FEDERAL COURT OF AUSTRALIA

McDade v The United Kingdom [1999] FCA 1341

EXTRADITION – proceedings to determine eligibility for surrender – production of “supporting documents” – statement setting out “conduct constituting the offence” – whether statement may include acts and facts which go beyond those necessary to establish the offence – whether a separate statement is required in relation to each offence – whether statement must be self-sufficient or may be included in more than one document – whether statement may incorporate other documents by reference.

Extradition Act 1988 (Cth), ss 10(2), 19(2)(a), 19(3)(c)(ii)

Linhart v Elms (1988) 81 ALR 557 referred to

Wiest v Director of Public Prosecutions (1988) 23 FCR 472 followed

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

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

Unkel v DPP (1990) 95 ALR 44 referred to

United States of America v Holt (1994) 49 FCR 501 referred to

STEPHEN GERARD McDADE v THE UNITED KINGDOM and

PETER MALONE

W 13 OF 1999

CARR J

24 SEPTEMBER 1999

PERTH

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The order of the second respondent, made on 5 February 1999, is confirmed.

3.         The applicant pay the first respondent’s costs of the application.

4.         The above orders shall not take effect until 1 October 1999 at 4.30 pm.

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

REASONS FOR JUDGMENT

Introduction

1                     This is an application under s 21(1) of the Extradition Act 1988 (Cth) (“the Act”) for review of a decision made on 5 February 1999 by the second respondent, Mr Peter Malone, a Stipendiary Magistrate at the Court of Petty Sessions, Perth.  The second respondent determined, pursuant to s 19(9) of the Act, that the applicant, Stephen Gerard McDade, was eligible for surrender to the United Kingdom in relation to eighteen offences contrary to ss 1 and 15 respectively of the Criminal Law Act 1977 (UK).  So far as s 1 of the Criminal Law Act is concerned, the charges are of stealing, dishonestly obtaining, or attempting to obtain various items of property, banking facilities and credit facilities.  The charges under s 15 of that Act allege dishonestly obtaining various items of property or cash with the intention of permanently depriving by deception. 

Factual and Procedural Background

2                                 The applicant was born on 8 March 1958 in Scotland.  On 15 July 1991, the applicant, his wife and two young children, arrived in Australia having obtained the necessary immigration approval in London about one year earlier.  On 9 August 1994 a warrant for the arrest of the applicant was issued by a Justice of the Peace for the Inner London Area in respect of twenty-three proposed charges.  On 9 September 1994 the British High Commission in Canberra issued a Diplomatic Note, No 58, seeking the extradition of the applicant to the United Kingdom.  On 20 April 1997 the Attorney-General of the Commonwealth of Australia issued a notice under s 16 of the Act reciting the fact that an extradition request had been received in respect of the applicant and that in the Attorney’s opinion the applicant was an extraditable person, that his alleged conduct constituted extradition offences and that there was no extradition objection.  On 9 June 1997 Mr Robert Brian Lawrence, a Stipendiary Magistrate in Perth, issued a warrant for the arrest of the applicant.  The applicant first appeared before the Court of Petty Sessions on 10 June 1997.  After a number of remands or adjournments, the second respondent conducted proceedings on 1 February 1999 to determine whether the applicant was eligible for surrender.  He made that determination on 5 February 1999.  After reviewing the documents before him, the second respondent determined, under s 19(9) of the Act, that the applicant was eligible for surrender to the United Kingdom in relation to eighteen of the twenty-three offences relied upon by the first respondent.  He ordered that the applicant be committed to prison to await surrender.  On 11 February 1999 the applicant lodged this application for review.  There was no appearance on behalf of the second respondent.  The first respondent appeared and opposed the application.  On 26 March 1999, R D Nicholson J ordered that the applicant be released on bail on stringent terms and conditions.

The Issue to be Decided

3                     Section 19 of the Act relevantly provides that a person is only eligible for surrender in relation to an extradition offence if the supporting documents in relation to the offence have been produced to the magistrate – see s 19(2)(a).  Section 19(3)(c) includes as one of the required supporting documents:

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

4                     Section 10(2) provides that a reference to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed.

5                     The only ground of review relied upon by the applicant is that the second respondent erred in ruling that a summary of evidence and allegations, produced to him at the proceedings referred to above, was a valid and sufficient statement for the purposes of s 19(3)(c)(ii) of the Act and that accordingly s 19(2)(a) had been complied with.  That is the issue to be decided.  The relevant document was identified in the proceedings before the second respondent as Exhibit 139.  I shall, in these reasons, refer to it as “the Statement”.

