Jacobi, Reiner v United States of America & Anor [1996] FCA 962

CATCHWORDS

EXTRADITION- review proceedings - meaning of the words “reasonable grounds for belief” - whether the facts as described provided reasonable grounds for believing that the offence had been committed and that the person sought committed it - whether the facts described in the material supplied provided such reasonable grounds - whether the requirement that there be a description of the conduct constituting the offence has been met - applicability and use of hearsay evidence

STAY - stay of extradition proceedings sought - stay application contained material that was not before the magistrate - Court limited in review under section 21 to material that was before the Magistrate

Extradition Act 1988(Cwth) ss 21(2), 19(1), 16(1), 19(2), 19(3),19(2)(b), 11(1)(a), 11(1C), 11(6), 11(4), 19(3)(c), 19(3)(a), 19(5) and 21(6)(d)

Treaty on Extradition Between Australia and The United States of America - Article XI, paragraphs (3)(c), (2) (3), (5), (2)(b) and (c) and (2)(d)

Extradition Regulations 1988 - Regulations 3 and 4

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

Todhunter (52 FCR 251) Foll

George v Rockett (1990) 170 CLR 104 Cons

Liversidge v Anderson (1942) AC 206 Refd

Williams v Spautz (1992) 174 CLR 509 Refd

Reiner Jacobi v United States of America and Chris Owens

No QG 82 of 1995

Kiefel J Brisbane 8 November 1996

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

No QG 82 of 1995

BETWEEN:

REINER JACOBI

Applicant

AND:

UNITED STATES OF AMERICA

First Respondent

AND:

CHRIS OWENS

Second Respondent

JUDGE MAKING ORDER: Kiefel J

DATE OF ORDER: 8 November 1996

WHERE MADE: Brisbane

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The Order of Mr C Owens S.M. in respect of Reiner Jacobi made on 31 May 1995 under Section 19 Extradition Act 1988 (Cwth) be quashed.

2. The First Respondent pay the Applicant’s costs of the application for review save for the costs of the application for adjournment heard on 21 and 22 August 1996.

3. The Applicant pay the First Respondent’s costs of the application for adjournment heard on 21 and 22 August 1996.

4. In each case, the costs are to be taxed in the event of disagreement.

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

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

No QG 82 of 1995

BETWEEN:

REINER JACOBI

Applicant

AND:

UNITED STATES OF AMERICA

First Respondent

AND:

CHRIS OWENS

Second Respondent

CORAM: Kiefel J

DATE: 8 November 1996

PLACE: Brisbane

REASONS FOR JUDGMENT

The Applicant, Reiner Jacobi, seeks review under s 21(2) Extradition Act 1988 (Cwth) (“the Act”) of the decision of Mr Owens SM that he is a person eligible to surrender to the United States of America. The extradition offence was described in the warrant for arrest as “conspiracy to import and distribute hashish, a Schedule I non-narcotic controlled substance in violation of Title 21, United States Code, Sections 846 and 841(a)(1).”

The principal issue in these proceedings was whether the factual material, provided by the requesting country and before the Magistrate, was sufficient to satisfy the requirements of paragraph (3)(c) of Article XI of the Treaty with the United States concerning extradition. The requirement is that the facts described provide reasonable grounds for a belief that the offence in question was committed by the person whose extradition is sought. That issue requires, firstly, reference to the operation of that Treaty provision with the Act and regulations.

The Legislation and Treaty

Application of Article XI(3)(c)

Section 19(1) of the Act provides that where the Attorney General has, as here, given notice under sub-section 16(1), a Magistrate is to conduct proceedings to determine the eligibility of the person in question for surrender in relation to the offence for which their surrender is sought. That part of sub-section 19(2), which is relevant to the present question, provides:

“(2) For the purposes of sub-section (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;

(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;

¼”

The “supporting documents” to be produced, the first pre-condition to eligibility, are described in sub-section (3):

“(3) In paragraph (2)(a), “supporting documents”, in relation to an
extradition offence, means:

(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;

(b) if the offence is an offence of which the person has been convicted - such duly authenticated documents as provide evidence of:

(i) the conviction;

(ii) the sentence imposed or the intention to impose a sentence; and

(iii) the extent to which a sentence imposed has not been carried out; and

(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.”

