  The effect of the Treaty, as amended by the Protocol, is that a request for the extradition of a person who is sought for prosecution must be supported by a description of the facts that sets forth reasonable grounds for believing that an offence has been committed and that the person sought committed the offence.  The description may be by way of affidavit, statement or declaration. 

16                                          The grounds of appeal that were pressed are as follows:

·                    The primary Judge erred in determining that there are reasonable grounds for believing that an offence has been committed by the appellant within the meaning of the Regulations and the applicable article of the Treaty as amended by the Protocol, contrary to the requirements of s 19(2)(b).

·                    The primary Judge erred in determining that the requirements of s 19(2)(c) of the Act were satisfied.

REASONABLE GROUNDS FOR BELIEF

17                                          Prior to 4 March 2008, Australia received a request from United States dated 25 February 2008.  By notice under s 16 of the Act dated 4 March 2008, the Minister for Home Affairs stated that such a request had been received from United States in relation to the appellant for the offence of conspiracy to distribute prohibited drugs contrary to provisions of the United States Code. 

18                                          The documents submitted by the United States in support of the request included an indictment of 10 defendants, including the appellant, on the charge just described.  The first count asserted that, on a date unknown and continuing to on or about 15 October 2007, in Orange County, within the Central District of California, and elsewhere, the defendants including the appellant, knowingly and intentionally conspired and agreed with each other to knowingly and intentionally distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, a controlled substance, in violation of a provision of the United States Code. 

19                                          The indictment alleged that the objects of the conspiracy were to be accomplished in substance by, inter alia, the appellant, a resident of Australia, purchasing methamphetamine from another defendant (the United States Defendant) and arranging for the delivery of the methamphetamine in Australia for redistribution.  The indictment also alleged that, in furtherance of the conspiracy, and to accomplish the objects of the conspiracy, the defendants, including the appellant, the United States Defendant and another defendant (the Canadian Defendant), committed various overt acts within the Central District of California and elsewhere, including:

·                    In March 2007, the United States Defendant, the Canadian Defendant and the appellant arranged for the shipment of methamphetamine from Vancouver, Canada, to the appellant in Sydney;

·                    Between 23 March 2007 and 5 April 2007 the United States Defendant and the Canadian Defendant sent to Sydney approximately 8,910 grams of methamphetamine;

·                    On or about 11 May 2007 the United States Defendant and the Canadian Defendant discussed the distribution of drugs in Australia and the collection of proceeds from drug sales in Australia.

20                                          The extradition request was supported by affidavits of a United States special agent, who deposed to telephone conversations during March 2007 between the United States Defendant and the appellant.  The broad effect of the conversations was to make arrangements for receipt of drugs at various addresses in Australia.

21                                          The appellant contends that the evidence before the primary Judge was insufficient to establish more than the proposition that the appellant was a customer of the United States Defendant.  He contends that, even if there were evidence of the transfer of money back to the United States Defendant, such a transfer was consistent with payment by the appellant for the supply of methamphetamine.  He says that, while the United States Defendant may have been aware that the appellant intended to supply the drugs in Australia, it did not follow that there was any agreement between them to do so.  A mere coincidence of aims, he says, is insufficient to establish an agreement, which is necessary to constitute the conspiracy alleged in the indictment.

22                                          The appellant contends that the underlying offence charged in the indictment is the distribution of methamphetamine in the United States and Australia and there is no evidence, he says, that the appellant knowingly and willingly became a member of any alleged conspiracy to distribute methamphetamine.  He says that he could not knowingly or willingly become a member of such a conspiracy without an interest in distribution of methamphetamine in the United States as well as Australia:  even if he were part of a conspiracy, he was not a party to the conspiracy actually alleged. 

23                                          The appellant says that, to enter into a transaction for the supply of drugs would not, even if there were a common understanding as to the receiver’s intention to supply the drug to others, amount to a conspiracy to supply the drug to others.  He says that evidence would be required that the parties were engaged in accomplishing the same common object; that is to say, there must be an intention that the unlawful act will occur, not merely an expectation that it will occur.  The appellant says that there is no evidence that he had any interest in the distribution of drugs in the United States, let alone that he was engaged in accomplishing that object.  He says that, where a central person, such as the United States Defendant, engages in a number of similar criminal enterprises with a variety of people, that does not, of itself, establish a single agreement:  it does not establish a single conspiracy between all of the persons so involved.

24                                          However, it is not necessary for the material before the Magistrate to be evidence sufficient to show a case against the person to be extradited.  The description of the facts, by way of affidavit, statement or declaration, need do no more than set forth facts disclosing reasonable grounds for belief.  The facts may include facts from which the reasonableness of the relevant belief can be established.  A reasonable belief that an offence has been committed and that the person sought committed it might be based upon material falling well short of that required to be tendered to prove a prima facie case.  A description of the facts requires no more than a verbal portrait of the facts that sets forth reasonable grounds for believing that an offence has been committed and that the person whose extradition has been sought committed it (Hermanowski v USA (2006) 149 FCR 93 at [58]-[59]).

25                                          The primary Judge was satisfied, by the material in the affidavits of the United States special agent, that the facts deposed to provided reasonable grounds for an inclination of the mind towards the proposition that the appellant was part of an overall arrangement or agreement for the on-selling of methamphetamine in Australia and that he was participating in a common plan to that effect with the United States Defendant.  His Honour considered that the telephone intercepts deposed to by the special agent made it clear that, so far as the Australian distribution was concerned, the appellant was a knowing and willing participant.  His Honour was satisfied that the description of the facts was capable of establishing the offence of conspiracy with which the appellant has been charged.  His Honour considered that those facts set forth reasonable grounds for believing that the offence with which the appellant has been charged has been committed and that the plaintiff committed it.  There was no error on the part of the primary Judge.

DUAL CRIMINALITY

26                                          The appellant submitted to the primary Judge that the requirements of s 19(2)(c) had not been met.  However, he conceded that, for the submission to be successful, the decision of the Full Court in Federal Republic of Germany v Parker (1998) 84 FCR 323 (Parker’s Case)would have to be overruled.  The primary Judge considered that he was bound to follow that decision.  While the appellant indicated that he wished to preserve his right to challenge the correctness of the decision should the matter proceed further, the appellant made no submissions to the primary Judge on the issue arising under s 19(2)(c). 