6                     The only express requirement of a statement (so far as is relevant to this matter) in the Act is that it sets out the conduct constituting the offence.  Before describing the Statement and then assessing whether it meets the requirements of the Act, I shall first refer to the purposes of such a statement, and to the form which it is required to take.  In Linhart v Elms (1988) 81 ALR 557 at 575 Fox J, after considering the need for particularity in the relevant statement, said:

“The object of the particularity is partly so that the aspect of double criminality (in its muted form) can be considered adequately, and partly so that s 13, the speciality provision, becomes more patently applicable.”

At 583 Gummow J said:

“It follows that for a statement to satisfy the description in sub-para (C), it must speak with sufficient specificity to enable the magistrate to be satisfied that the fugitive in question is liable to be surrendered: s 17(6)(b).  This involves consideration of the sufficiency of the statement to enable proper consideration of the application to the particular case of s 4(1A) and (1B) and s 13 [these were references to the double criminality and speciality provisions of the 1966 Act].  Again an inquiry as to whether a statement satisfies the description within sub-sub-para (C) will be a matter for practical judgment and assessment, bearing in mind the prohibition in s 17(6A) upon the production of evidence by the fugitive to controvert the commission by the fugitive of the acts or omissions in respect to which the surrender is requested.”

7                     In addressing the form of the statement relied upon in Linhart, Gummow J made this observation at 583:

“They [the specifications of the offences] do not set out in the necessary sense “the act or omission” in respect of which the surrender of the appellants is sought.  They are a bare summary of some of the elements involved.  Plainly, these deficiencies are sought in each case to be remedied by what is to be drawn for each case from the general words of the introductory matter I have set out above.  However, this serves only to compound the problem.  The introductory matter contains within it various assertions, some of which are in themselves ambiguous and some of which are obscured alternatives to other assertions.  In any given instance of charges C-X, it would require removal of the ambiguities in the general statement and a choice between alternatives before the reader would be able to put the jigsaw together and then ask what it is that “sets out” the act or omission in respect of which surrender is sought.”

8                     In Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 519, Gummow J (with whom Sheppard J agreed) said:

“The duly authenticated statement in writing setting out all the acts or omissions in respect of which surrender is requested, serves several purposes.  It assists consideration of whether extradition is sought in respect of extradition crimes which satisfy the “double criminality requirements …”.  It also assists in determination of whether the “speciality” provisions … are met.  Further, it may assist in deciding whether an offence of a political character is involved …”.

9                     In Todhunter v United States of America (1995) 57 FCR 70 at 90 (another decision of a Full Court of this Court), the Court observed:

“It is undoubtedly the case that the provision of a statement setting out the conduct constituting the offence, being the acts or omissions or both by virtue of which the offence has or is alleged to have been committed … is significant for the operation of s 19(2)(c).”

10                  I note that the Act as substantially amended in 1988 is expressed in terms which, at first glance, might appear to be relevantly different.  The Act at present requires a statement setting out “the conduct constituting the offence”.  Previously there was required a statement “setting out the act or omission in respect of which the surrender is sought”.  However, the provisions of s 10(2), which I have summarised above, result in there being no difference relevant to the present matter, between the former s 17(6)(a)(i)(C) and the current s 19(3)(c)(ii).

11                              There is no suggestion that offences of a political character are involved in this matter.  Accordingly the Statement needs to be assessed, in my opinion, to see whether  it satisfies the purposes of identifying offences which satisfy the double criminality requirement and enables the speciality provision to operate properly.  By that I mean, first, that it should be reasonably apparent from the Statement which acts are the acts upon which the first respondent relies as constituting the extradition offences for which the surrender of the applicant is sought, so that the second respondent (the Stipendiary Magistrate) can assess whether those acts would have constituted an offence in Western Australia.  Secondly, it should also be reasonably apparent that if the first respondent were to seek to prosecute the applicant in England for an offence which was not the subject of the extradition request, the applicant could only be convicted on that fresh charge, on proof of the conduct which constituted the surrender offence or offences.  Section 22(4)(d)(ii) which relevantly qualifies the speciality principle, does so in terms of any offence “… of which the eligible person could be convicted on proof of the conduct constituting any surrender offence”.

