FEDERAL COURT OF AUSTRALIA

Matson v United States of America [2018] FCAFC 57

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondents’ costs of the application, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents’ costs of the appeal, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondents’ costs of the application, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    These proceedings concern, in broad terms, a request by the United States of America for the extradition of Mr Baron Matson from Australia to the United States for the purpose of prosecuting him on charges of mail fraud, wire fraud, conspiracy to commit mail fraud and wire fraud, and conspiracy to commit money laundering. The extradition request was made on 21 May 2014. On 4 September 2015, the Minister for Justice issued a notice, pursuant to s 16 of the Extradition Act 1988 (Cth), directed to any magistrate or eligible Federal Circuit Court Judge stating that the request had been received. Shortly thereafter, a magistrate issued an extradition arrest warrant pursuant to s 12 of the Extradition Act. Mr Matson was, in due course, arrested under the warrant and remanded in custody under s 15(2) of the Extradition Act. A magistrate subsequently conducted proceedings under s 19 of the Extradition Act and, on 15 January 2016, determined that Mr Matson was eligible for surrender to the United States. The magistrate ordered that Mr Matson be committed to prison under s 19(9) of the Extradition Act to await surrender or release.

2    Mr Matson applied for a review of the magistrate’s order pursuant to s 21(1)(a) of the Extradition Act. That review application was heard by the primary judge on 28 July 2016 and dismissed on 21 October 2016. Mr Matson appealed the primary judge’s dismissal of his review application (QUD 844 of 2016).

3    Mr Matson also mounted a collateral challenge to his extradition. He filed an application pursuant to s 39B of the Judiciary Act 1903 (Cth) in which he sought to set aside both the Minister’s decision made pursuant to s 16 and the magistrate’s issue of the warrant under s 12 of the Extradition Act (QUD 569 of 2016). The magistrate filed a submitting appearance. On 21 February 2017, the Chief Justice issued a direction under s 20(1A) of the Federal Court of Australia Act 1976 (Cth) directing that the original jurisdiction of the Court in relation to the s 39B application be exercised by a Full Court. The application and Mr Matson’s appeal were heard together.

4    Mr Matson initially did not have the benefit of legal representation. Both his appeal and s 39B application contained many grounds and raised an array of issues, not all of which were easy to comprehend. Fortunately, the Registrar managed to arrange the provision of legal assistance by senior counsel acting pro bono publico. The result was that the issues were narrowed considerably.

5    The issue in the appeal was whether the primary judge erred in finding, contrary to Mr Matson’s contention, that the extradition request was properly supported by an affidavit, statement, or declaration “setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it” as required by s 19(2)(b) of the Extradition Act and paragraph (3)(c) of Article XI of the Treaty on Extradition between Australia and the United States of America that came into force on 8 May 1976, as amended by the Protocol done at Seoul on 4 September 1990. Mr Matson contended, in short, that the affidavit that accompanied the extradition request did not set forth reasonable grounds for believing that Mr Matson committed the offences the subject of the request. All other appeal grounds were formally abandoned.

6    The issue in the s 39B application concerned, in broad terms, what Mr Matson alleged was the egregious delay on the part of the United States in seeking his extradition. That delay, and the failure of the United States to provide an adequate explanation for it, amounted, in Mr Matson’s submission, to a “compelling case” of abuse of process or power. Mr Matson also submitted that, in exercising the power under s 16 of the Extradition Act, the Minister had a duty to protect the integrity of the extradition process by making inquiries as to the reasons for the delay. He contended that the Minister erred by not conducting those inquiries or, alternatively, erred in not taking the delay in to account.

7    For the reasons that follow, both the appeal and the s 39B application are dismissed with costs.

8    It should be noted that Mr Matson also sought leave to appeal from the judgment of the primary judge refusing him bail pending the hearing of his judicial review application (QUD 51 of 2017). That application was not pursued and may be taken to have been abandoned.

EXTRADITION – STATUTORY SCHEME

9    The statutory scheme in relation to the extradition of persons from Australia to extradition countries other than New Zealand involves four stages. This matter involves the first and third stages.

10    The first stage involves either an application on behalf of the extradition country to a magistrate or eligible Federal Circuit Court Judge for an extradition arrest warrant under s 12 of the Extradition Act, or the receipt by the Attorney-General of an extradition request from an extradition country.

11    Subsections 12(1) and (2) of the Extradition Act provide as follows.

12 Extradition arrest warrants

(1)    Where:

(a)    an application is made, in the statutory form, on behalf of an extradition country to a magistrate or eligible Federal Circuit Court Judge for the issue of a warrant for the arrest of a person; and

(b)    the magistrate or Judge is satisfied, on the basis of information given by affidavit, that the person is an extraditable person in relation to the extradition country;

the magistrate or Judge shall issue a warrant, in the statutory form, for the arrest of the person.

(2)    The magistrate or Judge shall forthwith send to the Attorney-General a report stating that the magistrate or Judge has issued the warrant, together with a copy of the affidavit.

12    Subsections 16(1) and (2) of the Extradition Act provide as follows:

16 Notice by Attorney-General

(1)    Where the Attorney-General receives an extradition request from an extradition country in relation to a person, the Attorney-General may, in his or her discretion, by notice in writing in the statutory form expressed to be directed to any magistrate or eligible Federal Circuit Court Judge, state that the request has been received.

Person must be extraditable person in relation to extradition country

(2)    The Attorney-General must not give the notice unless the Attorney-General is of the opinion that the person is an extraditable person in relation to the extradition country.

13    Mr Matson’s judicial review application primarily concerned the decision of the Minister, on behalf of the Attorney-General, to issue a notice under s 16 of the Extradition Act. While his application also referred to the issue of a s 12 warrant by the magistrate, his submissions were almost entirely directed to the Minister’s s 16 decision.

14    The second stage of the extradition process involves the arrest of the person and the consideration, pursuant to s 15 of the Extradition Act, of whether the person shall be remanded in custody or granted bail for such period or periods as may be necessary for proceedings under s 15A (waiver of extradition), s 18 (consent to surrender) or, relevant to this matter, s 19, being proceedings before a magistrate or eligible Federal Circuit Court Judge to determine whether the person is eligible for surrender.

15    The third stage relevant to this matter (putting to one side cases where the person waives extradition or consents to surrender) is the determination by a magistrate or eligible Federal Circuit Court Judge, pursuant to s 19 of the Extradition Act, of whether the person is eligible for surrender. Mr Matson’s appeal concerns a determination by a magistrate that Mr Matson was eligible for surrender under s 19.

16    Subsection 19(1) provides for the conduct of proceedings before a magistrate or eligible Federal Circuit Court Judge. Subsection 19(2) sets out the circumstances in which a person is eligible for surrender. It provides as follows:

(2)    For the purposes of subsection (1), 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 or Judge;

(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 or Judge of any other documents – those documents have been produced to the magistrate or Judge;

(c)    the magistrate or Judge 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 or Judge that there are substantial grounds for believing that there is an extradition objection in relation to the offence.

17    Subsection 19(3) provides the meaning of “supporting documents” for the purposes of s 19(2)(a). In cases where the person has not been convicted of the offence in the extradition country, the supporting documents include: a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence; a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and a duly authenticated statement in writing setting out the conduct constituting the offence.

18    It is important to note that, for the purpose of s 19(2)(b), the Extradition Act applies subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate or Federal Circuit Court Judge of any other documents. That is because Article XI of the Treaty, as amended by the Protocol, provides that requests for extradition must also be supported by a number of other documents. The operation of the relevant provisions of Article XI of the Treaty, and their interaction with the requirements in s 19 of the Extradition Act, is explained later.