27                                          It is difficult to see how the decision in Parker’s Case would govern the outcome of this proceeding.  In that case, the Federal Republic of Germany sought the extradition of Mr Parker to face charges that, outside Australia, he had recruited couriers with the intent that they travel overseas, acquire prohibited drugs, and import the drugs into Australia.  The Court considered the application of s 19(2)(c) on the hypothesis that Mr Parker had engaged in that conduct in Australia.  However, that is not the present case.

28                                          Counsel for the appellant characterised the offence with which the appellant has been charged as being to conspire with the United States Defendant and others to import prohibited drugs from Canada to Australia, to distribute the drugs in Australia and to pay the United States Defendant for the drugs in the United States.  He contended that the requirements of s 19(2)(c) called for an examination of whether, if the roles of the appellant in Australia and the United States Defendant in the United States had been reversed, there would be an offence committed in New South Wales.  Thus, he said that it would not be an offence in New South Wales for the appellant, if located in the United States, to conspire with a resident of Australia to import prohibited drugs into the United States and distribute them there and to pay the Australian resident for the drugs.  He says that hypothesis must be examined because of the language of s 19(2)(c), which by the use of the conditional “if”, indicates that the conduct to be examined does not actually take place in Australia.

29                                          The flaw in the contention, even if it is correct, and no view is expressed on its correctness, is that it overlooks the fact that the conspiracy charged against the appellant is not simply to import drugs into Australia and to distribute them in Australia but also to import drugs into and distribute them in the United States.  Thus, reciprocating the facts would have no consequence in the present case.  That is to say, it would be an offence in New South Wales for the appellant to conspire in the United States with a resident of New South Wales to import prohibited drugs into the United States and New South Wales and to distribute the drugs in the United States and New South Wales.  It follows that the second ground must fail.

ERRORS OF THE MAGISTRATE

30                                          The Notice of Appeal contained a third ground, namely, that the primary Judge erred in failing to hold that the Magistrate had erred in making her determination under s 19 of the Act.  However, the ground was, quite properly, abandoned.  The Act makes clear that the review by the Supreme Court is a review by rehearing, albeit limited to the material before the Magistrate.  Any deficiency in the reasoning of the Magistrate is therefore of no moment. 

CONCLUSION

31                                          The appeal must be dismissed with costs.  Pursuant to s 21(6)(g), the Court must state that the appellant is eligible for surrender, within the meaning of s 19(2) of the Act, in relation to the extradition offence of conspiracy to distribute methamphetamines, MDMA and marijuana. There should be orders accordingly.

Associate:

Dated:         17 July 2009

REASONS FOR JUDGMENT

graham j

Introduction

32                                          The matter presently before the Court is an appeal brought under s 21(3) of the Extradition Act 1988 (Cth) (‘the Act’) from the orders of a Judge of the Supreme Court of New South Wales (‘the primary judge’) made on 13 November 2008 upon an application for review of orders made by the second respondent under s 19(9) of the Act on 29 April 2008.

33                                          The application for review was instituted by a summons filed 13 May 2008 in the Supreme Court of New South Wales in which the appellant sought an order pursuant to s 21(2)(b) of the Act quashing the orders made by the second respondent on 29 April 2008, and an order pursuant to s 21(2)(b)(i) of the Act directing the second respondent to order the release of the appellant. 

34                                          On 13 November 2008 the primary judge dismissed the appellant’s summons, confirmed the orders made by the second respondent on 29 April 2008 and ordered the appellant to pay the first respondent’s costs.

35                                          The Notice of Appeal filed 28 November 2008 in this Court specified three grounds of appeal, the third of which was not pressed on the hearing of the appeal.  The other two grounds were as follows:

‘1.        The learned judge erred in determining that there are reasonable grounds for believing that an offence has been committed by the appellant within the meaning of Regulation 4 of the Extradition (United States of America) Regulations and Article XI(3)(c) of the Treaty on Extradition between Australia and the United States of America set out at Schedule 1 of the Regulations as amended by the Protocol set out at Schedule 2 of the Regulations.

2.         The learned judge erred in determining that the requirements of s19(2)(c) of the Extradition Act, were satisfied.’

36                                          The first ground of appeal raised an issue which was similar to that addressed by a Full Court, comprising Gyles, Conti and Graham JJ, in Hermanowski v United States of America (2006) 149 FCR 93 (‘Hermanowski’). 

37                                          The second ground of appeal raised an issue which was similar to that addressed by a Full Court, comprising Ryan, Einfeld and Foster JJ, in Federal Republic of Germany v Parker (1998) 34 FCR 323 (‘Parker’) at 346-7.

38                                          The United States of America (‘the United States’) is an extradition country within the meaning of the Act, a declaration to that effect having been made in Regulation 3 of the Extradition (United States of America) Regulations (‘the Regulations’).

39                                          In exercise of the powers conferred upon the Attorney-General under s 16(1) of the Act (see also s 19A of the Acts Interpretation Act 1901 (Cth)), the Minister for Home Affairs, by a notice in writing dated 4 March 2008 and directed to ‘a magistrate before whom the person named in this notice is brought’, stated that an extradition request had been received from the United States in relation to the appellant.  Such extradition request was received on a date between 25 February 2008 and 4 March 2008.

The legislative background

40                                          The Act commenced on 1 December 1988.  One of the principal objects of the Act as set forth in s 3 was:

‘(a)      to codify the law relating to the extradition of persons from Australia to extradition countries … and, in particular, to provide for proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited, without determining the guilt or innocence of the person of an offence’

41                                          Section 11 of the Act provided for the making of regulations which would modify the application of the provisions of the Act in relation to specified extradition countries.  Relevantly it provided:

‘11(1)         The regulations may:

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

…

(1C)     For the purposes of subsections (1) and (1A), the limitations, conditions, exceptions or qualifications that are necessary to give effect to a treaty may be expressed in the form that this Act applies to the country concerned subject to that treaty.