The question which then arises under s 19(2)(b) is whether the provisions of the Treaty, and in particular Article XI(3)(c), require the production of other documents to the Magistrate and operate to qualify the operation of the Act in that respect.

The mode by which the Treaty is drawn into Australian municipal law was explained by the Full Court in Todhunter v United States of America (1995) 57 FCR 70, 76. Section 11(1)(a) 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. Section 11(1C) which, as the Court there explained, is to be regarded as in force at the date of commencement of the first regulations to the Act in 1988, provides that for the purposes of subsection (1) the limitations, conditions, exceptions or qualifications 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”. Regulations 3 and 4 of the 1988 regulations specify the United States of America as an extradition country and contains a statement to the effect also mentioned. The Treaty then in force was substantially amended by a Protocol of September 1990. Both documents are now referred to in regulation 4 and copies of each are contained in the schedules to the regulations. In these reasons I have referred to the Treaty so amended as “the Treaty”. For the purpose of submissions here I was provided with a copy of a document which combines them.

Paragraphs (2) and (3) of Article XI of the Treaty provide:

“(2) The requests 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;

(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.”

It will be observed that the terms of these parts of the Treaty to an extent duplicate (or “foreshadow” as the Court referred in Todhunter) the requirements of s 19(3) with respect to “supporting documents”. The Court there (86) identified them. What is additionally required by the Article, and which is here most relevant, is 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” ((3)(c)). As to the operation of that requirement, it may first be observed that s 11(6) of the Act itself qualifies the effect to be given to a Treaty by the Magistrate dealing with the question of eligibility (Todhunter (76)) for it provides that no limitation, condition, qualification or exemption which otherwise applies under s 11 “has the effect of requiring or permitting a magistrate to be satisfied of any matter other than a matter set out in paragraph 19(2)(a), (b), (c) or (d)”. In this respect however the subject matter of paragraph (b) is the production of documents, other than those listed in (a) as supporting documents, to the Magistrate. In Todhunter (85) the Court was of the view that the legislative scheme was such as to require the satisfaction of paragraph (a), as to whether those documents have been produced, “and then to pose the question whether, in addition to the documents there referred to, any other documents must be produced to the magistrate in order to comply with para (b)”. It may then be seen that paragraphs (2) and (3) of Article XI do not express a requirement for production, but one whereby a request is to be “supported by” certain documents including (in (c)) the description of facts here very much at issue. Paragraph (5) of the Article provides that documents accompanying an extradition request are to be received and admitted as evidence in extradition proceedings. The Court in Todhunter (86) considered that the construction of such a
provision should not be approached from a narrow or technical viewpoint and accepted that the provision implied that production of those documents to the Magistrate was required.

The document referred to in paragraph (3)(c) of the Article is to set forth, by the means there stated, “reasonable grounds for believing that an offence has been committed and that the person sought committed it”. This necessarily requires the Magistrate to have, after reading the description of facts, a particular state of mind, although it is expressed here indirectly and by reference to the quality of that material. And despite Todhunter having dealt with what this requires there remained here considerable dispute about whether the material satisfied that description and whether it provided a basis for the requisite belief.

Reasonable Grounds for Belief

Before turning to the meaning and effect to be given to the words “reasonable grounds for believing ¼” it is convenient to state what it does not encompass. At some points during submissions it appeared that reliance was placed upon a distinction which might be drawn between a “prima facie evidence test” and one which requires sufficient evidence to require a person to stand trial. In this respect s 11(4) provides:

“(4) Where, by virtue of subsection (1) or (3), this Act applies in relation to an extradition country subject to a limitation, condition, qualification or exception that, but for this subsection, would have the effect that a person is not eligible for surrender to the
extradition country in relation to an extradition offence for the purposes of subsection 19(2) unless the sufficient evidence test is satisfied, then, that limitation, condition, qualification or exception shall be taken instead to have the effect that the person is not eligible for surrender to that country in relation to that offence for the purpose of sub-section 19(2) unless the prima facie evidence test is satisfied.”