19    Subsection 19(9) of the Extradition Act relevantly provides that where a magistrate or eligible Federal Circuit Court Judge determines that the person is eligible for surrender to the extradition country in relation to an extradition offence or offences, the magistrate or eligible Federal Circuit Court Judge must either commit the person to prison, or release the person on bail, to await surrender under a surrender warrant or temporary surrender warrant, or release under an order under s 22(5) of the Extradition Act.

20    Where the magistrate or eligible Federal Circuit Court Judge determines that a person is eligible for surrender and makes an order under s 19(9), the person may apply to this Court for a review of that order pursuant to s 21(1)(a) of the Extradition Act. That is what Mr Matson did.

21    The fourth stage, which has not been reached yet in Mr Matson’s case, involves a surrender determination by the Attorney-General under s 22 of the Extradition Act. It is unnecessary for present purposes to consider the terms of s 22 in any detail. It is sufficient to note that s 22(2) provides that the Attorney-General must determine whether the person “is to be surrendered” and s 22(3) provides that the person is only to be surrendered if the Attorney-General is satisfied of certain specified matters and, by virtue of paragraph (f), “the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence”.

22    As will be seen, it is open to the Attorney-General to have regard to a wide range of considerations at the s 22 stage including, relevantly, delay.

ARTICLE XI OF THE TREATY

23    Regulation 3 of the Extradition (United States of America) Regulations 1988 (Cth) declares the United States to be an extradition country. Regulation 4 of the Regulations provides that the Extradition Act applies to the United States subject to the Treaty, as amended by the Protocol. The Treaty is Schedule 1 to the Regulations and the Protocol is Schedule 2.

24    Relevantly, Article XI of the Treaty, as amended, provides 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 or who has been found guilty in his absence 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.

(4)    A request for extradition of a person who has been found guilty of the offence for which extradition is sought, other than a person who has been found guilty in his absence, shall also be supported by:

(a)    a copy of the judgment of conviction, if available, or a statement by a judicial authority that the person has been found guilty;

(b)    information establishing that the person sought is the person to whom the finding of guilt refers;

(c)    a copy of the sentence imposed, if the person has been sentenced, and a statement establishing to what extent the sentence has been carried out; and

(d)    if the person has been found guilty but no sentence has been imposed, a statement affirming that it is intended to impose a sentence.

(5)    The documents which accompany an extradition request shall be received and admitted as evidence in extradition proceedings if:

(a)    in the case of a request from the United States, they

(i)    purport to be signed or certified by a judge, magistrate, or officer in or of the United States; and

(ii)    purport to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal of the requesting State or of a Minister of State, or of a Department or officer of the Government of the requesting State;

(b)    in the case of a request from Australia, they are certified by the principal diplomatic or consular officer of the United States resident in Australia, as provided by the extradition laws of the United States; or

(c)    they are certified or authenticated in any other manner accepted by the law of the requested State.

25    In Todhunter v United States of America (1995) 57 FCR 70, the Full Court considered the operation of Article XI of the Treaty, and in particular paragraph (3)(c), and its interaction with s 19(2)(b) of the Act. The primary judge in that case had held that paragraph (3)(c) of Article XI required a description of facts providing reasonable grounds for believing that each element of the relevant United States offence for which extradition was sought had been committed. The primary judge rejected the submission that, when considering paragraph (3)(c) of Article XI, the magistrate, and the Court on review, was neither required nor permitted to consider the elements of the United States offences or whether the description of the facts gave rise to the offences charged in the United States. Rather, the primary judge held that, given the generality of the material constituting the description of the facts presented in the proceedings before the magistrate, the magistrate was unable to come to a reasonable belief that a number of the offences had been committed.

26    The primary judge’s construction of paragraph (3)(c) of Article XI was challenged on appeal in Todhunter. It appears to have been contended, in effect, that paragraph (3)(c) was concerned with satisfying the magistrate or Federal Circuit Court Judge of the “double criminality” requirement in s 19(2)(c) of the Extradition Act. It was argued that it was not for the magistrate or Federal Circuit Court Judge to determine whether the charges had been properly laid according to the law of the United States. The Full Court, however, upheld the primary judge’s construction of paragraph (3)(c). It held that paragraph (3)(c) of Article XI required “an affidavit, statement or declaration which gave a description of the facts and set forth reasonable grounds for believing that the person for whom the extradition was sought had in fact committed an offence under the applicable law of the United States”: Todhunter at p 90B.

27    In this matter, the United States made a “formal submission” that the decision in Todhunter concerning the construction of paragraph (3)(c) of Article XI was plainly wrong. It was pointed out, in that regard, that in Hermanowski v United States of America (2006) 149 FCR 93, the Full Court appeared to express some doubts about the correctness of that aspect of the decision in Todhunter. The Full Court in Hermanowski said (at [47]-[48]):

In considering the competing submissions, it will be necessary to deal with some general issues. It is to be noted first that the case has been conducted before this Court on the footing that the interplay between ss 11 and 19 of the Act and between s 19 of the Act and the Extradition (United States of America) Regulations (as amended) is settled by the decision in Todhunter appeal. We need not reproduce all of the analysis in that judgment. The most critical finding was that compliance with Art XI(3)(c) of the Treaty is an issue at the stage of proceedings before the magistrate by reason of s 19(2)(b), ie, that production of those documents to the magistrate “is required”. That finding is controversial. It required implication into the language of the Treaty. It also has an important, and somewhat anomalous, result when coupled with the further finding that Art XI(3)(c) is to be read as if the words are “an offence has been committed against the law of the requesting State” (emphasis added) – namely, that an Australian magistrate must determine effectively whether charges have been properly laid according to United States law. The consequence is that the Treaty provides for an additional barrier in s 19 proceedings that makes obtaining a determination of eligibility of surrender to the United States more difficult than extradition to many other countries where there is no such barrier, yet the United States has one of the most highly developed systems of criminal justice in the world. Comparison with, eg, the extradition regulations relating to the United Mexican States, the Republic of Indonesia and the Republic of the Philippines respectively makes the point. The same result would presumably apply to extradition to Australia.

Be that as it may, this case must be decided according to the decision in Todhunter appeal. On that basis, the document required by Art XI(3)(c) is clearly directed to establishing, in the case of a person who has been charged, that the charge was properly laid. Whatever difficulties there may be in construing that article, it bears similarity to some of the elements of reasonable and probable cause for prosecution according to Australian law (see the authorities collected in Ipp, DA, “Must a prosecutor believe that the accused is guilty? Or, was Sir Frederick Jordan being recalcitrant?” (2005) 79 ALJ 233) and “probable cause” in United States law (Cherif Bassiouni, M, International Extradition: United States Law and Practice, (4th ed, Oceana Publications Inc, 2002), Ch X, p 826). It also has some similarity to the statutory requirements for the issue of search warrants and like instruments (eg, George v Rockett (1990) 170 CLR 104). There is also an overlap between the provisions of s 19(2)(c) and (3)(c) of the Act, and there is a body of authority as to those provisions. An examination of those analogous situations may illuminate the present issue of construction.

28    This is not an appropriate case to consider whether Todhunter was correctly decided. That is so for a number of reasons.

29    First, the proceedings before the primary judge were conducted on the basis that Todhunter was correctly decided. The primary judge, of course, was bound by Todhunter, but no submission was made, formal or otherwise, concerning the correctness of the reasoning in Todhunter.

30    Second, the United States did not file a notice of contention, as would be required if it wanted to uphold the primary judge’s findings on some other basis, including that Todhunter was wrongly decided.

31    Third, the issue concerning the correctness of the decision in Todhunter was only briefly touched on in a footnote in the written submissions filed on behalf of the United States. No detailed submissions were advanced in support of what was said to be only a formal submission. One would expect detailed submissions to be made to overturn such a longstanding Full Court decision.