…’

42                                          Regulation 4 of the Regulations provided in respect of the application of the Act:

‘4.        The Act applies in relation to the United States of America subject to the Treaty on Extradition between Australia and the United States of America …’

43                                          The Treaty on Extradition between Australia and the United States of America done at Washington on 14 May 1974 as amended by the Protocol done at Seoul on 4 September 1990 (‘the Treaty’) was set forth in Schedules 1 and 2 to the Regulations. 

44                                          Under Article XI of the Treaty, as replaced by Article 7 of the Protocol, provision was made for requests for extradition relevantly as follows:

‘(1)      All requests for extradition shall be made through the diplomatic channel.

(2)       The request for extradition shall be supported by:

(a)        documents, statements, or other types of information which describe the identity and probable location of the person sought;

(b)        a description of the conduct constituting the offence;

(c)        a statement of the law describing the essential elements of the offence for which extradition is requested; and

(d)        a statement of the law describing the punishment for the offence and the law relating to the limitation of legal proceedings.

(3)        A request for the extradition of a person who is sought for prosecution … shall also be supported by:

(a)        a copy of the warrant or order of arrest issued in the requesting State for the arrest of the person for the offence;

(b)        a copy of the charging document, if any; and

(c)        a description of the facts, by way of affidavit, statement or declaration, setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it.

…’

45                                          Section 19(1) and (2) of the Act relevantly provided:

‘19(1)  Where:

(a)        a person is on remand under section 15;

(b)        the Attorney-General has given a notice under subsection 16(1) in relation to the person;

(c)        an application is made to a magistrate by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and

(d)        the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;

the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.

19(2)   … the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:

(a)       the supporting documents in relation to the offence have been produced to the magistrate;

(b)       where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate of any other documents–those documents have been produced to the magistrate;

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

(d)       the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence.’

46                                          ‘Extradition offence’ was defined in s 5 of the Act as follows:

‘5.        In this Act, unless the contrary intention appears:

…

extradition offence means:

(a)        in relation to a country other than Australia–an offence against a law of the country:

(i)         for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months; or

…

(b)        in relation to Australia or a part of a Australia–an offence against a law of Australia, or a law in force in the part of Australia, for which the maximum penalty is death or imprisonment, or other deprivation of liberty for a period of not less than 12 months.’

47                                          ‘Extradition objection’ was defined in s 7 of the Act.  For present purposes it has no relevance.

48                                          By s 19(3) of the Act ‘supporting documents’ was defined to mean:

‘(a)      if the offence is an offence of which the person is accused – a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant;

…

 (c)       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.’

49                                          Under s 10(2) of the Act a reference to ‘conduct constituting an offence’ was a reference to ‘the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed’.

50                                          Section 10(3) of the Act relevantly provided in respect of s 19(2)(c):

‘10(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;

(b)        any difference between the denomination or categorisation of offences under the law of the country and the law of Australia, or the law in force in the part of Australia, as the case requires, shall be disregarded.’

Section 19(2)(b) and Article XI(3)(c)

51                                          It will be appreciated that the Act applied in relation to the United States subject to the Treaty and the limitations, conditions, exceptions and qualifications contained therein that required the United States request for extradition of the appellant for prosecution to be supported by a description of the facts, by way of affidavit, statement or declaration, setting forth reasonable grounds for believing that an offence had been committed and that the appellant committed it (see Article XI(3)(c) of the Treaty). 

52                                          By virtue of s 19(2) of the Act the appellant was only eligible for surrender in relation to the extradition offence for which his surrender was sought if the relevant documents satisfying Article XI(3)(c) were produced to the second respondent.

53                                          The documents required by Article XI(3)(c) of the Treaty are directed to establishing, in the case of a person who has been charged, that the charge was properly laid (see Hermanowski at [48]).

54                                          The requirement of Article XI(3)(c) is that the request for extradition be supported by a description of the facts setting forth reasonable grounds for believing that an offence has been committed and that the person whose extradition is sought, committed it.  The requisite belief must be that of a reasonable person in the position of the magistrate, i.e. the question should be viewed objectively and not subjectively (see Hermanowski at [55]).

55                                          The expression ‘by way of affidavit, statement or declaration’ indicates the vehicles that may be employed to describe the facts setting forth reasonable grounds for believing that an offence has been committed and that the person whose extradition is sought committed it.  The alternatives of affidavit, statement and declaration indicate that the requirement imposed by Article XI(3)(c) may be met with some, but not strict, solemnity (see Hermanowski at [57]).

56                                          Article XI(3)(c) requires something different from that which is required by Article XI(2)(b).  The key to the difference lies in the nature of the ‘facts’ to be described.  The ‘facts’ referred to in Article XI(3)(c) are not necessarily restricted to the ‘facts’ constituting the alleged criminal conduct, but may include facts from the which the reasonableness of the relevant belief can be established.  Those facts may include the state of the investigations conducted up to and including that time.  This reflects the circumstance that a reasonable belief that an offence has been committed and that the person sought committed it might be based upon material falling well short of that required to be tendered to prove a prima facie case, as had formerly been required by the Treaty.  When a wider view of the relevant facts is taken, the apparent ellipsis in the provision disappears.  The ‘facts’, as so understood, would, and should, include facts disclosing the reasonable grounds for belief (see Hermanowski at [58]).

57                                          A ‘description of the facts’ requires no more than a verbal portrait of the facts.  The sufficiency of that portrait will be determined by questioning whether it sets forth reasonable grounds for believing that an offence has been committed and that the person whose extradition has been sought committed it.  ‘Setting forth’ should be treated as equivalent to ‘that would, if correct, provide’ (per Hermanowski at [59]).

58                                          A clear distinction is to be drawn between a description of the facts that would, if correct, establish a prima facie case, that would, if correct, provide reasonable grounds for believing that an offence has been committed and that would, if correct, provide reasonable grounds for suspecting that an offence has been committed.  Remembering that eligibility for surrender is to be determined without determining the guilt or innocence of the person whose extradition is sought, the description of the facts need not descend to the detail of how the facts will be proved (see Hermanowski at [60]).