But the requirement with respect to the documentation in paragraph (3)(c) of the Article is not satisfied by either test. In Todhunter (91) it was held that the limitation, condition, qualification or exception with which Article XI 3(c) is concerned is not one of which s 11 speaks. The requirement that there be disclosed or provided “reasonable grounds for believing” imposes a less stringent test (Todhunter, 94). The Full Court (89) upheld the construction placed upon the words by the primary Judge, Spender J, that “¼what was required was a description of facts providing reasonable grounds for believing that each element of the United States offence for which extradition was sought had been committed.”. His Honour held that the terms of the Article did not require the description of facts to be by way of legally admissible evidence and hearsay was not required to be disregarded:

“The nature of the hearsay, whether it is attributable or non-attributable, the quality of the source, and other factors may all bear on the question of whether the description, be it hearsay or otherwise, is such as to found “reasonable grounds for believing” as the article requires.”

((1994) 52 FCR 228, 251).

His Honour’s view of the requirement is consistent with the decision in George v Rockett (1990) 170 CLR 104, to which I shall refer. Spender J concluded, by reference to the inadequacy of the material and the patent unreliability of some facts contained in it, that the condition of the Article was not, with respect to many of the offences, met.

The decision in George v Rockett concerned the issue of a warrant by a Justice of the Peace to whom it was required to appear that there be reasonable grounds for suspecting that something was on premises and also that there be reasonable grounds for believing that it might disclose something. The expression “reasonable grounds” for a state of mind such as belief was held by the Court to require (112):

“the existence of facts which are sufficient to induce that state of mind in a reasonable person”.

And in that respect the Court referred to the dissenting judgment of Lord Atkin in Liversidge v Anderson (1942) AC 206 and cases following it. There at issue was the extent of the discretion, and therefore the reviewability of the decision made, of the Secretary of State. The provision in question required that he have reasonable grounds to believe a person had particular associations before he could make orders affecting them. His Lordship’s point, now accepted as correct, was that the words “has reasonable cause” imported more than just a belief, and required the existence of a state of facts sufficient to support a belief, and that those facts would be capable of assessment and determination (227-8). Not to require this would reduce the requirement to one only that the belief be one held or arrived at in good faith, but not necessarily by a process involving reason.

What facts are necessary will nevertheless depend, to an extent, on what level of persuasion is necessary before a belief could be said to be held. This question assumes relevance also because of the difference, which it is necessary to recall, between belief and a level of satisfaction necessary for the criminal or civil standard of proof. It was addressed in George v Rockett.

As to the state of mind the Court (115) pointed out that suspicion and belief were different. Whilst belief obviously requires more than the holding of a suspicion, it did not, in their Honours’ view, require proof. The objective circumstance sufficient to show a reason to believe something need not however, in their Honours’ view (116) establish on balance of probabilities that something occurred or existed:

“... 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 upon the circumstances, leave something to surmise or conjecture.”

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.

The Facts as Described

A deposition by Mr Pearson, an Assistant District Attorney for the Southern
District of Florida, contains reference to a copy of the indictment presented against one Marks and 21 others in March 1988. This was said to provide a necessary “factual backdrop”. The applicant submitted that reliance could not be placed upon any indictment, for the reason given by Spender J in Todhunter (52 FCR 251), that it is not a description of facts “by way of affidavit statement or declaration” as Article XI(3)(c) requires.

His Honour was there concerned with attempted reliance upon the indictment for the extradition offence itself. Here the document is an annexure to a deposition and whatever facts it contains may be taken to be stated by Mr Pearson. In this regard, it will be recalled, the requirement is not that the statement, affidavit or declaration referred to in Article XI(3)(c) contain legally admissible evidence. But it may be of little value, given that such a document will consist largely of assertions, and little detail, and the deponent will have no personal knowledge of them.

In any event it seems to me that what is here referred to in the group indictment has little relevance to the facts relating to the applicant. It states that Marks and others were involved in various criminal enterprises over a long period of time and that this amounted to racketeering. Similar references are to be found in the other statements. It was to the charges of racketeering that pleas of guilty were entered in 1991, shortly before the indictment charging the applicant issued. I shall leave, for discussion later in these reasons, the relationship between this enterprise and the conspiracy with which the applicant was charged. So far as the description of facts are concerned, nothing in the “overt acts” set out in the indictment concerning
the racketeering contains any reference to the applicant or to a plan during 1986. What is of relevance arising from the indictment is little more than the fact of a long-standing criminal enterprise which involved, amongst its illegal activities, drugs and which was for some time the subject of investigation.