32    Fourth, Todhunter was decided over 10 years ago. The correctness of the construction of paragraph (3)(c) of Article XI arrived at in Todhunter has not been challenged in any of the cases involving extradition to the United States that have been decided since, including cases where paragraph (3)(c) of Article XI have been in issue. Nor, for that matter, has the Treaty been amended as it could have been if Australia and the United States agreed or believed that the construction of paragraph (3)(c) of Article XI in Todhunter was incorrect.

33    Fifth, the appeal can be decided in favour of the United States without the need to consider the correctness of Todhunter. It is thus unnecessary to confront or resolve the difficult issues concerning the construction of paragraph (3)(c) of Article XI of the Treaty.

34    As has already been noted, Mr Matson contended, both before the primary judge and in support of his appeal, that the supporting documents that were before the magistrate were not capable of satisfying the requirement in paragraph (3)(c) of Article XI of the Treaty. The question of what is required by the expression “reasonable grounds for believing that an offence has been committed” is considered later in the context of addressing Mr Matson’s appeal ground.

BACKGROUND FACTS

35    In the United States, a federal criminal prosecution is commenced when a grand jury files an indictment with the United States District Court. The clerk of the court, at the direction of a United States District Judge or Magistrate Judge, then normally issues a warrant for the defendant’s arrest.

36    On 26 October 2005, a grand jury sitting in the Middle District of Florida in the United States returned a fifteen-count indictment charging Mr Matson and others with various offences. Those offences were: one count of conspiracy to commit mail fraud and wire fraud, in violation of Title 18, United States Code, ss 371 and 2, carrying a maximum penalty of five years’ imprisonment; five counts of mail fraud, in violation of Title 18, United States Code, ss 1341 and 2, carrying a maximum penalty of twenty years’ imprisonment; and nine counts of wire fraud, in violation of Title 18, United States Code, ss 1343 and 2, carrying a maximum penalty of twenty years’ imprisonment. A warrant for the arrest of Mr Matson was signed on 26 October 2005.

37    On 21 December 2005, the grand jury returned a superseding indictment, which included, in addition to the fifteen counts in the original indictment, a sixteenth count. The sixteenth count was an offence of conspiracy to commit money laundering, in violation of Title 18, United States Code, s 1956(h), carrying a maximum penalty of twenty years’ imprisonment. A further warrant for the arrest of Mr Matson was signed on 21 December 2005. That warrant, however, included a “scrivener’s error”. New arrest warrants correcting that error were issued in November 2011.

38    As will be seen, Mr Matson’s judicial review application relies on alleged delay, including the delay by the United States authorities between the return of the indictments and the initial warrants, and the issuing of the relevant warrants almost six years later in November 2011.

39    The conduct the subject of the charges in the United States indictment and warrants occurred between 1997 and at least January 2001. It will be necessary to say something more in due course about the description of the conduct in the relevant supporting documents. It is sufficient for present purposes to set out the primary judge’s summary of the conduct (at [6] of the Judgment under appeal):

The allegations made by the USA are to the effect that between 1997 and 2000, Mr Matson, his father, Roger Matson and Gordon Robert Grant made false promises and representations to induce investors to invest in fraudulent schemes related to gambling on horse and greyhound racing. The schemes are alleged to have initially involved investors paying money for computer hardware and software known as the Professional Race Organizer Program (“the PRO Program”), which would allow investors to “generate a consistent cash income” and “successfully back every runner in every race”. It is alleged that after receiving large amounts of money from the investors for the PRO Program, investors were invited by the conspirators to invest in a new program, a Managed Accounts Program, which would “increase their opportunity for return”. Under this program the investors’ funds were to be pooled and the conspirators were to manage the wagering process. In 2000, investors were presented with an opportunity to invest up to $75,000 each to be used for wagering on the Melbourne Cup. The USA alleges that the conspirators then “vanished along with substantially all of the investors’ money”.

40    On 21 May 2014, the United States requested Mr Matson’s extradition from Australia to the United States. That request was supported by an affidavit sworn by an Assistant United States Attorney, Mr Jay G. Trezevant.

41    On 4 September 2015, the Minister signed a notice pursuant to s 16 of the Extradition Act stating that the extradition request had been received.

42    On 17 September 2015, a magistrate issued an extradition arrest warrant under s 12(1) of the Extradition Act. Mr Matson was, in due course, arrested and brought before a magistrate on 26 October 2015. He was remanded in custody under s 15(2) of the Extradition Act.

43    On 10 November 2015, the United States applied for proceedings to be conducted before a magistrate to determine whether Mr Matson was eligible for surrender pursuant to s 19 of the Extradition Act. Mr Matson advanced a number of arguments in support of his case that he was not eligible for surrender. Relevantly, he contended that the extradition request was not sufficiently supported by a description of the conduct constituting the offence and did not set forth reasonable grounds for believing that the extradition offences had been committed by Mr Matson. He argued that the facts set out in Mr Trezevant’s affidavit did not provide reasonable grounds for believing that Mr Matson acted with the required fraudulent design or intent. Rather, the facts were consistent with Mr Matson having acted as a mere “salesperson or promoter” without any intention of defrauding anybody. He submitted that the allegations in Mr Trezevant’s affidavit were too broad and unspecific to provide reasonable grounds for a belief that he committed the offences in the indictment.

44    The magistrate rejected Mr Matson’s contentions in that regard. His Honour found that Mr Trezevant’s affidavit provided reasonable grounds for believing that the offences in the indictment were committed by Mr Matson. His Honour also found that the other requirements in s 19(2) were met. It is worth noting that Mr Matson also advanced a number of other arguments before the magistrate, including arguments concerning delay. The magistrate found that those arguments fell outside the ambit of s 19 of the Extradition Act.

45    The magistrate determined that Mr Matson was eligible for surrender to the United States in relation to the extradition offences the subject of the request and ordered that he be committed to prison pursuant to s 19(9) of the Extradition Act to await surrender.

46    Mr Matson sought a review of the magistrate’s order pursuant to s 21(1)(a) of the Extradition Act. On 21 October 2016, the primary judge upheld the magistrate’s order and dismissed Mr Matson’s application.

THE REASONS OF THE PRIMARY JUDGE

47    Mr Matson did not have any legal representation in respect of his review application before the primary judge. It seems that he raised a number of arguments, including arguments that were not raised before the magistrate. Given that Mr Matson’s appeal is concerned with only one argument relating to the sufficiency of the supporting material, it is unnecessary to consider the other arguments advanced by Mr Matson before the primary judge, or the primary judge’s findings concerning them.

48    Consistent with the position that he had taken before the magistrate, Mr Matson contended that Mr Trezevant’s affidavit did not provide sufficient facts to ground a reasonable belief that he had committed the extradition offences. He contended that the affidavit provided only a “broad brush” picture and lacked specific allegations of dishonesty that were necessary to establish elements of the extradition offences. He submitted that the facts set out in Mr Trezevant’s affidavit were consistent with an alternative hypothesis of innocence or a defence that he worked as a promoter of a legitimate business.

49    The primary judge rejected Mr Matson’s arguments in that regard. His Honour found that the question for determination in relation to paragraph (3)(c) of Article XI of the Treaty was whether, assuming the facts presented in the affidavit to be correct, the facts provided reasonable grounds for believing that the extradition offences had been committed by Mr Matson. The fact that there was arguably an alternate hypothesis consistent with innocence, or a potential defence, “could not prevent the Magistrate from deciding that the facts provide reasonable grounds for believing that the offences were committed by Mr Matson”: Judgment at [70]. His Honour found that he could detect no error in the magistrate’s conclusion that Mr Trezevant’s affidavit provided sufficient facts to satisfy s 19(3)(c)(ii) of the Act and paragraphs (2)(b) and (3)(c) of Article XI of the Treaty: Judgment at [72].