12                              There are other cases which provide guidance on the requirements of a statement.  In Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 297, a Full Court of this Court referred to the form and content of the required statement and said:

“What is relevantly required is a statement of what is alleged to have been actually done or omitted, not a mere restatement of the charge in respect of which extradition is sought.”

13                  In Wiest at 483 Sheppard J stated:

“It seems to me that the Act provides for a simple and straightforward procedure.  All it requires is a duly authenticated statement in writing setting out all the acts or omissions in respect of which the surrender of the person is requested.  No doubt such statements may take a variety of forms, but with the assistance and advice which is apparently made available to countries seeking extradition of accused or convicted persons from Australia, I would have thought that it was not asking too much to expect a clear and unambiguous statement of the relevant acts and omissions, even if they be lifted (which it may well be appropriate to do in a given case) from another document such as the judgment here.  Extradition is after all a serious affair and there should be no room for uncertainty or misunderstanding.”

14                  The applicant contends that the Statement is not valid, for several reasons.  I shall deal with those contentions under four headings.  But before doing so I shall describe, by way of summary, the contents of the Statement.  I must stress that when I appear to be stating facts in this part of my reasons, I am only reciting or paraphrasing the allegations contained in the Statement.  The Statement is a 19 page document, containing 126 numbered paragraphs, prepared by Detective Inspector David Cook of the Metropolitan Police Service in London.  Det Insp Cook, in his affidavit, described the Statement as “… a report containing a summary of the investigation and allegations against Stephen Gerard McDade”.  A general idea of the contents of the Statement can be gleaned from the first four introductory paragraphs which read:

“1.       This report deals with the criminal activities of Stephen Gerard McDADE and his wife Louise EDDERY, between the period 1989 and 1991, whilst Stephen McDADE was employed by the travel company Bladon Lines. 

2.         The crimes themselves although relatively simple, are complicated by the volume of offences, the time over which they were committed and the fact that aliases were used by both parties.  

3.         Although there is a considerable amount of evidence within this report to support the allegations, to make sense of what has happened it will be necessary to include some valid suppositions.  When however this is done they will be clearly indicated.

4.         Also to enable the reader of this report to have a full understanding of what this case is all about it (sic), this report has been subdivided into the following seven sections;

            i.          Background information on Stephen McDADE

            ii.         Resume of the full circumstances

            iii.        The offences committed, relevant evidence and witnesses.”

15                  There then follow four paragraphs of background information including the applicant’s date of birth and some particulars of his employment.  Next there is a section headed “Resume” comprising 24 paragraphs.  That section refers to the applicant’s two applications to emigrate from England to Australia.  There is then a description of a method whereby the applicant is said to have obtained sufficient particulars to enable him to assume the identity of three named individuals in London.  Those individuals were Christopher John Seaborn, Peter Taylor and Neil Proctor.  The applicant is said to have placed an advertisement in the “Fulham Post” and “Chelsea News” newspapers of Thursday 16 March 1989 for a chauffeur’s position with a salary of £15,000 per annum, plus accommodation.  Prospective employees were asked to contact a Mr Nigel Cunningham at the Hilton Hotel in London on a given telephone number on Saturday 18 March 1989 between 12 noon and 5 pm.  Each of Messrs Seaborn, Taylor and Proctor telephoned the given number and had a lengthy discussion about the job opportunity.  They then, as requested, each sent a full curriculum vitae including national insurance numbers, bank account details, passport details, driving licence particulars and a current photograph.  None of them heard anything further.  About three weeks later Mr Seaborn went to the Hilton Hotel, but nobody knew anything about Mr Cunningham.  Details are then provided in the Statement of how the applicant, using the name Christopher Seaborn, and a reference in that name, obtained employment as a residential caretaker with Bladon Lines at their building at 56-58 Putney High Street in Putney.  The significance of the address appears below.  Bladon Lines are, apparently, the largest ski tour operators in England having offices on three floors in that building with the caretaker’s flat being on the top floor.  The applicant’s duties as residential caretaker included office security and the conduct of the mail room.  He had access to the whole of the building at all hours.  Bladon Lines provided the applicant with a reference so that he could open an account with Barclays Bank Ltd in Putney.  The applicant started work on 3 July 1989.  This part of the Statement concludes with a description of how the applicant and his then de facto wife (Ms Louise Eddery) departed, without notice, at some time between Monday 1 July 1991 and Tuesday 2 July 1991.  Employees of Bladon Lines arrived at their offices on that Tuesday to find what appeared to have been a burglary with a number of computers, laser printers, a fax machine and a Pentax camera missing.  (It subsequently transpired that there were many other items missing, to a value of approximately £23,000).  They then found that the caretaker’s flat was vacant, and that the personal possessions of the applicant and his family had been removed, as had virtually all the furnishings. 