The main source of the information concerning the applicant in the depositions is the alleged co-conspirator Sunde. The reliability of his account, in the absence of any supporting information from any other persons or by documents, is very much in question. Sunde had, prior to the dates in question, long been involved in criminal activity through his association with Combs, one of the racketeers charged. Sunde pleaded guilty only to the charge of conspiracy to distribute hashish in the period February 1985 to about November 1986, and received five years probation without a requirement of reporting. The applicant was not named in that indictment. The Indictment of the Grand Jury charging both Sunde and the applicant was with respect to the same period but included a plan to import hashish. I am not advised whether this charge will proceed as against Mr Sunde or whether his co-operation with the authorities between 1988 and 1991, and in particular the provision of information concerning the applicant, was influential in his sentencing, but it seems likely that it was.

Sunde says that he was asked by Combs to assess the applicant’s “capabilities” in being able to handle the importation. There is however no explanation as to why it was considered Jacobi was likely to assist or what he was doing at the time. It was not suggested he was himself involved in illegal activities
then. The “importation” needs be read with reference to the date Sunde first met the applicant to discuss it, some time in 1980 or 1981.

These discrepancies may have arisen because other, earlier, depositions by Sunde mentioned in this deposition are not provided.

The applicant at this time apparently told Sunde that he was working with the US Customs Service “on loan” from the intelligence agency he worked for. Elsewhere however the agents involved in the investigation refer to him as someone who was simply paid for information. But it is nowhere suggested that, at any time prior to 1986, he acted otherwise than to assist the investigation into the Marks/Combs organisation. Indeed a substantial seizure in 1984 was brought about by information provided by him with the apparent purpose of dismantling the Combs organisation, which is what he conveys to Sunde early on. He also told Sunde that another task he was to undertake was to personally seize the profits of drug importations. But it is not suggested at this point that he was intending to keep them. For his part Sunde says he tells Jacobi that he wishes to leave the organization. It is not said whether he was serious in that.

The applicant and Mr Sunde were involved in the investigation from 1984 and over the next three years or so. During this time various conversations were recorded by the investigating authorities. The two men assisted in interpreting some of them. For this purpose they were sometimes provided with bundles of transcripts, but on the clear qualification, it is said, that they would keep them confidential. They meet repeatedly with the agents. At some point they determined to meet Ms Hayes, Combs’ common law wife, to attempt to obtain further information from her. Combs was at this time in custody. The meeting with her must have been prior to mid-1986. It was during this meeting that she informed them of the sea-going motor vessel the “Axel-D”, its location and use for conveying drugs and that there was one load of marijuana in Thailand and one of hashish in Pakistan available to the organization and that one of them would be brought into the United States. The applicant advised Sunde that he passed this information on to the Drug Enforcement Agency. It is of some importance that the Assistant District Attorney says that a shipment of hashish from Pakistan was brought to Mexico and thence to the United States by the Axel D in March or April of 1986. There is no other importation referred to in 1985 or later 1986.

The applicant, armed with the information about the Axel D from Hayes, is said to have travelled to Australia and located it and then informed the US authorities. As a result, a satellite tracking device was placed on board. For some reason Sunde also came to Australia when this was undertaken but it is not said that he was present during installation. One infers however that it was likely that the applicant was. Curiously he must not have advised Sunde, for the latter says that he became aware of the location of the device on the vessel sometime during or after October 1986 when he was permitted to listen to telephone conversations between two investigating agents. They apparently discussed its whereabouts and that it was not then working. At this time it is also said, by Sunde, that the authorities were not being forthright with the applicant and him. The two of them did not accept that the device was
malfunctioning. That may not have been correct as the agent responsible for its installation explains that on 10 October 1986 it was necessary to replace an antenna which had been detached during maintenance of the vessel.

It is at this point that, inexplicably, Jacobi and Sunde are said to determine to sell the information. The only fact adverted to and which preceded this change was their unsuccessful attempt to obtain Combs’ co-operation.

It is then said that they offered information concerning the location of the device and the progress of the investigation to Hayes and through her Combs, for $US500,000 and a further $US5M “¼ if the load of drugs was successfully imported into the United States in exchange for information concerning the location of the tracking device and for current information concerning the DEA and customs Investigation into the Combs organizations.” This was rejected out of hand. What was the “load of drugs” and where it was to come from is not further explained.