The appeal

50    Mr Matson’s Notice of Appeal contained 19 grounds. It was filed before Mr Matson had legal representation. Senior counsel who appeared for Mr Matson pro bono at the hearing of the appeal quite properly pressed only grounds 10 and 11 of the Notice of Appeal. Those grounds were as follows:

10.    The primary Judge erred in concluding that the requirements of article XI(2)(d) of the Treaty are satisfied.

11.    The primary Judge erred in concluding that there is no error in the conclusion of the second respondent that Mr Trezevant’s affidavit provides sufficient facts to satisfy section 19(3)(c)(ii) of the Extradition Act and articles XI(2)(b) and (3)(c) of the Treaty.

51    It would appear from the submissions that were advanced on Mr Matson’s behalf, however, that only ground 11 was pursued. The remaining ground was abandoned.

Mr Matson’s submissions

52    The nub of the submissions advanced by Mr Matson in support of those grounds was that the description in Mr Trezevant’s affidavit of the conduct and facts that were said to constitute the offences failed to address knowledge of any dishonesty or fraud on the part of Mr Matson. It was submitted that it appeared to be uncontentious that Mr Matson’s father, and possibly another man, were the “prime movers” and that, given Mr Matson’s age and relationship with his father at the time of the alleged offences, “it is hardly surprising that Mr Matson’s role was a subordinate one”. In Mr Matson’s submission, the material before the magistrate did not provide any basis for supposing that Mr Matson was aware that the enterprise in which he was involved was a fraudulent one. In those circumstances, the material failed to satisfy the requirement in s 19(3)(c)(ii) of the Extradition Act and paragraph (2)(b) of Article XI of the Treaty because it did not set out the conduct constituting the offence. It also failed to satisfy paragraph (3)(c) of Article XI of the Treaty because the description of the facts did not set forth reasonable grounds for believing that Mr Matson committed the offences.

53    Mr Matson contended that the primary judge erred in finding (at Judgment [70]) that the fact that there was arguably an alternative hypothesis consistent with innocence, or a potential defence, did not prevent the magistrate from finding that the facts provided reasonable grounds for believing that he committed the offences. That amounted, in his submission, to a reversal of the onus of proof. The onus did not fall on him to advance an alternative hypothesis of innocence, or a defence that his actions were not fraudulent. Rather, the onus rested on the United States to identify facts which provided a reasonable basis for believing that he had the required “guilty knowledge”: relevantly, that he knew that the scheme that he was selling or promoting was dishonest or that the representations that were made to investors and prospective investors were false and fraudulent. Mr Matson contended that Mr Trezevant’s affidavit did not provide direct evidence of his guilty knowledge, or facts from which such guilty knowledge could be inferred.

The requirement in s 19(3)(c)(ii) of the Extradition Act

54    The relevant principles in relation to the requirement in s 19(3)(c)(ii) of the Extradition Act are well-settled. The statement of the conduct that is required for the purposes of s 19(3)(c)(ii) must “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”: Truong v The Queen (2004) 223 CLR 122; (2004) 78 ALJR 473 at [29]. A bare statement of the offence will not suffice: De Bruyn v Republic of South Africa (1999) 96 FCR 290 at [8]; McDade v United Kingdom [1999] FCA 1868 at [16]. The statement must speak with “sufficient specificity, clarity and coherence to serve its purpose”: Griffiths v United States of America (2005) 143 FCR 182 at [52]. The requirement will not be met if the statement is “so vague and general or so disorganised that the relevant acts and omissions cannot be reasonably identified”: McDade at [17]. Whether a statement satisfies the requirement is essentially “a matter for practical judgment and assessment, not for over zealousness in discerning deficiencies”: Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 294.

55    The requirement in s 19(3)(c)(ii) is for all intents and purposes the same as the requirement in paragraph (2)(b) of Article XI of the Treaty.

56    Mr Trezevant’s affidavit plainly contained a description of the conduct constituting the offences which went well beyond a formal statement of the elements of the offence, or a bare statement of the offence. The only respect in which Mr Trezevant’s affidavit was said by Mr Matson to be vague or general, or to lack clarity or coherence, was that it failed to address Mr Matson’s knowledge of the fraudulent or dishonest nature of the enterprise in which he was involved.

The requirement in paragraph (3)(c) of Article XI of the Treaty

57    The requirement in paragraph (3)(c) of Article XI of the Treaty has received some judicial attention. As noted earlier, in Todhunter it was held that this paragraph of the Treaty required an affidavit, statement or declaration which gave a description of the facts and set forth reasonable grounds for believing that the person for whom the extradition was sought had in fact committed an offence under the applicable law of the United States.

58    The description of the facts sufficient to establish reasonable grounds for believing that the person whose extradition is sought committed an offence or offences may fall well short of what would be required to be tendered to prove a prima facie case: Hermanowski at [58], [60] and [61]. The description of the facts may include the state of the investigations conducted to that time, but does not need to descend to the detail of how the facts will be proven: Hermanowski at [58] and [60]; Ngo v United States of America (2009) 177 FCR 411 at [56] and [58]. It is not necessary to identify the intended witnesses, or their availability to give evidence, or what their evidence will be; nor is it necessary to disclose material from which an assessment may be made of the quality of the evidence to be called to prove the facts described: Hermanowski at [62]. What is required is a description of the facts that will provide “an inclination of the mind towards the proposition that the relevant offences have been committed and that the [person whose extradition is sought] committed them”: Hermanowski at [61].

59    To satisfy paragraph (3)(c) of Article XI of the Treaty, it is not necessary to set out facts which establish on the balance of probabilities that the person whose extradition is sought committed the relevant offences. In George v Rockett (1990) 170 CLR 104, the High Court said the following in relation to the requirement that there be reasonable grounds to believe or suspect, albeit in a different statutory context (at 112):

When a statute prescribes that there must be “reasonable grounds” for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.

…

60    The High Court went on to distinguish between the facts or objective circumstances that may be sufficient to induce a belief, as opposed to a suspicion, and said (at 116):

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.

61    In Jacobi v United States of America [1996] FCA 962, Kiefel J said the following in relation to the requirement of paragraph (3)(c) of Article XI of the Treaty (at 9):

A belief may then be held without addressing all of the questions which might arise when reading a narrative of events. It may be compared with an approach which requires the resolution of those matters to reach the requisite level of satisfaction to either a civil or criminal standard of proof. Nevertheless that does not mean that a narrative of events provided, as the description of facts required by the Article, must be taken at its highest or that questions which, as a matter of commonsense, arise with respect to the story put forward are to be shut out from consideration. It may be that a statement of the facts is in its detail so general and unspecific, so confusing or apparently unreliable, that it could not be said to be arrived at by a basis in reason. Although lacking the requirement of proof one must be able to reason towards the belief. So whilst there may remain some element of surmise or conjecture, if the deficiencies in the factual outline are too great, the test will not be satisfied.

Did Mr Trezevant’s affidavit satisfy the relevant requirements?

62    It is not correct, as contended by Mr Matson, that Mr Trezevant’s affidavit does not address knowledge of dishonesty on the part of Mr Matson. In his affidavit, Mr Trezevant identified each of the elements of each of the offences in the indictment. Each of the offences involved an element concerning Mr Matson’s state of mind.