16                  The next part of the Statement is headed “The Offences Committed”.  It is in narrative form and describes, initially, the fact that the applicant obtained employment using both false references and a false identity.  This (paragraph 33 when read with earlier paragraphs) is clearly a reference to charge No 1.  I pause here to note that the second respondent, at the eligibility hearing to which I have referred above, concluded that there was insufficient evidence of fraud so far as the obtaining of that employment was concerned, and determined that the applicant was not eligible for surrender in respect of that charge.  He came to a similar conclusion in relation to the four conspiracy charges against the applicant and his wife.  The first respondent has not sought review of those determinations.

17                  The remainder of this part of the Statement comprises a detailed description, mainly in chronological order, of numerous transactions entered into by the applicant using the name Christopher Seaborn.  They include obtaining a charge account with Marks & Spencer PLC and a personal loan account with that company.  The unpaid balance of the charge card account with Marks & Spencer forms the basis of charge No. 7.  The loan account was used to purchase some £5,000 worth of furniture in respect of which only one instalment of £257.16 was paid.  That matter (obtaining the furniture) is not the subject of any charge.  Then there is a description of the dealings of the applicant and Ms Eddery with the Woolwich Building Society in Putney, including the opening of accounts in the name of Christopher Seaborn and Louise Seaborn.  The evidence is that Woolwich Building Society is owed in excess of £10,000 (charge No. 14).  The narrative continues in like vein to describe transactions entered into by the applicant using the name Christopher Seaborn with numerous suppliers of goods and services.  The descriptions are cross-referenced to statements from named employees of the various organisations involved.  I think it is fair to say that in the last month before the applicant and Ms Eddery departed from London, there is a noticeable increase in the volume and frequency of the transactions which are described in the Statement. 

18                  After the applicant’s departure, Bladon Lines found that ten blank cheques were missing.  They informed their bankers of that fact on 10 July 1991.  However, as set out in paragraph 89 of the Statement, by that date, four of the cheques had been presented beyond redemption to a total value of £16,140.62.  The statements of four persons are incorporated by reference into that paragraph.  One of those persons was Mr Paul James Cox an employee of Barclays Bank PLC.  Mr Cox describes how on 21 June 1991 a man went into the Wandsworth branch of his employer and completed an application form to open a particular type of account in the name of Peter Taylor.  It will be recalled that one of the respondents to the advertisement in the “Fulham Post” was a Mr Peter Taylor who sent all of his particulars to the advertiser who gave his name as Mr Nigel Cunningham.  The cheque, payable to Peter Taylor, in the sum of £5,126.87, was one of the missing cheques drawn on Bladon Lines account.  The cheque having been cleared, £5,000 was withdrawn on 1 July 1991, being the day before the applicant’s disappearance.  Mr Cox’s further evidence is that on 24 June 1991 a man went into the Fulham Broadway branch of his employer and completed an application form to open an identical type of account in the name of Neil Charles Proctor.  Mr Proctor, it will be recalled, was the third of the would-be chauffeurs earlier referred to.  The cheque tendered to open the account at Fulham Broadway was another of the ten cheques which were stolen from Bladon Lines.  It was made payable to N Proctor in the sum of £4,810.02.  On 1 July 1991 (again) £4,700 was withdrawn from that account.  Paragraph 89 of the Statement incorporates by reference a statement from Mr Proctor that he had no involvement with the opening of the bank account in his name and had never seen the cheque for £4,810.02 made payable to him.  He gives evidence in relation to the issue of a duplicate licence in his name which was sent to 56 Putney High Street, Putney, (where Bladon Lines had its offices and flat).  Mr Proctor says that this was not as a result of any application from him and that he did not give anyone permission to apply for a licence in his name.  Mr Cox also describes how on 24 June 1991 a man went into the Barnes branch of his employer and applied to open an identical type of account in the name of Simon Bladon with a cheque for £5,203.93 made payable to “S. Bladon”.  This was another of the ten cheques stolen from Bladon Lines.  Once again almost all of that amount was withdrawn on 1 July 1991.