59                                          Article XI(3)(c) of the Treaty will be satisfied if the description of the facts provides reasonable grounds for the requisite belief, in this case an inclination of the mind towards the proposition that the relevant offence has been committed and that the appellant committed it.  This would be sufficient even if the description of the facts fell short of proof.  Article XI(3)(c) does not mandate either that there must be an explanation of the facts sufficient to demonstrate reasonable grounds for believing that an offence has been committed and that the person whose extradition has been sought committed it, that the intended witnesses for the prosecution be identified, that their availability to give evidence be confirmed and their likely evidence be specified, or that there must be disclosure of material from which an assessment may be made of the quality of the evidence to be called to prove the facts described.  Such material may, but need not necessarily, be provided (see Hermanowski at [61]-[62]).

Section 19(2)(c)

60                                          In Parker, extradition to Germany of the respondent in that case had been sought in respect of offences involving the recruitment, organisation and payment of couriers in Germany to transport large quantities of heroin from Thailand to Australia.

The respondent in Parker argued that ‘dual criminality’ under s 19(2)(c) of the Act should be addressed by determining whether recruitment of couriers in Australia (Tasmania being the relevant place) to transport large quantities of heroin from Thailand to a third country, other than Australia, would constitute an extradition offence in Tasmania.

The Full Court held that s 19(2)(c) did not call for consideration of such a situation.  Rather, the question was whether recruitment of couriers in Australia (Tasmania) to transport large quantities of heroin from Thailand to Australia, would constitute an extradition offence. 

61                                          Before the primary judge the appellant sought to preserve his right to challenge the correctness of the Full Court’s decision in Parker but no submissions were advanced as to why the judgment of the Full Court was said to be wrong.

The facts

62                                          Following the making by the first respondent, the United States, of its extradition request in relation to the appellant, Truong Lam Ngo, the second respondent conducted proceedings to determine whether the appellant was eligible for surrender in relation to an offence charged in ‘COUNT ONE’ of an indictment filed in the United States District Court for the Central District of California on 5 December 2007 charging the appellant with conspiracy to distribute methamphetamine, MDMA (methylenedioxymethamphetamine) and marijuana contrary to Title 21 United States Code ss 846 and 841(a).

63                                          It would appear that on 29 April 2008 the second respondent determined that the appellant was eligible for surrender in relation to the extradition offence for which his surrender was sought by the United States.  It appears that by a warrant in the statutory form her Honour ordered that the appellant be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under s 22(5) of the Act.  Her Honour informed the appellant of his right to seek a review of her order under s 21(1) of the Act and recorded the extradition offence in relation to which she determined that the appellant was eligible for surrender, making a copy of the record available to the appellant and the Attorney-General. 

64                                          The second respondent’s determination of 29 April 2008 was an administrative decision (per Gleeson CJ, Gaudron, McHugh and Gummow JJ in Pasini v United Mexican States (2002) 209 CLR 246 at [16].

65                                          The supporting documents and other documents describing the facts and setting forth reasonable grounds for believing that an offence had been committed by the appellant and that the appellant committed it included an affidavit of Carmen R. Luege, a member of the California State Bar employed by the United States Department of Justice as an Assistant United States Attorney for the Central District of California sworn 22 February 2008 and six exhibits thereto being:

Exhibit 1 – a copy of the indictment returned by the Grand Jury on 5 December 2007 in the United States District Court for the Central District of California certified as a full, true and correct copy of the original by the clerk of the Court;

Exhibit 2 – a copy of a warrant for arrest of the appellant dated 5 December 2007;

Exhibit 3 – copies of the pertinent sections of Title 21 U.S.C.: s 841(a)(1) and s 846;

Exhibit 4 – a copy of Title 18 U.S.C., s 3282;

Exhibit 5 – an affidavit of Special Agent Michael D. Miller in support of request for extradition of the appellant sworn 22 February 2008 to which copies of photographs of the appellant were exhibited as Exhibits 1, 2, 3 and 4, the first two of which appear to have been taken at Sydney Airport and the second two at Cabramatta in New South Wales; and

Exhibit 6 – a copy of a photograph of the appellant taken at the time of his arrest on 4 January 2008 at Cabramatta in New South Wales.

A supplemental affidavit of Special Agent Michael D. Miller in support of request for extradition of the appellant sworn 29 February 2008 was also produced to the second respondent.

66                                          The indictment returned by the Grand Jury identified 10 defendants including the appellant ‘a.k.a. Lam’.  The indictment contained three counts but extradition of the appellant was only requested in respect of ‘COUNT ONE’.  The count referred to Title 21 U.S.C. s 846 the terms of which were set out in Exhibit 3 to the affidavit of Carmen R. Luege.  The section relevantly provided:

‘846     Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.’

67                                          In Title 21 U.S.C. s 841(a) it was unlawful for any person knowingly or intentionally –

‘(1)      to … distribute … or possess with intent to … distribute … a controlled substance.’

Such substances included methamphetamine, marijuana and numerous other substances. 

68                                          Section A of COUNT ONE in the indictment, headed ‘OBJECTS OF THE CONSPIRACY’, charged a number of the defendants including the appellant with knowingly and intentionally conspiring and agreeing with each other to knowingly and intentionally distribute various substances in violation of Title 21, United States Code, s 841(a)(1).  Section B of COUNT ONE addressed ‘MEANS BY WHICH THE OBJECTS OF THE CONSPIRACY WERE TO BE ACCOMPLISHED’.  It included:

‘The objects of the conspiracy were to be accomplished in substance as follows:

1.         Defendant THAI DO would purchase MDMA, methamphetamine, and marijuana from defendant MINH LE, a resident of Canada, who would make arrangements with defendant THAI DO for the delivery of the drugs to drug buyers residing in the United States and Australia.

…

5.         Defendant TRUONG NGO, a resident of Australia, would purchase methamphetamine from defendant THAI DO and would arrange for the delivery of the methamphetamine in Australia for redistribution.

…’

69                                          Section C of COUNT ONE in the indictment listed a series of ‘OVERT ACTS’ alleged to have been committed.  These included:

‘In furtherance of the conspiracy and to accomplish the objects of the conspiracy, defendants MINH LE, THAI DO, LUAN NGUYEN, VINH TRAN, TRANG NGUYEN, TRUONG NGO, CLARK and WANG and other co-conspirators … committed various overt acts within the Central District of California and elsewhere, including but not limited to, the following:

…

20.       In March 2007, defendants THAI DO, MINH LE, and TRUONG NGO arranged for the shipment of methamphetamine from Vancouver, Canada, to defendant TRUONG NGO in Sydney, Australia.