On receiving the rejection from Combs and Hayes they travelled to London where Marks resided. The applicant, for some unexplained reason, waited outside his house while Sunde talked to Marks. Much the same offer was put. Apparently Marks already knew of the existence of the device on the vessel because Hayes had told him. What Sunde was able to tell him was the exact location of it on the vessel. This was apparently worth the sums sought, for Marks agreed to it. On this occasion the two also promised that the DEA case against Marks would be destroyed. Sunde does not say how this was to be effected.

Finally Sunde recounts the receipt of monies from Marks. At this point he appears to have continued in the company of Marks, travelling with him and receiving accommodation and monies from him from time to time. He says that he received $US200,000 firstly and another $US195,000 plus some further sums which totalled, in all, about $US500,000. He says that he passed on the majority of this to Jacobi “minus a small amount which I kept for my expenses”. Nowhere in his statement does he explain what the agreement was as between he and the applicant, with respect to the monies.

Sunde goes on to say that Marks did decommission the tracking device; that he and Jacobi passed on “vital information” which allowed Marks to evade arrest for some time. He does not say what the information was. The Assistant District Attorney adds that, from what Sunde has told him, Jacobi conspired to assist the Marks’ organisation to import. Such an assertion is not itself of any persuasive force.

The submissions for the applicant raised some questions which would be relevant to the admissibility of evidence. That is not the approach here to be taken. But those which focussed upon what weight aspects of the depositions ought be accorded are relevant to the question whether they provide a reliable basis for a belief. For example, factors such as the version of events given being wholly uncorroborated, and that the narrative was in all critical respects provided by an alleged co-conspirator, clearly may be taken into account in determining whether the facts provided are sufficiently influential. The exercise here is not simply one which
requires acceptance of what is put forward as what has occurred. And whilst one might say that it is not necessary, for the purpose of this evaluation, that an answer be provided to questions arising from the statements of events, if too many queries remain the conclusion may well be that it is, in substantial respects, unreliable.

With respect to Sunde’s description of events, it contains too many strange and unexplained features for it to engender any belief. There is nothing provided to give the story by Sunde reliability or credibility in any important respect. It follows that one could not then proceed to consider those facts as disclosed in connexion with the elements of the offences said to have been committed. The requisite belief as to whether the applicant might reasonably be thought to have committed the offences in question, could not then be held. I shall outline what has led me to the view that the quality of the material could not reasonably ground any such belief.

It seems to me that, essential to an acceptance of the version of events given by Sunde, is an understanding of what was the true role played by the applicant and him. This is necessary not only to render the events narrated comprehensible. It could have explained how it was that each of Sunde and Jacobi came upon sensitive information not always connected with a task they were undertaking. It would assist in explaining the relationship between them with the investigating agents. It may have thrown light on why a decision was made by the applicant to act, in a seemingly inconsistent manner, against the investigation. As I have outlined, the agents simply describe him as a paid informant. But Sunde, in his statement, says that the applicant had informed him that he was seconded to Customs from an intelligence service. The
assertion is nowhere dealt with. There are features which suggest that he may have been more than an informant. For instance, it is said that he travelled to Australia with the investigating team when the device was placed on the vessel the Axel D. And it seems he was given transcripts to decode. Accepting for the moment that this was because it was within his area of expertise, it also seems that he was put in a position where he could make copies of them. If these matters do not suggest that he was more than an informer they tend to suggest that the investigation was in some respects unusual. At least that is the only view I have been able to reach in the absence of some further explanation of it and the parts people played in it.

So far as Sunde’s position was concerned, I take it one is to assume that, from the outset, the applicant and the investigating agents accepted his story that he wished to detach himself from the illegal activities of the enterprise and to assist in its downfall. At no point however does he say whether this is true. On whose behalf he was acting is obviously of some importance. Then he appears to have re-attached himself to the enterprise after the deal is struck with Marks by remaining with him, accompanying him on travels and receiving money and hotel accommodation from him. And this is after he has told Marks that he and Jacobi obtained information in the course of working against him and the other members of the enterprise. One possibility is, then, that at all times he worked for the racketeers and was not bona fide in his work with the investigating team. That would further reduce the possibility that what he says could be counted as reliable.

What one can say, with some certainty, of Sunde is that he was involved in illegal and drug related activities for many years. He has now received five years non-reporting probation as the penalty for his part in the enterprise with Combs and others. It is not gone into, but it is likely to be the case that his cooperation with the authorities by providing this information has played a part. It is not said whether he will stand trial with respect to the charges on the indictment in question, charging both he and the applicant. In either event he has had incentive for providing some information and it may be that that incentive remains.