19                  The remainder of the Statement and the documents incorporated by reference into it include a narration of the following facts:

·          departure of the applicant and Ms Eddery from the United Kingdom on 5 July to Canada and Fiji (where they were married on 12 July 1991) and their arrival in Sydney on 15 July 1991;

·          the movement of their personal effects and property to various places in London and then from London to Australia, and their location at the home of the applicant and his wife in Carine in Western Australia;

·          that the original passport applications made by the applicant and Ms Eddery were obtained from the United Kingdom passport authorities and the passport photographs were produced to employees of Bladon Lines who identified the applicant and Ms Eddery as persons known to them as Stephen Seaborn and his common law wife;

·          that Det Insp Cook and Det Sgt Morrison travelled to Perth to conduct further enquiries and found about 90% of the property alleged to have been stolen, or dishonestly obtained by the applicant, at the applicant’s home;

·          the applicant’s eventual admission to being Stephen McDade, having used the name Steven Seaborn and to having obtained all the property through credit, but that he denied criminality.  From statements incorporated by reference it can be seen that the applicant initially denied being Stephen McDade and said that he was Michael McDade.  (According to the Statement the applicant’s brother Michael McDade pleaded guilty to dishonestly handling computers which were stolen from Bladon Lines and, on 4 July 1991 remitted sterling currency to the equivalent of $19,350 to the applicant’s account at the Commonwealth Bank at Whitford, a suburb of Perth).

20                  I now turn to the four bases upon which the applicant contends the Statement is invalid.

1.         Whether the Statement is invalid because it includes facts or conduct which go beyond what is necessary to establish the offences, or which are irrelevant to the offences?

21                  The applicant submitted that the Statement is invalid because it includes facts and conduct which go beyond those necessary to establish the offences, or are not relevant to the offences.  The applicant contended that to hold otherwise would render the principle of double criminality and the principle of speciality of no practical effect.  In summary, the principle of double criminality requires that an extradition offence be constituted by conduct that would amount to an offence in Australia, or the relevant part of Australia.  The principle of speciality requires that a person surrendered to a requesting State not be tried for any offence, committed prior to surrender, other than that for which extradition was granted, unless the requesting State has first allowed the person adequate opportunity to leave that State again, or the Attorney-General consents.

22                  Mr Aughterson, counsel for the applicant, submitted that unless a statement were so confined, a requesting State could “cook the books”, in two ways.  First, if under its law it was not necessary for a particular ingredient (such as intention, for example) to constitute part of the offence, but it was necessary under Australian law, then that ingredient could be inserted in the statement simply to satisfy the double criminality requirement.  Secondly, if the requesting State were minded to prosecute for other and different charges upon the return of the person, they could “just throw in a few more facts as well to create some other offences not charged” to get around a speciality undertaking.

23                  Authorities which bind me (and with which I respectfully agree), show that a statement does not have to be confined in the manner contended for by the applicant.  In Zoeller the relevant statement was found in certain German warrants.  The appellant contended that those warrants contained factual matters beyond that which would be absolutely necessary to establish each of the German offences.  In rejecting that submission the Full Court said (at 299-300):

“But it does not follow from the adoption of this legislative scheme either that the warrants in the present case are invalid because they contain a statement of facts which goes beyond the facts necessarily constituting the offence in Germany or that the magistrate may have regard only to those facts which are absolutely necessary ingredients of the foreign crime.  The magistrate is no expert in foreign law.  He is not required to determine what the facts are that are the minimum facts necessary to constitute the foreign crime.  That there has been a foreign crime committed is for the purpose of the proceedings before the magistrate proved by the warrant duly authenticated.  What the facts relevant to that crime are is proved by the duly authenticated statement under s 19(3)(c)(ii).  That the offence is an extraditable offence is proved by the s 19(3)(c)(i) document.  All the magistrate is required to do is, by reference to Australian law, to determine whether the conduct referred to in the s 19(3)(c)(ii) statement is an offence under the law of a State or Territory of Australia or Commonwealth law.”