21.       Between March 23, 2007, and April 5, 2007, defendants THAI DO and MINH LE sent to Sydney, Australia, approximately 8,910 grams of methamphetamine. 

22.       On or about May 11, 2007, defendant THAI DO and MINH LE discussed the distribution of drugs in Australia and the collection of proceeds from drug sales.

…’

70                                          The warrant for arrest of the appellant issued by the United States District Court for the Central District of California sought the arrest of the appellant to answer the indictment charging him with a series of offences including ‘21 U.S.C. §846: Conspiracy to Distribute Methamphetamine, MDMA and marijuana’ in violation of Title 21 United States Code, sections 846 and 841(a).

However, the extradition request was confined to the above charge of conspiracy.

71                                          The affidavit of Special Agent Michael D. Miller sworn 22 February 2008 included the following under the heading ‘Facts Supporting Indictment’:

‘9.        Shortly thereafter, DEA [United States Drug Enforcement Administration] agents obtained authorization to monitor and record Do’s [a resident of Southern California] telephones.  DEA contract employees, fluent in English and Vietnamese, subsequently monitored and recorded thousands of telephone conversations over these telephones, and prepared accurate summaries of these conversations in English.  DEA agents reviewed these summaries and discovered that Do acted as a middleman arranging large-scale international drug transactions, involving methamphetamine, MDMA, and marijuana, between Le, a drug seller residing in Canada, and drug buyers residing in the United States and Australia.  The agents also discovered that members of this drug distribution network redistributed the drugs in the United States and Australia, and collected, or helped others collect, the drug proceeds.

10.       Between March 20, 2007, and April 2, 2007, DEA employees continued to monitor and record Do’s telephone conversations and discovered that Do was making repeated telephone calls to the following Australian telephone numbers:  01161-41-219-9946, 01161-41-931-0271, and 011-61-43-967-0666.  DEA agents subsequently discovered, through informal law enforcement channels, that the subscriber of telephone number 01161-41-219-9946 was “Truong Lam Ngo” and that his date of birth was February 12, 1972.  The agents then asked one of the DEA contract employees monitoring and recording Do’s telephone calls to compare the voice of the person using telephone number 01161-41-219-9946 with the voice of the person using telephone numbers 01161-41-931-0271 and 011-61-43-967-0666.  The DEA contract employee did so and opined that the voices were identical and that the same person was using all three telephones.

11.       As the summaries of the intercepted telephone calls and other corroborating evidence reflect, between March 23, 2007, and March 28, 2007, Do made arrangements for Le to sell four packages of methamphetamine to Ngo in Australia.  Specifically, on March 23, 2007, at approximately 9:55 p.m., Do made an outgoing telephone call to telephone number 01161-41-931-0271 and spoke to Ngo.  During this conversation, Do told Ngo that others urgently needed addresses in order to send out “a lot to the addresses.”

12.       On March 25, 2007, at approximately 5:44 p.m., Do made another outgoing telephone call to telephone number 01161-40-931-0271 (sic) and spoke to Ngo.  During this conversation, Ngo told Do that the “old address” was correct and asked Do how long it would take if “it worked.”  Do stated that it would only take two days and to “text” him the address.  Do then asked Ngo how long it would take to finish “four pieces,” whereupon Ngo replied that it would take about four days.  At this point, Do told Ngo that he would tell them that it would take four or five days to sell the “cars” and if they agreed to that time frame that they should send the “cars” over.¹  Immediately after the foregoing telephone call, Do placed an outgoing telephone call to telephone number 778-668-6359 in Vancouver, British Columbia, Canada.

13.       On March 26, 2007, at approximately 6:38 p.m., Do placed another outgoing telephone call to telephone number 778-668-6359.  Moments later, Do called Ngo, who was using telephone number 011-61-40-931-0271 (sic), and told Ngo that he had just spoken to them and that they would have it either that night or the next day – and that it would arrive on Ngo’s side on March 30, 2007.  Do then asked Ngo whether he (Ngo) could make arrangements and Ngo stated that he could do so.  At this point, Ngo asked Do how many “cars” would arrive and Do stated that he thought there would be four “cars.”

14.       On March 28, 2007, at approximately 9:14 p.m., Do called Ngo, who was using telephone number 011-61-43-967-0666, and stated that the four “cars” would be sent shortly, whereupon Ngo told Do that he would probably be gone the following day and that Do should call “brother SA” at the same number, i.e., telephone number 011-61-43-967-0666.  Shortly after this telephone conversation, DEA agents notified the Australian Federal Police that Ngo planned to leave Australia the following day.

…

¹  Based on my experience and the facts and circumstances surrounding this case, I believe that the terms “four pieces” and “cars” constitute code language for multi-pound quantities of methamphetamine.’

72                                          The supplemental affidavit of Special Agent Michael D. Miller sworn 29 February 2008 included supplemental material as follows:

‘2.        As explained in the original affidavit I submitted in support of the extradition of LAM NGO, during this investigation the Drug Enforcement Administration, Orange County Resident Office (“DEA OCRO”), intercepted thousands of telephone conversations over wireless telephones (Target Telephones Four through Ten) used by defendant THAI DO.  By monitoring THAI DO’s Target Telephones, DEA learned that THAI DO acted as a middleman arranging large-scale international drug transactions between drug sellers and drug buyers.  LAM NGO, in Australia, was one of the drug buyers who received multi-pound quantities of methamphetamine from THAI DO’s drug distribution network.