63    The conspiracy to commit mail and wire fraud count included an element that Mr Matson knew the unlawful purpose of the plan to commit the offence of mail and wire fraud. The mail fraud counts included elements that Mr Matson knowingly devised or participated in a scheme to defraud someone, or to obtain money or property, using false or fraudulent pretences, representations or promises; that the false or fraudulent pretences, representations or promises were about a material fact; and that Mr Matson intended to defraud someone. The wire fraud counts included the same or similar elements concerning Mr Matson’s state of mind. The conspiracy to commit money laundering count included an element that Mr Matson knew the unlawful purpose of the plan to launder money and wilfully joined in it, or knew that the money or property involved in the relevant financial transaction was proceeds of some kind of unlawful activity.

64    Mr Trezevant deposed that each of the elements of each of the offences would be “shown at trial”. It is clear, therefore that Mr Trezevant believed that the evidence would establish guilty knowledge or intent on the part of Mr Matson. Mr Trezevant also summarised, albeit in brief terms, what the evidence would establish in relation to each of the counts. He also summarised the facts concerning the alleged “scheme”. The scheme is described in the following terms in paragraphs 33 to 43 of Mr Trezevant’s affidavit:

33.    From in or about the fall of 1999, and continuing through the early part of 2000, a number of persons residing in Florida, Georgia, Tennessee, Texas, Ohio, and other states, received a letter proposal and a brochure via Federal Express Priority Overnight mail from an individual who identified himself as “Roger Bronstein, Specialist Computer Programmer,” on behalf of a company identified as Ascot Bloodstock, Inc.

34.    Generally, the letter proposal indicated that Roger Bronstein was a self-made multi-millionaire who had discovered a method through which a person could earn great sums of money working approximately 10 hours per week. In pertinent part, the letter proposal stated:

I am giving you an opportunity to share in the success of a business I have built from the ground-up. If this opportunity greatly interests you, I will be happy to fly you to my private Villa on St. Martin, in the Caribbean, at my expense, so that you can evaluate the proposal for yourself.

This is no ordinary business:

-    Over recent years I have invested less than $50,000 annually into my business, but on average it now produces a global income in excess of $1,000,000 per annum.

-    I work approximately 10 hours per week (earning an average of $2,000 per hour!) year after year.

-    Until retired about 24 months ago, I operated this business alone, without staff, stock, or specialised “management”.

***

I am now prepared to share my expertise and my Professional Race Organizer Program with you on a license fee/royalty basis.

***

P.R.O. has the potential to comfortably add $200,000 to your annual income. I’m assuming that you start with an investment bank of just $5,000, and that you initially invest ten hours a week with your part time business. I am also assuming that you have absolutely no knowledge of the racing industry. Subject to certain conditions, this income will be tax free.

As your understanding of P.R.O. (and your investment bank) increases, your income will grow exponentially. It would be quite realistic for you to aim for a million dollar income in your third or fourth year of this part time business.

Here is the outline of my proposal.

If the idea of investing a few hours a week to add at least $200,000 to your annual income interests you, please call our live [24 hr. 7 days] answering service on toll free 1 877 999 9893. Simply leave your full name and mailing address and request a copy of the P.R.O. Report to be couriered to you. This comprehensive document presents some important facts and figures for your consideration.

After due consideration of the Report, you may proceed to the next step and we will arrange a fully paid round trip airline [Business class] ticket to St. Martin, for you to meet with my son, Baron, who personally trains all P.R.O. licensees. This will allow you the opportunity to familiarize yourself with P.R.O. Baron will put the Program through its paces and take you through a comprehensive training session that will allow you to access the consistency and international profitability of P.R.O. for yourself. In addition to this you will have the opportunity to experience first hand the lifestyle that P.R.O. has provided for my family and myself.

Your investment in the P.R.O. Program is dependent upon your choice from the schedule appearing at the end of this letter. For this you will receive the complete P.R.O. Computer Package (hardware and software license), and thorough personal coaching based on the knowledge and experience I have accumulated in my years in the Computer Racing Industry. It will also be necessary for you to set aside an investment bank of about $5,000.

35.    A glossy brochure setting forth the specific details of the P.R.O. Computer Package was included with the letter proposal. The brochure included the following claims:

The Professional Race Organizer Program (P.R.O.) is a purpose-built hardware/software package that offers the international businessman and professional person the potential to earn consistent profits from thoroughbred, harness and greyhound racing, in an objective and precise manner.

P.R.O. makes it possible to generate a consistent cash income from race meetings anywhere in the world. The operator uses an ingeniously programmed palm-top computer to successfully back every runner in every race!

***

In allowing the operator to effectively back the whole field, the P.R.O. Program’s copyrighted algorithms completely eliminate this risk. Indeed, the greatest challenge for the P.R.O. investor is simply to control greed and stick to P.R.O.’s strict operational guidelines.

36.    In the initial documents and in subsequent meetings with BARON MATSON/BRONSTEIN, who identified himself as “Baron Bronstein,” son of Roger Bronstein, and who was sometimes in the company of the person he referred to as Roger Bronstein (also referred to herein as ROGER MATSON/BRONSTEIN), the solicited persons were offered an opportunity to participate in the P.R.O. Program based upon a cash investment fee of $45,000, $90,000, or $135,000, together with royalty fees on any profits from the first five years of operation of 15%, 10%, or 5%, respectively, based upon the initial level of investment. As set forth above, the solicited persons were told that, should they be interested in investing in the P.R.O. Program, they would be flown to Roger Bronstein’s private villa on St. Martin in the Caribbean, at Roger Bronstein’s expense, so that they could better evaluate the proposal.

37.    A number of persons accepted the offer and traveled at no personal expense to St. Martin and/or Freeport or Nassau, Bahamas, where they typically first met BARON MATSON/BRONSTEIN. Many of the persons also had telephonic contact with an individual who identified himself as “Gordon Grant,” and who claimed to be working with Baron Bronstein (BARON MATSON/BRONSTEIN) and his father, Roger Bronstein (ROGER MATSON/BRONSTEIN). At times, Grant told some investors that he was a successful licensee participating in the P.R.O. Program.

38.    Upon meeting with BARON MATSON/BRONSTEIN, the potential investors were provided with a “live” demonstration of the P.R.O. Program wherein a device referred to as a P.R.O., or Professional Race Organizer, was used to determine wagers to be placed on horse races in Australia via the Internet. Sometimes, BARON MATSON/BRONSTEIN represented to the potential investors that wagers were placed through one or more accounts established with the Totalizator Agency Board of New South Wales (“TAB”), in Australia. The majority of the investors’ interactions were with BARON MATSON/BRONSTEIN.

39.    TAB is an Australian-based provider of services enabling wagering and gaming on sporting events approved as sports betting events under Australian law, such as thoroughbred, harness, and greyhound racing. Through a TAB service called RaceTAB, customers are offered both on-course and off-course totalizator wagering services. Likewise, TAB offers a service referred to as SportsTAB, whereby fixed-odds sports wagering on domestic and international sports is possible. On occasion, TAB accounts were established by BARON MATSON/BRONSTEIN for the potential investors.

40.    The potential investors were told that by using the P.R.O. and following the protocol established by the Bronsteins, it would be possible “to generate a consistent cash income from race meetings anywhere in the world.” The investors usually paid fees, or made additional investments, in large cash payments or by electronic fund transfers to accounts located outside the United States, in accordance with wiring instructions provided by BARON MATSON/BRONSTEIN or Gordon Grant. The cash payments were usually collected in the United States by BARON MATSON/BRONSTEIN, or by a woman who identified herself as “Melinda Bronstein” or “Matilda Bronstein.”