24                  Mr Aughterson made a formal submission that the Full Court in Zoeller stated the principle too broadly.  He said that the Court had departed from earlier authority to the effect that the phrase “conduct constituting the offence” referred to conduct necessary to prove the foreign offence.  As an example of such earlier authority, Mr Aughterson referred to Linhart v Elms at 582.  He said that in Zoeller the Full Court had focussed on the word “alleged” in the definition of “conduct constituting the offence” in s 10(2).  He submitted that the reference in that sub-section to the acts by which the offence “has or is alleged to have, been committed” was merely a reference to the fact that extradition may be sought of a person either charged with or convicted of an offence, and that the words were not intended to effect a departure from the approach adopted under earlier extradition legislation. 

25                  I think that there are two answers to that submission.  First, although Gummow J in Linhart v Elms at p 582 refers to “the essential elements or integers of an offence”, I do not think that his Honour was holding that the relevant statement had to be confined to conduct necessary to prove the foreign offence.  In another Full Court decision, United States of America v Holt (1994) 49 FCR 501 at 504, the Court observed:

“But that does not mean that the magistrate may only have regard to these [presumably “those”] facts which are absolutely necessary ingredients of the foreign crime: Zoeller at 299-300.  Moreover, it is sufficient if part only of the conduct alleged would constitute the notional Australian offence.”

26                  Secondly, the Full Court in Zoeller was well aware of the two types of extradition i.e. in respect of an offence against foreign law or in respect of which a person has been convicted overseas – see the sentence immediately before the sentence at 297 which Mr Aughterson submitted represented a departure from earlier authority, and which I have set out at paragraph 12 above. 

27                  There is other authority to the effect that the relevant statement does not have to be so confined.  In Wiest, one of the appellant’s complaints was that the statement relied upon by the respondent contained additional material from which it was necessary to identify and extract the acts or omissions relied upon.  It is, in my view, clear from Gummow J’s reasons at 519-520 that his Honour rejected that complaint, although he did not expressly say so.  It can be seen from Gummow J’s reasons that his Honour accepted that the warrant of arrest (the relevant statement in that matter) could be read with the certified translation of a judgment of the Local Court at Bonn, not all of which was relied upon.  His Honour accepted that there was a sufficient statement, but added (at 520):

“However, it would have been a far preferable course if there had been set out, or attention otherwise plainly had been drawn to, the particular passages in the judgment upon which reliance was placed, so that it was clear that not all of the judgment was relied upon.  I would seek to discourage in the future the method of presentation of materials adopted in this case.”

28                  From these authorities it would seem that a statement may include facts and conduct which go beyond what is necessary to establish the offences and which may be irrelevant to those offences.  As Gummow J observed in the passage which I have set out at paragraph 6 above, whether a statement satisfies the statutory description is a matter for practical judgment and assessment.  In a given case, it might well be that an overwhelming volume of unnecessary or irrelevant facts could result in such obscurity as to warrant an assessment that the statement did not “set out” the conduct constituting the offence, being the acts by virtue of which the offence is alleged to have been committed.  Those acts might be too far buried beneath irrelevant material to meet the statutory requirement. 

29                  Mr Aughterson took me to various paragraphs in the Statement which he said contained allegations of acts potentially constituting criminal acts but which were not the subject of the present charges and allegations which were, on his submission, irrelevant to the present charges.  I acknowledge that there are paragraphs which appear to fall within such descriptions.  I say “appear” because it will be for an English court to decide whether the acts referred to are acts by virtue of which the offences have been committed.  It may be that what appear to be background facts, amount to acts forming part of the fraud or deception.  Many of the paragraphs identified by Mr Aughterson give background and other information which makes the Statement as a whole clearer than it would be without them.  Rather than obscure the acts by virtue of which the offences are alleged to have been committed, I found that the allegedly superfluous paragraphs made the statement of those acts clearer, for example, by setting them in context. 