…

4.         Based on the evidence summarized below, I believe that LAM NGO, in Australia, used Australian telephone numbers 01161-41-219-9946 (the “9946 Number”), 01161-40-931-0271 (sic) (the “0271 Number”), and 01161-43-967-0666 (the “0666 Number) to arrange the shipment of methamphetamine to Australia, the sales of the drugs there, and the collection of drug proceeds:

a.         While monitoring THAI DO’s telephone, DEA OCRO intercepted drug related conversations with a person in Australia using the 9946 Number.  Early in the investigation, Felicity Antill, with AFP’s Transnational Crime Intelligence, submitted a letter to Country Attache Richard Joyce, Canberra Country Office, stating that the 9946 Number was subscribed to “Truong Lam Ngo,” with a date of birth of February 12, 1972.  Attache Joyce provided this information to me.

b.         After I learned that the 9946 Number was subscribed to Truong Lam NGO, DEA OCRO did not intercept any further calls with the 9946 Number.  The calls to and from Australia intercepted over Target Telephone Five were from two new Australian Numbers, the 0271 Number and the 0666 Number.  Consequently, I asked wire room monitor Jason Nguyen, who had become familiar with the voice of the person using the 9946 to compare the voice of that person to the voice of the persons using the 0271 Number and the 0666 Number to determine if the person using these three telephones were the same individual.  Jason Nguyen told me that he compared the voices and in his opinion the person using the 9946 Number was the same person using the 0271 Number and the 0666 Number.  At that point, I had reason to believe that the person using the 0271 Number and the 0666 Number was Truong Lam NGO.

c.          On March 25, 2007, DEA OCRO intercepted a conversation between THAI DO and LAM NGO, with Lam NGO  using the 0271 Number (Call Number 29 intercepted over Target Telephone Five) showing that Lam NGO planned to travel from Australia to Vietnam.  Throughout this affidavit I will summarize the content of intercepted conversations.  Most intercepted conversations were in Vietnamese.  Wire room monitors, fluent in English and Vietnamese, prepared English summaries of the intercepted conversations.  Descriptions of the calls described in this affidavit are based on my review of English summaries prepared by the wire room monitors.  During this conversation, THAI DO discussed the arrival date of a drug shipment to Australia.  THAI DO also asked LAM NGO to postpone his trip to Vietnam to do one more shipment.

d.         On March 26, 2007, DEA OCRO intercepted a conversation between THAI DO and LAM NGO, with LAM NGO using the 0271 Number (Call Number 110 intercepted over Target Telephone Five) [see [71] at para 13].  During this call, THAI DO told LAM NGO that the shipment would arrive around the 30^th and that, by then, LAM NGO would be gone already.

e.          On March 28, 2007, DEA OCRO intercepted a conversation between THAI DO and LAM NGO, with LAM NGO using the 0666 Number (Call Number 134 intercepted over Target Telephone Five) [see [71] at para 14].  During this conversation THAI DO told LAM NGO that they would be sending the “four cars” shortly and LAM NGO told THAI DO that he would probably be gone the following day.  Based on my training and experience and my knowledge of this investigation, I believe that the term “four cars” refers to methamphetamine. After intercepting this conversation, I notified Federal Agent Mark Webster, with the AFP, about LAM NGO’s planned departure.

…

h.         The evidence summarized in the sub-paragraphs above show that the person using the 0271 and 0666 Numbers (believed to be LAM NGO) told THAI DO that he would be traveling to Vietnam.  Australian authorities then confirmed, through the surveillance photos taken at the
Sydney Airport, that in fact defendant TRUONG LAM NGO did travel to Vietnam as he said he would during the intercepted calls.  Therefore, there is no doubt that LAM NGO was the person using the 0271 and 0666 Numbers.

5.         The following evidence shows that LAM NGO used the 0271 and 0666 Numbers to arrange the shipment of four packages of methamphetamine from Canada to Australia, which were seized by Australian authorities on March 30, 2007:

a.         On March 23, 2007, at approximately 9:55 p.m., THAI DO made an outgoing call to the 0271 Number.  (Call Number 23 over Target Telephone Five).  During this conversation, THAI DO told LAM NGO that “they” (quoted from a wire room monitors’ translations) were badly in need of addresses in order to send out “a lot to the addresses.”  Based on my training and experience and my knowledge of this investigation, I believe that during this call THAI DO was asking LAM NGO to get addresses which drug suppliers could use to ship drugs to Australia.

b.         On March 25, 2007, at approximately 5:44 p.m., THAI DO placed an outgoing call to the 0271 Number.  (Call Number 35 over Target Telephone Five).  During this conversation, LAM NGO told THAI DO that the old address was correct, and then asked THAI DO how long it would take if it worked.  THAI DO advised NGO that it would take only two days and to text him the address.  THAI DO then asked NGO how long it would take to finish four pieces.  NGO replied that it would take about four days.  THAI DO then advised NGO that he would tell them it would take four or five days to sell all those cars and if they agreed to that time frame then they should send the cars over.  Based on my training and experience and my knowledge of this investigation, I believe that the term “four pieces” refers to multi-pound quantities of methamphetamine and the term “cars” also refers to methamphetamine.  I also believe that during this conversation THAI DO and NGO were discussing how long it would take for NGO distribute (sic) the methamphetamineshipment within Australia.

c.          On March 26, 2007, at approximately 6:53 p.m., THAI DO placed an outgoing call to the 0271 Number.  (Call Number 110 over Target Telephone Five).  During this conversation, THAI DO told LAM NGO that he had just spoken to them and either on that same night, or the next day, they would have it.  THAI DO stated that it would arrive on LAM NGO’s side on March 30, 2007.  THAI DO asked NGO if he could make arrangements and NGO said he could.  THAI DO then confirmed the date, stating that if they would work tomorrow then it would arrive on the 30^th.  NGO then asked how many cars there would be and THAI DO replied that he thought there would be four cars.

d.         On March 28, 2007, at approximately 9:14 p.m., THAI DO placed an outgoing call to the 0666 Number (Call Number 134 over Target Telephone Five).  During this conversation, THAI DO told LAM NGO that they would send four cars a little bit later.  NGO told THAI DO that he was going out of town tomorrow and wanted THAI DO to call brother “SA” at that number (the 0666 Number).

…

8.         Federal Agent Webster told me that on or about March 30, 2007, the Australian Customs Service seized four packages which contained crystal methamphetamine shaped into a box.  Each package contained approximately 990 grams of crystal methamphetamine.  The packages were sent from addresses in Vancouver/BC, Canada to an address in Sydney, Australia.  Agent Webster told me that Australian agents did not submit this methamphetamine to a laboratory for further purity analysis.