41.    Shortly after most of the investors had accepted the letter proposal and paid the aforementioned up-front cash licensing fee, they were informed by BARON MATSON/BRONSTEIN that he had initiated a new program, referred to as the Managed Account Program. The investors were told that the Managed Account Program would alleviate the sometimes cumbersome task of operating the P.R.O., and increase their opportunities for return. The investors were told that Baron Bronstein (BARON MATSON/BRONSTEIN) and Roger Bronstein (ROGER MATSON/BRONSTEIN), acting through Ascot Bloodstock, Inc., and/or Cycle International, Ltd., would operate the Managed Account Program by pooling the investors’ funds and managing the wagering process. The investors were also told that the Managed Account Program would allow them to collect a return on their investments of approximately seven to nine percent (7-9%) per month. The promised rate of return was generally based upon the initial royalty fee arrangement. Thus, investors who chose to participate in the Managed Account Program were promised that based upon their initial fee of $45,000, $90,000, or $135,000, they would receive 7%, 8%, or 9% return per month, respectively. Ultimately, substantially all of the investors elected to participate in the Managed Account Program, rather than the P.R.O. Program.

42.    In addition, BARON MATSON/BRONSTEIN occasionally offered to increase the percentage of some of the investors’ monthly returns if they increased their investment, promised not to remove any of their investment from the wagering pool, or offered to assist him in some fashion in his operations. For example, an investor named Wayne Walton routinely assisted BARON MATSON/BRONSTEIN in coordinating social functions to update the investors as to the purported status of their accounts, and to encourage additional investing. For his efforts and expenses associated with hosting and coordinating the social functions, Wayne Walton’s purported return on his investment was increased from 7% to 10%. All of the investors received monthly account statements, typically through the mail, from Ascot Bloodstock, Inc., and/or Cycle International, Ltd., which purported to give the investors detailed financial information concerning their accounts, such as total amounts invested and earned.

43.    In or around the early fall of 2000, the investors were presented with yet a new opportunity to invest up to $75,000 each, which, they were informed, would be used to place a wager on the Melbourne Cup horse race that would potentially earn them an ample return. The investors were ensured by BARON MATSON/BRONSTEIN that the new $75,000 investment was “guaranteed” and would be returned to the investors shortly after the race, regardless of the outcome of the race, and that any profits from the Melbourne Cup transaction would be paid out to the investors shortly thereafter. However, shortly after the Melbourne Cup horse race, BARON MATSON/BRONSTEIN, Gordon Grant, and ROGER MATSON/BRONSTEIN vanished, along with substantially all of the investors’ money. The $75,000 guaranteed investment purportedly used to wager on the Melbourne Cup horse race has never been returned to the investors, nor have the investors received any of the promised returns on their investments, other than perhaps a few nominal payouts during the earlier stages of the scheme.

(Footnotes omitted.)

65    Mr Trezevant’s affidavit also detailed certain facts relevant to two specific investors by way of example. Those facts suggested that Mr Matson was the investors’ main point of contact. It was Mr Matson who made a number of the false and fraudulent representations to the investors.

66    Mr Trezevant deposed that the evidence would establish the following facts concerning the conspiracy to commit mail and wire fraud:

17.    ... This evidence will establish that beginning in or about the Fall of 1997, and continuing through at least January 2001, BARON MATSON/BRONSTEIN, together with Roger Matson, a/k/a Roger Bronstein (sometimes referred to herein as “ROGER MATSON/BRONSTEIN”), and Gordon Robert Grant created and sent various proposal documents to individuals in the Middle District of Florida and elsewhere that contained false and fraudulent statements, promises, and representations in order to lure the individuals into investing in one or more fraudulent schemes called the Professional Race Organizer Program, the Managed Account program, and the Melbourne Cup program. The false and fraudulent statements, promises, and representations made to the investors included, among others, false assertions about the wealth and historical financial successes of Roger Bronstein and others from participating in one or more of the offered programs, as well as false assertions concerning the profits that would be and were being earned from the programs. In orchestrating the scheme, BARON MATSON/BRONSTEIN and others utilized the U.S. mails or private or commercial interstate carriers to send proposal documents and account information to potential and current investors. Further, in orchestrating the scheme, BARON MATSON/BRONSTEIN and others also caused wire transfers of funds to occur in interstate and foreign commerce.

67    In relation to the mail fraud counts, Mr Trezevant deposed that the evidence would establish that “each of the identified investors received a summary document through the mails in or around November 2001, purporting to bear information about the investor’s Managed Account activity, which was false and fraudulent”.

68    Similarly, in relation to the wire fraud counts, Mr Trezevant deposed that the evidence would establish that each of the investors “wire transferred funds (ranging from $25,000 to $135,000) in foreign commerce, or from banks in the United States to banks in other countries, based upon the false and fraudulent information provided to the investors by BARON MATSON/BRONSTEIN or one of the other named individuals participating in the scheme and artifice to defraud”.

69    In relation to the conspiracy to money launder count, Mr Trezevant deposed that the evidence would establish the following:

28.    …This evidence will establish that BARON MATSON/BRONSTEIN or one of the other conspirators caused bank accounts to be opened inside and outside of the United States of America including, but not limited to, bank accounts opened in the name of ASCOT BLOODSTOCK and of CYCLE INTERNATIONAL LTD, sometimes identified as CYCLE INTERNATIONAL LTD trading as Fletcher International Corporation. In addition, BARON MATSON/BRONSTEIN or one of the other conspirators obtained funds of varying amounts, including amounts in excess of $10,000, from victim-investors of the mail and wire fraud schemes in different forms, including cash, checks, certified checks and wire transfers of funds, and caused the funds to be deposited in bank accounts controlled by the conspirators. Further, after the proceedings of the mail and wire fraud schemes were deposited into bank accounts controlled by the conspirators, the proceeds were thereafter – often in an amount in excess of $10,000 – withdrawn by one or more of the conspirators or transferred to an account or accounts controlled by one or more of the conspirators with the intent to promote the carrying on of the schemes.

70    Mr Trezevant’s affidavit also stated that Mr Matson used a number of different names, including Baron Bronstein, Philip Fletcher and Lincoln Robert Marshall. He had passports in the names of Baron Matson and Philip Fletcher.

71    It may be accepted that the facts and evidence outlined in Mr Trezevant’s affidavit do not directly or expressly assert that Mr Matson knew that the scheme was fraudulent, or knew that representations made to the investors were false. That said, when it comes to proving that an accused person knew that representations were false, or knew that a scheme was fraudulent, it is frequently necessary to resort to circumstantial evidence. Prosecution cases concerning fraud and dishonesty frequently rely on inferences that can be drawn from all the surrounding facts and circumstances, including the extent of the accused’s involvement in the scheme and the making of the representations. The case against Mr Matson is no exception.

72    The question then is whether the facts and circumstances outlined in Mr Trezevant’s affidavit are such as to incline the mind towards assenting to, rather than rejecting, the proposition that Mr Matson knew the scheme to be fraudulent, and knew that certain of the representations that were made to investors were false. That inclination of the mind may be based on inferences that might be drawn from the overall facts and circumstances of the scheme and Mr Matson’s involvement in it.

73    When close regard is given to Mr Trezevant’s outline of the facts and evidence, it is tolerably clear that the facts are capable of inclining the mind towards accepting that Mr Matson knew that the scheme was fraudulent and that the representations that were made to the investors were false. The facts concerning the nature of the scheme, the nature of the representations made pursuant to the scheme, Mr Matson’s involvement in the scheme and the making of the representations and other surrounding facts and circumstances are sufficient, by reason of inferences that might be drawn from those facts and circumstances, to support a belief that Mr Matson knew the scheme was fraudulent and representations that were made as part of the scheme were false.