30                  In terms of double criminality, my assessment is that the second respondent would have been, if anything, assisted by the material complained of when carrying out his task of deciding whether, if the conduct had taken place in Australia, it would have constituted an offence.  In relation to Mr Aughterson’s “cooking the books” argument, I must acknowledge that there is room for possible abuse by a requesting State in the manner suggested, so as to establish dual criminality.  The example given was the insertion in a statement of facts relevant to intent, where proof of intent was not required under the foreign law, but was required under the law of the relevant part of Australia.  But there are many other ways in which the extradition system might be abused.  Everything in the statement and other supporting documents might be concocted.  The system depends substantially on trust – the speciality undertaking is an example of that.  For a magistrate to detect the insertion of a spurious ingredient in a statement would require him either to have knowledge of the foreign law or be informed on that subject by expert evidence.  The Full Court in Zoeller has made it clear that that is not required of the magistrate.

31                  So far as the speciality principle is concerned, in this case the focus will be on English law.  The United Kingdom will only be able to prosecute the applicant for offences, other than the 18 surrender offences, in respect of which he could be convicted on proof of the conduct constituting any of those surrender offences.  In argument, counsel for the applicant suggested that the application of the speciality principle would be difficult to the extent of being impossible because of the irrelevant material said to be contained in the Statement.  Several times it was submitted that a prosecutor would be able to point simply to the fact that criminal behaviour had been described in the Statement as enabling a further prosecution to be brought.  It would be too difficult, so it was put, to separate the relevant from the irrelevant.  I disagree.  First, as I have mentioned, the task will be an English task, i.e. the application of English law in England to sort out which acts are or were required to be proved so as to constitute the 18 surrender offences according to English law.  The prosecutor will only be able to rely on those facts in relation to the proposed fresh charge, unless the speciality undertaking is to be broken.  An assumption or fear of deceitful abuse by the requesting State is not, in my view, a proper basis for the Statement to be declared invalid.

32                  In my view, the Statement was not rendered invalid by inclusion of facts or conduct which may have gone beyond what was necessary to establish the offences or which were irrelevant to the offences.  Section 19(3)(c)(ii) does not so confine such a statement.

2.         Whether there needs to be a separate statement in relation to each offence?

33                  The applicant next contended that the Statement is defective because it was produced to the second respondent on the basis that it extended to or encompassed all the offences.  The applicant submitted that there must be a separate statement under s 19(3)(c)(ii) in relation to each offence.  The applicant contended that otherwise, in cases such as the present, where the magistrate found that the applicant was eligible for surrender in relation to some but not all of the offences, it would be very difficult, if not impossible to ensure compliance with the principle of speciality.  This was because, so it was put, s 22(4)(d)(ii) of the Act permits a requesting State to prosecute for any offence of which the person “could be convicted on proof of the conduct constituting any surrender offence”.  The applicant argued that it followed that, where there was one statement of the “conduct constituting the offence”, severability would not be possible, other than in the clearest cases.  It would be difficult to impugn a requesting State which relied for a prosecution on any conduct appearing in a statement accepted by an Australian court as being a valid statement of the “conduct constituting the offence”.  Mr Aughterson criticised the Statement as including a great deal of material which was unrelated to the “conduct constituting the offence” and which included speculation and conjecture.  He submitted that it was confusing and difficult to ascertain which part of the narrative related to which offence.  Further, it appeared that certain parts of the narrative referred to more than one offence or included reference to criminal conduct that was not the subject of any of the charges.  In that form, so it was submitted, the Statement greatly prejudiced the rights of the applicant in relation to both double criminality and speciality. 

34                  Counsel for the applicant did not cite any authority for the proposition that there needs to be a separate statement in relation to each offence.  In oral submissions, Mr Aughterson explained that he did not contend that there had to be more than one document.  What was required, so he submitted, was a segregation of the charges.  Otherwise, so he contended, it would be very difficult to establish double criminality and would confuse matters as far as speciality was concerned. 

35                  In view of that concession made by counsel (in my view properly) it is not necessary for me to decide whether there should have been a separate document comprising the relevant statements for each charge.  The question is whether it is necessary to segregate the charges in the Statement i.e. separately to set out the acts or omissions by virtue of which each offence is alleged to have been committed.  I think that to impose such a requirement would be to put a gloss on the statutory provision.  However, I acknowledge that if a particular statement were so badly organised that it was not reasonably possible to discern the acts or omissions relevant to any particular charge, then the document might not constitute a statement setting out the acts or omissions constituting the offences. 