9.         Based on my training and experience and my knowledge of this investigation, in my opinion, the evidence shows that the shipment of the four methamphetamine packages intercepted in Australia on March 30, 2007, was arranged by THAI DO to be delivered to Truong Lam NGO in Australia.  In addition, it may be inferred from the evidence that the methamphetamine seized by Australian authorities on March 23, 2007, also represented shipments arranged by THAI DO and LAM NGO.

10.       On March 29, 2007, at approximately 6:19 p.m., THAI DO placed an outgoing call to the 0666 Number.  (Call Number 150 over Target Telephone Five).  During this conversation, THAI DO told SA (an unidentified male) that as for the other one which THAI DO asked “Lam” to do, it would not come until Monday.  THAI DO then referred to it as the one at that light bulb place.  Based on my training and experience, conversations with other law enforcement agents, and my knowledge of this investigation, I believe that during this call THAI DO was telling SA that another shipment of methamphetamine, arranged by LAM NGO, will arrive on Monday at the light bulbs place.

11.       On April 1, 2007, at approximately 3:34 p.m., THAI DO placed an outgoing call to the 0666 Number.  (Call Number 210 over Target Telephone Five).  During this conversation, THAI DO told SA to tell Nghia to turn on the phone because they would arrive today.  THAI DO stated that they would arrive in two occasions in each occasion would be one car.  THAI DO said they would be sent from two different companies.  …

12.       Federal Agent Webster told me that, on about April 1, 2007, the Australian Customs Service seized a package destined for a company called Signice Neon located in the Sydney, Australia area.  Signice Neo (sic) is a lighting store, i.e. “the place for light bulbs” mentioned in Call No. 150, described above.  The seized package contained approximately 990 grams of crystal methamphetamine and was shipped via UPS from Vancouver/BC, Canada.  Federal Agent Webster told me that the National Measure Institute in Australia analyzed the methamphetamine seized on April 1, 2007, destined for the Signice Neon store and determined as follows:  The purity of the methamphetamine in that package ranged from a low of 48.3% to a high of 57.7%.  The average purity was 54.4%.  Using the average purity, the pure amount of actual methamphetamine contained in the seized package was 538.56 grams of methamphetamine.  Federal Agent Webster also explained that a second package destined for Signice Neon and matching the description of the seized package, was not seized by federal authorities, and was in fact delivered to the Signice Neon store.  Shipping records for this package show that the package was sent from Vancouver/BC Canada via DHL.

13.       Federal Agent Webster told me that AFP attempted to interdict the package at the lighting store before anyone signed for it, but were unable to do so.  Agents spoke with the store employee who said that he just signed for the package and then other people came to pick it up. …

15.       Between May and August 2007, DEA OCRO intercepted other telephone conversations between LAM NGO and THAI DO about other drug transactions in Sydney, Australia.  These calls show that LAM NGO was involved in the distribution of methamphetamine in Australia.  During the May through August 2007 period, LAM NGO did not use the 0271 or 0666 Numbers.  DEA OCRO determined that LAM NGO was one of the participants in the conversations described below by relying on the opinion of wire room monitor Jason Nguyen.  Jason Nguyen compared the known specimen of LAM NGO’s voice to the voices of the participants in the conversations described below.  Based on voice comparison and his familiarity with NGO’s voice, Jason Nguyen told me that he believes that LAM NGO was one of the participants in the conversation summarized below:

            a.         On May 15, 2007, at approximately 9:34 a.m., DEA OCRO intercepted call between THAI DO and NGO using Australian Telephone Number 61-43-709-8253. (Call Number 235 over Target Telephone Six).  During this call, THAI DO and LAM NGO discussed the transferring of suspected drug proceeds.  Based on my training and experience, I believe that this shows that LAM NGO distributed methamphetamine in Australia, collected drug proceeds, and then transferred the drug proceeds to THAI DO or his associates.

…

            e.         On August 4, 2007, at approximately 9:18 p.m., DEA OCRO intercepted a call between THAI DO and NGO using Australian Telephone Number 61-40-109-0071.   (Call Number 116 over Target Telephone Nine).  During this conversation THAI DO, told LAM NGO that Uncle Phuong’s side had new stuff which was good.  LAM NGO stated that he preferred to take care of the current deal. LAM NGO also said that after he finished this then he would meet with the other guy.  Based on my training and experience, conversations with other law enforcement personnel, and my knowledge of this investigation during this conversation, THAI DO and LAM NGO were discussing obtaining methamphetamine from a new source.  LAM NGO, however, wanted to finish the distribution of the methamphetamine he had on hand and the collection of drug proceeds from the sale of that methamphetamine before arranging a transaction with a new source.

…’

Ground of Appeal No. 1

73                                          In his reasons for judgment at [37] the primary judge highlighted that the appellant was advancing the incorrect test under Article XI(3)(c) of the Treaty arguing that the United States had failed to establish a prima facie case as distinct from that which the Article required namely an inclination of the mind towards the proposition that the relevant offence had been committed and that the appellant committed it.  His Honour found assistance on the question in the supplemental affidavit of Special Agent Miller and the telephone conversations referred to therein.  His Honour considered that the material deposed to provided support for the proposition that what was being discussed between Do and the appellant was not a simple sale transaction but one which encompassed a more complex arrangement.  What his Honour considered to be significant was that the methamphetamine did not seem to have been sent to the appellant but to other locations in Australia such as Signice Neon in Sydney.  His Honour considered that that provided support for the proposition that the appellant was not simply a purchaser of methamphetamine from Do but was himself a middleman in the distribution of that substance to various addresses in Australia.  At [42] his Honour said:

‘42.      Applying the Hermanowski test, I am satisfied that those facts provide reasonable grounds for an inclination of the mind towards the proposition that the plaintiff was part of an overall arrangement or agreement for the on-selling of methamphetamine in Australia and that he was participating in a common plan to that effect with Do.  The telephone intercepts make it clear that insofar as the Australian distribution is concerned, the plaintiff was a knowing and willing participant.’