74    The facts include, for example, that Mr Matson told investors that the new $75,000 “investment” which related to the 2000 Melbourne Cup was “guaranteed” and would be returned to investors shortly after the race, regardless of the outcome of the race. It is difficult to accept that Mr Matson genuinely believed that it was possible to guarantee a return from a horse race. In any event, despite the representation of a guaranteed return shortly after the race, Mr Matson, his father and Mr Gordon Grant “vanished, along with substantially all of the investors’ money”. In criminal proceedings in Australia, and presumably in the United States, evidence of a defendant taking flight apparently to avoid apprehension is a well-established basis for inferring consciousness of guilt, including, in particular, to state of mind elements of an offence. In a case such as this, a jury would be entitled to treat such evidence as constituting significant evidence of, at least, lack of a bona fide belief in the genuineness of the schemes deployed. Any innocent explanation for such flight is a matter for trial, not for extradition, except perhaps at the s 22 stage.

75    Inferences may also be able to be drawn from the fact that Mr Matson identified himself as “Baron Bronstein” to the investors, yet he held passports in the names of Baron Matson and Philip Fletcher.

76    It should also be noted in this context that Mr Matson’s submission that his father was the “prime mover” and that he was a mere salesman or promoter is not reflected in the facts set out in Mr Trezevant’s affidavit. Those propositions were certainly not uncontentious, as suggested by Mr Matson. It would appear that the scheme involved holding Mr Matson’s father out as the self-made millionaire who had devised the computer program that was supposed to earn investors great sums of money. It does not follow that Mr Matson’s father was in fact the “prime mover”. It would also appear that the investors primarily interacted with Mr Matson. It does not follow, however, that he was a mere promoter or salesman. But even if he was, that is a matter for the jury, not extradition.

77    It follows that it was open, in all the circumstances, for both the magistrate and the primary judge to find that Mr Trezevant’s affidavit satisfied the requirements in s 19(3)(c)(ii) and paragraphs (2)(b) and (3)(c) of Article XI of the Treaty. The affidavit contained a description of the conduct constituting the offences. The statement of facts also set forth reasonable grounds for believing that the offences were committed and that Mr Matson was one of the offenders who committed them.

78    It also follows that the primary judge did not err in determining that the relevant requirements of the Extradition Act and Treaty had been satisfied. A fair reading of the primary judge’s reasons reveals that his Honour did not err by reversing the onus of proof as contended by Mr Matson. It is tolerably clear that when the primary judge referred, in paragraph 70 of the Judgment, to the availability of a defence or the existence of an alternative hypothesis consistent with innocence, his Honour was merely responding to the particular way that Mr Matson had put his case. So much so was conceded by Mr Matson in his submissions on appeal. More significantly, it is abundantly clear from the preceding paragraphs of the primary judge’s reasons, in particular paragraphs 62 to 69, that his Honour addressed the correct question, being whether Mr Trezevant’s affidavit contained a description of the facts of conduct which showed that there were reasonable grounds for believing that Mr Matson had committed the offences, and found that the affidavit did satisfy the relevant requirements. There was no error in the approach taken by his Honour.

Conclusion in relation to the appeal

79    Mr Matson failed to demonstrate that the primary judge erred in concluding that Mr Trezevant’s affidavit provided sufficient facts to satisfy s 19(3)(c)(ii) and paragraphs (2)(b) and (3)(c) of Article XI of the Treaty. The other grounds of appeal were not pressed and formally withdrawn. The appeal must accordingly be dismissed.

THE JUDICIAL REVIEW APPLICATION

80    As has already been noted, Mr Matson’s judicial review application challenged the Minister’s decision, pursuant to s 16 of the Extradition Act, to give notice in the statutory form to any magistrate or eligible Federal Circuit Court Judge, that an extradition request in respect of Mr Matson had been received. The originating application filed by Mr Matson, at a time that he was not legally represented, sets out five grounds of review. It is unnecessary to set them out. None of them were pressed.

81    In his written submissions, Mr Matson couched the sole ground of challenge to the Minister’s decision under s 16 as being, in effect, that the Minister should not have given the notice because there was a “compelling case” of an abuse of process, or fraud on the extradition power, by reason of egregious delay on the part of the prosecution authorities, a lack of candour or obfuscation in explaining that delay and prejudice to Mr Matson flowing from that delay. In the course of his oral submissions, Mr Matson put his ground of review in somewhat different terms. The ground was said to be that, in circumstances where, on the face of the extradition application, there was significant and unexplained delay, the Minister’s duty included a duty to protect the integrity of the extradition process by making inquiries as to the reasons for the delay.

82    In support of his application, Mr Matson sought to adduce evidence relating to the delay. That evidence, which was primarily documentary, related to the delay. It was not material that was before the Minister. The Minister objected to the tender of the evidence on the basis that it was irrelevant, primarily because it was not before him at the time he made the decision, but also on the basis that it was in any event not relevant to the exercise of his discretion under s 16 of the Extradition Act. The Court reserved the question of the admissibility of the evidence. As will be seen, having regard to the applicable principles concerning the Minister’s discretion and duties at the s 16 stage of the extradition process, the evidence sought to be relied on by Mr Matson was, and is, irrelevant and its tender must be rejected.

83    It may perhaps be accepted that there was an element of delay apparent from Mr Trezevant’s affidavit. The first period of delay was the period between the alleged offending conduct and the commencement of the criminal prosecution. The conduct the subject of the alleged offences occurred during the period 1997 to 2001. The grand jury did not return an indictment until October 2005. Given the nature of the alleged offences, however, a four year investigation period could not necessarily be considered to be an unreasonable delay, let alone an egregious delay.

84    The second period of delay was the period between the commencement of the prosecution, the issuing of warrants and the request for extradition from Australia. The prosecution was commenced in October and December 2005, when the grand jury returned the initial and superseding indictment. There was then a delay of almost six years before new arrest warrants were issued in November 2011, apparently to correct an error. There was then a further delay of almost three years before the United States sought Mr Matson’s extradition from Australia.

85    While the delay between the commencement of the prosecution and the request for extradition from Australia was significant, Mr Trezevant’s affidavit does provide some explanations for that delay.

86    First, in his affidavit, Mr Trezevant stated that Mr Matson “vanished” after the running of the Melbourne Cup towards the end of 2000. He also stated that each of the defendants relocated to areas unknown to the law enforcement agencies shortly after the conclusion of the offending conduct. Thus, the authorities were unable to locate, and therefore unable to interview, the defendants, including Mr Matson, for some period of time.

87    Second, in July 2008, Mr Grant was apprehended and subsequently entered into a plea agreement which involved cooperating with the investigation and giving evidence against his alleged co-offenders. That would no doubt have reinvigorated the investigation.

88    Third, Mr Trezevant stated that in September 2011, the investigation determined that Mr Matson was residing at an address in Queensland. It may perhaps be inferred that it was the discovery of Mr Matson’s residential address in September 2011 that led to the issue of the further warrants a few months later in November 2011.

89    While it may be accepted that Mr Trezevant’s explanation of the delay is by no means a detailed or direct explanation, it is nonetheless difficult to accept Mr Matson’s contention that the delays apparent on the face of the extradition request were egregious and unexplained. The alleged offences were no doubt complex and the investigation extensive. The whereabouts of the defendants was unknown, itself a factor necessarily contributing to delay.

90    There is also no basis for Mr Matson’s contention that there was a lack of candour, or obfuscation, on the part of the United States in explaining the delay. As has been said, while it might perhaps be accepted that Mr Trezevant’s affidavit did not provide much detail in relation to the reasons or explanation for the delay, there was no relevant lack of candour or obfuscation.

91    Mr Matson’s submission that there was a “compelling case” of abuse of process or fraud on the extradition power must also be rejected. The basis for that submission was the delay and obfuscation. Given the delay was not egregious and not entirely unexplained, and there was no lack of candour or obfuscation, it must follow that there was no abuse of process.