As I have said, the investigation itself can be seen to involve some unusual features. At least in the absence of explanation that seems to be so. Both Sunde and Jacobi were made privy to important information. This may be explicable. They are however permitted also to retain custody of what is apparently sensitive and valuable material, so that they are in a position to make copies for their own use. All that is explained by the agents is that the two were directed to treat the documents as confidential and not disclose them. And then, why it is that Sunde is made aware of the exact location of the device on the vessel remains a puzzle. It is nowhere explained why a person with his status and connection to the investigation is permitted to overhear conversations between agents as to such an important matter.

That brings one to consider the decision made by Sunde and Jacobi to sell information and the arrangement made as between them. The sudden change of direction by Jacobi is unexplained. I was simply asked to infer that the decision to sell the information was simply motivated by a desire for money. That is of course possible but the timing of it is strange. It occurs, suddenly, after they were
unsuccessful in persuading Combs to co-operate. But one is not told what this meant to them. And it is undertaken by someone who has acted in aid of investigations for many years. Then Sunde does not say what was agreed between them. All that one infers from what Sunde later does is that he had no interest in receiving any money for the part he played in it.

Then the question of what value the information could have had to Marks, naturally arises. He had already been told by Hayes that it was somewhere on the vessel, and he had access to an expert electronic engineer. How the sums of $US500,000 to be paid initially and $US5M later, were arrived at is not discussed. Nowhere is it explained what the value of the vessel was. Further, there is no reference to there being a particular importation afoot which had a particular value. There is, in short nothing to give the critical agreement any context.

None of these matters are in any way clarified. They remain entirely unsupported by any documents, for example, one which could establish the presence of Jacobi and Sunde in the United Kingdom at the relevant time.

The facts as described give rise to many questions but are, in my view, wholly insubstantial to provide grounds for a belief that the events occurred as asserted. A contrary view would require acceptance of them at face value. In turn this would involve the unquestioning acceptance of a somewhat bizarre version of events by a criminal who is also said to be a co-conspirator.

For completeness I should however address the question as to what the facts, as described by Sunde, disclose with respect to the offences in question. Before turning to that, it is first necessary to refer to the description of the offences provided and as to the elements said to constitute the offence.

The Elements of the Offence and whether they are satisfied

Both the Act, in its reference to the supporting documentation (s 19(3)(c)) and the Treaty (Article XI(2)(b) and (c)) require a description of the offence or offences the subject of the extradition proceedings. The Treaty adds that the legal description is to be by way of a “statement of law describing the essential elements of the offence” for which extradition is requested. This is in addition to material relating to punishment and limitation of proceedings which are presently not relevant.

The offence or offences in question, with respect to a person sought to be prosecuted, will be those referred to in the warrant, which is to be placed before the Magistrate: section 19(3)(a). Additionally the Treaty requires the charging document, here the Grand Jury’s indictment, to be furnished. As one might expect, the warrant contains an abbreviated description of the offence. It is described as:

“¼conspiracy to import and distribute hashish, a Schedule (I) non-narcotic controlled substance in violation of Title 21, United States Code, Sections 846 and 841(a)(I).”

In the indictment each of the applicant and Sunde are charged that, between about February 1985 and November 1986 they:

“¼ did knowingly and intentionally combine, conspire, confederate and agree with each other and with persons known and unknown to the Grand Jury, to import and distribute a mixture and substance containing a detectable amount of hashish, a Schedule
I non-narcotic controlled substance, in violation of Title 21, United States Code 841(a)(I).

All in violation of Title 21, United States Code, Section 846.”

The description provided in the deposition of the Assistant District Attorney is discursive and ranges over a number of pages. And, as will be seen, it is somewhat confusing.

Section 846, it is explained, provides that a person who conspires to commit an offence is criminally liable. In terms which would be understood in Australia it is said that a conspiracy involves two or more persons in some way or manner coming to a mutual understanding to try to accomplish a common and unlawful plan as charged in the indictment and that the person charged wilfully became a member of such conspiracy. It is further explained that, to become a member of a conspiracy, does not require full knowledge of all of the details of the unlawful scheme or the identity of all of the other conspirators. So, it is said, if a defendant “with an understanding of the unlawful nature of a plan, knowingly and wilfully joins in that plan on one occasion, that is sufficient to convict him for conspiracy even though he had not participated before and even though he played only a minor part”. Pausing here, one might ask just what was the plan it is said the applicant and Sunde are said to have joined?