74                                          The appellant’s contention on appeal that the primary judge erred in making his determination as set out above was supported by a series of discrete propositions regarding the evidence before the Court and the relevant legislative provisions.  Counsel for the appellant submitted that the evidence relied upon was insufficient to establish more than the proposition that the appellant was a customer of Do.  He submitted that the transfer of money back to Do was consistent with payment by the appellant for methamphetamine.  He further submitted that the fact that Do may have been aware that the appellant intended to supply the drugs in Australia did not mean that there was any agreement between them to do so.   The submission was that a mere co-incidence of aims is insufficient to establish an agreement.  The appellant submitted that he could not knowingly or willingly become a member of the particular conspiracy charged without an interest in distribution of drugs in the United States and elsewhere.

75                                          Given that eligibility for surrender was to be determined without determining the guilt or innocence of the person whose extradition was sought, what the primary judge had to assess was whether the verbal portrait of the facts set forth reasonable grounds for believing that an offence had been committed and that the appellant, whose extradition had been sought, committed it.

76                                          In my opinion the primary judge did not fall into error in reaching the conclusion which he did given the description of the facts that was before him. 

77                                          It is true that the appellant was charged with knowingly and intentionally conspiring and agreeing to knowingly and intentionally distribute methamphetamine and paragraph 5 of section B in the Indictment clearly alleged that an object of the conspiracy involved the appellant purchasing methamphetamine from Do and arranging for its delivery in Australia for redistribution.  However the facts deposed to by Special Agent Miller, especially in his supplemental affidavit, would, if correct, provide reasonable grounds for believing that the offence charged had been committed by the appellant.  The facts deposed to included conversations understood by Special Agent Miller, who had conducted numerous drug-related investigations for the United States Drug Enforcement Administration, to be conversations concerning the distribution within Australia of methamphetamine shipments arranged by Do, the collection of drug proceeds and the transfer of those proceeds to Do or his associates.

The primary judge did not fall into error in stating the test which was to be applied, nor did he apply that test incorrectly, given the facts which had been deposed to by Carmen Luege and Special Agent Miller.

Ground of Appeal No. 2

78                                          The charge in COUNT ONE of the indictment that the defendants including the appellant knowingly and intentionally conspired and agreed with each other knowingly and intentionally to distribute various substances in violation of Title 21 United States Code s 841(a)(1) identified the offence charged both temporally and geographically by commencing ‘Beginning on a date unknown to the Grand Jury and continuing to on or about October 15, 2007, in Orange County, within the Central District of California and elsewhere …’. 

79                                          The question which s 19(2)(c) posed for consideration by the primary judge on review was whether if the conduct charged or equivalent conduct had taken place in New South Wales at the time at which the extradition request in relation to the appellant was received, being a date between 25 February and 4 March 2008, that conduct or that equivalent conduct would have constituted an extradition offence in relation to New South Wales within the meaning of paragraph (b) of the definition of extradition offence contained in the Act (see [46] above) i.e. an offence against a law of Australia or a law in force in New South Wales for which the maximum penalty was death or imprisonment, or other deprivation of liberty for a period of not less than 12 months.

80                                          Relevantly for present purposes, the dual criminality test required consideration of whether or not the conduct charged of the defendants, including the appellant, knowingly and intentionally conspiring and agreeing with each other to knowingly and intentionally distribute methamphetamine in Australia would have constituted an offence against a law of Australia or a law in force in New South Wales 

81                                          At [59] the primary judge held that, because he was bound by Parker, the appellant’s submission under s 19(2)(c) of the Act failed. 

82                                          The appellant submitted that in addressing the requirement of s 19(2)(c) of the Act one had to hypothesise that the appellant would fill the shoes of Do in New South Wales and arrange for methamphetamine to be transported from the United States into Canada or from Canada into the United States for distribution there.  Not only is the submission contrary to Parker, it is misconceived. 

83                                          Relevantly, s 19(2)(c) required attention to be given to the conduct of the appellant as charged to determine whether that conduct would have constituted an offence against a law of Australia or a law in force in New South Wales for which the requisite penalty would be applicable.  The conduct to be addressed, or equivalent conduct, was the participation of the appellant in the conspiracy to knowingly and intentionally distribute methamphetamine in Australia.

84                                          It does not seem to me necessary, in the circumstances of this case to seek to ascertain what the consequences of ‘equivalent conduct’ would have been.  All that is necessary in this case is to determine whether or not the conduct of the appellant complained of was conduct which would have constituted an offence against a law of Australia or a law in force in New South Wales for which the requisite penalty was applicable. 

85                                          The simplest way of understanding s 19(2)(c) in relation to ‘equivalent conduct’, is to ask whether if a person engaged in conduct which constituted the offence of murder in relation to the United States, engaged in equivalent conduct in New South Wales, that equivalent conduct would have constituted an offence against a law of Australia or a law in force in New South Wales for which the requisite penalty was applicable.  But in this case, it is unnecessary to consider the consequences in New South Wales of a person engaging in ‘equivalent conduct’.

86                                          Were it necessary for the Court to consider the correctness of Parker in relation to the appeal presently before the Court, then, in my opinion, no case has been made out to warrant departure from the judgment of the Full Court in that matter.  In any event, this case does not require consideration of ‘equivalent conduct’.

87                                          It is clear that the conduct charged of the appellant constituting the offence in relation to the United States would also have constituted an extradition offence in relation to New South Wales by virtue of ss 11.5 and 302.2 or 307.2 of the Criminal Code as set out in the Schedule to the Criminal Code Act 1995 (Cth) and ss 25 and 26 of the Drug Misuse and Trafficking Act 1985 (NSW).

88                                          The appellant has failed to make good his second ground of appeal.

89                                          In my opinion, the appeal should be dismissed and the determination that the appellant is eligible for surrender should be confirmed.  Pursuant to s 21(6)(g) of the Act the Court should state that the appellant is eligible for surrender, within the meaning of s 19(2) of the Act, in relation to the offence of conspiracy to distribute methamphetamine, MDMA and marijuana contrary to Title 21 United States Code ss 846 and 841(a) as set out in COUNT ONE of the indictment filed in the United States District Court for the Central District of California on 5 December 2007.  The appellant should be ordered to pay the first respondent’s costs.

Associate:

Dated:         17 July 2009