92    In any event, Mr Matson’s challenge to the Minister’s decision under s 16 fails at a more fundamental level. That is because it is tolerably clear that issues concerning delay on the part of the country seeking extradition have little, if any, role to play at the s 16 stage of the extradition process. Nor is the Minister under any duty at the s 16 stage to investigate issues such as delay, or indeed any other issues that fall outside the matters that must be considered at the s 16 stage. Those matters are, essentially, whether an extradition request has been received from an extradition country, and whether the person whose extradition is sought is an extraditable person in relation to the extradition country. Matters such as delay are issues for consideration at later stages of the process.

93    In Foster v Attorney-General (1997) 97 A Crim R 560, Cooper J said as follows in relation to the Minister’s exercise of discretion under s 16 of the Extradition Act (at 575):

The function performed under s 16 of the Act is to condition the extradition process on the opinion of the Attorney-General in respect of three matters. The first is that the person against whom extradition is sought is an extraditable person (as defined in s 6) in relation to the extradition country: s 16(2)(a)(i). The second is that the conduct constituting the extradition offence satisfies the test of dual criminality: s 16(2)(a)(ii). The third is that no extradition objection exists: s 16(2)(b).

If those conditions are met, then the objective of the Act and the structure of the statutory scheme is that the process proceed to the next stage consequent upon the issue of the s 16 notice. A decision not to issue the notice for a reason other than non-satisfaction of one or more of the three conditions involves a discretionary decision to terminate the process which otherwise would proceed to the next stage. The residuary discretion in s 16 is only confined by the subject, scope and purpose of the Act: Peko-Wallsend at 41. The Act in s 22(3)(f) requires that the Attorney-General consider a person should be surrendered in relation to the qualifying extradition offence before a decision to surrender is made. This requirement opens up for consideration at the final stage of the extradition process all matters which are relevant to the exercise of a general discretion to refuse to surrender, notwithstanding that the person is otherwise an eligible person in respect of a qualifying extradition offence. It follows, in my view, that the residuary discretion under s 16 is limited to a consideration of factors relevant to an early termination of the extradition process in a peremptory way after issue of a provisional warrant, irrespective of whether or not an arrest has occurred. Ordinarily matters which would go to the exercise of the discretion under s 22(3)(f) are not relevant or properly reviewable at the s 16 stage of the process. Such an approach is, in my view, consistent with the reasoning in Harris v A-G (Cth) at 412-413.

The discretion which the Attorney-General exercises under s 16 is limited to the question of whether the extradition process should proceed. To the extent that there is any duty to make inquiry, that duty is limited to the three matters in respect of which the Attorney-General must hold an opinion before giving the notice. There is no duty to make inquiries as to matters which may go to a residual general discretion not to issue the notice.

…

94    As noted earlier, Mr Matson sought to adduce evidence that, in his submission, bore on the issue of delay. The evidence concerned matters that were not before the Minister at the s 16 stage. Mr Matson submitted that the evidence was relevant because, given the delay apparent from Mr Trezevant’s affidavit, the Minister had a duty to make inquiries as to the reasons for the delay. Had the Minister made the appropriate inquiries, he would have discovered the facts and circumstances the subject of the evidence. Mr Matson accepted, however, that for the evidence to be admissible on that basis, he would have to demonstrate that the decision in Foster was plainly wrong and should not be followed. The difficulty for Mr Matson is that the decision in Foster cannot be said to be plainly wrong. Indeed, it is plainly right. It follows that the evidence he sought to tender is irrelevant and therefore not admitted.

95    It should also perhaps be noted that, even if the Minister was under some duty to make inquiries into any delay by the United States, there is no evidence that he did not make those inquiries. Nor is that an available inference. Mr Matson bore the onus in relation to his judicial review application. He failed to discharge that onus in relation to the allegation that the Minister failed to inquire into delay.

96    As for abuse of process, Mr Matson relied on the decisions in Forrest v Kelly (1992) 34 FCR 74 and Bou-Simon v Attorney-General (2000) 96 FCR 325; [2000] FCA 24. Neither case, however, supports the proposition that the Court can intervene to stay or terminate the extradition process at the s 16 stage on the basis of a contention that delay on the part of the requesting country amounted to an abuse of process.

97    In Forrest, the Full Court said no more than that the Minister may decline extradition at the s 22 stage for any reason which he or she thinks appropriate, including delay. If anything, Forrest shows that Mr Matson’s challenge to his extradition on the basis of delay is premature. The appropriate course would be for him to make submissions to the Minister at the s 22 stage.

98    Bou-Simon was a case which concerned a request by Australia for the extradition of Mr Bou-Simon from France. It was contended that an Australian official had made misleading statements to a French court. It was held that the conduct could not amount to an abuse of process unless it involved bad faith or a deliberate attempt by Australian authorities to mislead the French court. In this case, Mr Matson did not suggest, let alone prove, that there was any bad faith on the part of the United States authorities, or that there was any attempt to deliberately mislead this or any other court. Bou-Simon is plainly distinguishable.

99    In any event, the weight of authority suggests that neither the magistrate, nor this Court on review, has the power under the Extradition Act to stay an extradition proceeding on the basis of an abuse of process: Papazoglou v Republic of the Philippines (1997) 74 FCR 108 at 138-139. Nor can s 39B of the Judiciary Act be invoked as a basis for staying or terminating the extradition process on the basis of an abuse of process: Cabal v United Mexican States (2001) 108 FCR 311 at [304]. In Cabal, which involved an extradition request from Mexico, the Full Court said (at [305]):

If it should ultimately prove to be the case that the Mexican Government has deliberately failed to disclose material to the magistrate which ought to have been disclosed, and thereby misled both the magistrate and the learned primary judge on review, that would be a most serious matter. It would, however, be a matter which, under s 22 of the Act, may be taken into account by the Attorney-General in deciding whether to exercise his discretion to permit Mr Cabal and Mr Pasini to be surrendered. Reserving this matter to the Attorney-General (whose decision may itself be subject to judicial review under s 39B) is a course which accords with the reasoning of the Full Court in Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 412-413.

100    That would again suggest that, even if any delay on the part of the United States in seeking Mr Matson’s extradition, or any lack of candour or obfuscation in explaining that delay, was capable of amounting to an abuse of process, those are matters that are more properly considered by the Minister at the s 22 stage, not at the s 16 stage.

101    Finally, it should also be noted in this context that even if Mr Matson’s arguments concerning delay and abuse of process had any merit, the Court should nonetheless be reluctant to intervene at the s 16 stage of the extradition process on the basis of a judicial review application. In Harris v Attorney-General (Cth) (1994) 52 FCR 386, the Full Court noted (at 413C) that there were “sound reasons of policy why the Court should be reluctant to intervene at an intermediate stage of the extradition process, in the absence of an exceptional situation, for instance the determination of a discrete point of law on uncontested facts”. This was not such a case.

102    It follows that Mr Matson’s judicial review challenge to the Minister’s decision to give a notice under s 16 of the Extradition Act must be dismissed.

CONCLUSION AND DISPOSITION

103    Mr Matson failed to demonstrate any error on the part of the primary judge in his Honour’s review of the magistrate’s decision pursuant to s 19 of the Extradition Act. Mr Matson’s contention that the extradition request by the United States failed to meet any of the requirements of s 19 of the Extradition Act or Article XI of the Treaty has no merit and is rejected. It follows that Mr Matson’s appeal must be dismissed.

104    Mr Matson’s application for judicial review of the Minister’s decision to give notice under s 16 of the Extradition Act also must be dismissed. His contention that delay on the part of the United States in seeking his extradition, and the explanation for that delay, amounted to an abuse of process has no merit and is rejected. So too is his contention that the Minister was under a duty to investigate the delays, and failed to carry out that duty. The Minister is under no such duty at the s 16 stage.

Associate:

Dated:    13 April 2018