The last importation referred to in the deposition was that which is said to have occurred in March or April 1986. There is no other referred to as planned, in any way, up to the time the two men spoke to Marks. The terms of the agreement with Marks, to pay $US5M “from the proceeds after the drug shipment arrived and was
sold” might imply that each of Sunde and the applicant knew of some plan to import, although it raises the question whether they were referring to any shipment which might take place in the future or one that was actually proposed. It is not of course necessary that a shipment actually take place and that the plan to import succeed. But it is necessary, from what the Assistant District Attorney has explained, that there be a plan of some sort and that they have some appreciation of it even if in a general way. In that circumstance it would not suffice that they simply offer to assist in the promotion of any activity or ongoing criminal enterprise. I am unable to accept the submission made on behalf of the requesting country that, by attaching himself to the organisation, and by agreeing to assist it, the applicant committed the offence referred to in the indictment. The charge is not one of racketeering or joining an ongoing criminal enterprise. It is of joining with those who are intending to import and distribute drugs. And in the offence description provided that requires a plan, as to which his assistance is rendered. It could not suffice that there be some general intention to do so at some time in the future.

What is here missing, it seems to me, is a reference to any current plan to import or distribute drugs. I should add that part of the agreement, to “destroy the DEA case”, (even if it were said how this was to be effected)would take the matter no further. The charge is not that the applicant agreed to aid them in some way to avoid detection or arrest or obstructed the appropriate authorities.

I turn then to the remaining description of the elements of the offences of importation and distribution of the drugs in question. I shall not set out, in detail,
what is said to be involved in the offences of importation and distribution. At least at one point it is explained that the objects of the conspiracy was importation of hashish into the United States from outside and the distribution of it. And, whilst there is no further discussion of the elements of the offence of importation, one might think what is involved is self-evident. What will be required to be shown is just what has been stated in connection with a description of the conspiracy, namely the bringing of drugs into the country. The confusion which arises is caused by the reference to the only other section mentioned in the charging document, (s 841(a)(1)), it being earlier explained that s 846 provides simply for criminal liability with respect to conspiracy. Although it is elsewhere said that the United States Government would need to prove both importation and distribution, it is plain enough from the several references by the Assistant District Attorney to s 841(a)(1), that it deals only with distribution. Indeed from a reference, in full, to the terms of the section, it appears that it is concerned with possession with intent to distribute.

Apart from observing that such descriptions are not of assistance and are not likely to have been what was intended, which would be that which would facilitate the Magistrate’s determinations, the question which arises is what, if anything, follows when the section, said to be the subject of the charges, does not appear to involve any importation? But for these section references, I would have inclined to the view that what is involved in importation, a word having clear meaning in English, is sufficiently stated in the terms referred to in referring to the object of conspiracy. But the reference to only one section, and one dealing with distribution, gives rise to an uncertainty as whether the offence or offences, the subject of the extradition request
were intended to include importation.

Counsel for the requesting country submitted that one might simply treat the reference to importation in the indictment and warrant as surplusage. But if the relevant enquiry was one of intention, one would have to conclude, by reference to the facts provided concerning the offences, and in particular the alleged agreement with Marks, that it was some importation they were said to be assisting. However, and despite the uncertainty created by the offence description, the warrant and indictment are clear in their terms. The fact that they do not provide a section reference does not alter that. It seems to me, then, that so long as it is elsewhere stated that a conspiracy to import drugs is an offence and it is sufficiently described, the statutory requirements are met. The Assistant District Attorney’s depositions do so. That is not, however, the end of the matter.

What the discussion earlier has brought into focus is the identification of the plan, the object of the conspiracy. As I have said, the description of the facts does not permit the conclusion that there was one current to import hashish or marijuana. But there is also nothing to suggest there was any plan to then distribute any drugs in the United States. There is simply no discussion of it. If an importation was shown to be planned (but it has not) one might infer that distribution is the most likely outcome. But what the offence of conspiracy to distribute requires, from the description given, is also a plan.

It seems to me, then, that even if one were to accept the story given, one would still be unable to conclude that there had been a conspiracy to import or to distribute drugs.

There is another matter which arises from the omission of the reference to the statutory provision concerning conspiracy to import. The description of the penalty applicable, which is required by both the Act and Treaty (s 19(3)(c)(i) and Article XI(2)(d)), here provided by the Assistant District Attorney refers only to the punishment relating to the conspiracy offence under s 846 and leaves unclear whether it applies regardless of the object of the conspiracy and whether it refers to one or both of distribution and importation. These were not however matters argued on the application and it is not necessary to conclude them. I ought add that my limited researches suggest that the importation of drugs and conspiracy to do same, appear to be elsewhere dealt with in Title 21, but this is not a matter which has been taken into account by me. And it may be that they could not, since the Court, on a review under s 21(1), is limited to the materials placed before the Magistrate (s 21(6)(d)) and those materials include the description of the offence.

Description of Conduct

I have dealt with the condition relating to the quality of the material to be provided with respect to the facts under s 19(2)(b) and have concluded that it has not been met. It also seems to me arguable that what was provided suffered another defect. Each of s 19(3)(c) and Article XI(2)(b) requires a description of “the conduct constituting the offence”. That information is of course relevant to the question arising under the Act (s 19(2)(c)) which requires the Magistrate to have regard to the
conduct of the person sought to be extradited, and which is said to constitute the offence, to determine whether it would also have constituted an extradition offence in that part of Australia. (Here it would also be of assistance when considering the question posed by s 19(2)(b)). The grounds relating to the statutory provision were not pursued at the hearing. They did not, in any event, include one as to the requirement of such a statement and I have consequently not heard argument on the matter. I observe however that if more than a general narrative of events is required, as seems likely, it has not been provided.

Application for Stay

The applicant for review also sought to stay the extradition proceedings on a ground not raised before the Magistrate and based on material not before him. As I have just observed, this Court is limited in its review to the materials which were placed before the Magistrate. Nevertheless I have granted leave to file the affidavit material relied upon so as to complete the record and because it was submitted that what was involved was an abuse of this Court’s processes. I do not consider there is merit in the application and I shall state the basis for it shortly.

It was submitted that the requesting country tailored the evidence before the Magistrate, and therefore also before this Court, by leaving out of the material original photographs which were put before the Magistrate in Hong Kong who heard other extradition proceedings. The Magistrate found them not to be a photograph of applicant. That was not however the basis for the ultimate refusal to extradite. If it were an exercise proper to the undertaken, I doubt that one could now draw a conclusion as to identity, by comparison, because of the age of the photographs. And whilst the provisions of s 19(5), which preclude the Magistrate from receiving evidence to contradict an allegation that the person engaged in conduct constituting the extradition offence, would not seem to foreclose a question as to whether the person before the Magistrate was the person the subject of the extradition request, I was not asked to determine that question. It was not suggested that the person represented here was not the person referred to in the request and charge documents. And so far as the requirements as to identity are concerned (Article XI(2)), but putting aside the purposes to which this information was intended to be put, the agents Wezain and Desm attend to this in their statements. Rather the applicant’s submissions were to the effect that there was something untoward in the provision of photocopies of the photographs. I am unable to draw that conclusion or any as to the purpose for which these proceedings have been brought: see Williams v Spautz (1992) 174 CLR 509.

Conclusion

In my view the facts described in the depositions do not provide a reasonable ground for a belief that the applicant committed the offence or offences of conspiracy to import and distribute. Fundamentally that is so because they do not provide any basis in reason for concluding that the events occurred as recounted by the co-conspirator. To that may be added that, even if one were persuaded to the belief that events occurred as he narrated them, there would still not be a basis for a conclusion that the offence of conspiracy to import or distribute had been established, since there was no relevant plan adverted to.

The order of Mr C Owens SM made on 31 May 1995 will therefore be quashed. I will hear submissions as to any further orders necessary and as to costs.

I certify that this and the preceding twenty seven pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel.

Associate

Date: 8 November 1996

Counsel for the applicant: Mr Chaikin

Solicitors for the applicant: Witheriff Nyst

Counsel for the respondent: Mr Rice

Solicitors for the respondent: Commonwealth Director Public Prosecutions

Date of Hearing: 28, 29 August 1996

Place of Hearing: Brisbane

Place of Judgment: Brisbane

Date of Judgment: 8 November 1996

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