36                  I have examined the Statement in some detail in conjunction with a simultaneous examination of the 18 charges.  I found it relatively easy to identify which paragraphs related to which charges.  There is a slight degree of difficulty in this correlation exercise which I attribute largely to the fact that the Statement is broadly in chronological order, while the charges are not listed in a consistent chronological order.  However, it is relatively easy to relate particular charges to particular paragraphs in the Statement.  For example, charge No 1 (in respect of which, as I have explained above the magistrate has found that the applicant is not eligible for surrender), alleges that the applicant dishonestly obtained for himself a pecuniary advantage, namely the opportunity to earn remuneration in an office of employment, by falsely representing that he was Christopher Seaborn.  Paragraphs 22, 23, 24 and 33 readily identify themselves as “the acts which constitute” that offence (I shall abbreviate that expression to “relate” or “relates”).  Paragraphs 34-37 relate to charge No. 7.  Paragraphs 42-44 relate to charge No. 14.  Paragraphs 26, 27, 28, 108 and 122 relate to charge No 2.  Similarly paragraphs 45-49 can be seen to relate to charge No. 3.  Paragraphs 51 and 52 relate to charge No. 19; paragraph 56 relates to charge No. 16; paragraph 61 relates to charge No. 15; paragraphs 64-67 relate to charge No. 4; paragraph 72-74 relate to charge No. 10; paragraph 75-77 relate to charge No. 9.  Paragraph 78-81 relate to charges Nos. 11, 12 and 13; paragraphs 82-87 relate to charge No. 5.  Paragraphs 92-96 (together with paragraph 99) relate to charge No. 18.  Paragraphs 97-99 relate to charge No. 17.  Paragraphs 88-91 can be seen to relate to charges Nos. 6 and 9.  That is because charge No. 6 involves the use of cheque number 021454 (one of the ten stolen cheques where the payee’s name was N Proctor) and charge No. 9 similarly involves another of the stolen cheques.  Paragraphs 104-106 relate to charge No. 8.  There may be some other paragraphs in the Statement which, under English law, constitute part of the charges.  Some paragraphs, or parts of paragraphs, recite evidence or incorporate evidence by reference as distinct from acts or omissions.  However, the Statement can be seen to identify the acts or omissions which the first respondent relies on as constituting the 18 surrender offences.   It would have enabled (and did enable) the second respondent to apply the double criminality test of assessing whether those acts or omissions amounted to offences in Western Australia.  It will also, in my view, enable the English prosecuting authorities, an English court and any other interested person to assess whether the speciality principle is observed and applied.

37                  In the present matter, it might have been possible to segregate each charge with a heading and then set out the facts relied upon as constituting the charge.  This might have involved a considerable degree of repetition, because many facts were relevant to more than one charge.  The method adopted in the Statement, namely a broadly chronological approach, provides, in my opinion, sufficient clarity for the purposes of the principles of double criminality and speciality.  In that regard I refer to paragraphs 29 to 34 of these reasons.

3.         Whether the statement was invalid because it was not “self-sufficient”?

38                  The third broad complaint was that a statement under s 19(3)(c)(ii) should be self-sufficient.  The Statement was not self-sufficient, so it was submitted, in that it was required to be read with other documents which were sought to be incorporated by reference in it.  I shall accept, for the purposes of the argument but without deciding, that the Statement is not self-sufficient and has to be read with other documents which were sought to be incorporated by reference in it.  The Act does not say that a statement may not incorporate the contents of other documents by reference.  In my view, provided that those other documents are clearly identified and that reading them as part of the statement does not result in the obscurity referred to above, such a statement would not be invalid.  In my view, that test is satisfied in this matter.  Furthermore, the authorities are very much against this submission.  I refer to the Full Court in Wiest at 519-520.  See also Sheppard J in Zoeller v Federal Republic of Germany (1988) 19 FCR 64 at 85.  In Unkel v DPP (1990) 95 ALR 44 at 45, 49 and 50 it can be seen that the relevant statement was found in more than one document.  For those reasons and on the basis of those authorities, I find that the Statement is not invalid on this ground.

4.         Certain further specific defects alleged in relation to the Statement

39                  There were eight such specific defects  They related to particular charges.  I shall summarise them and deal with them individually as follows:

(i)     There are many allegations made in the Statement, which, in the light of certain of the offences charged, potentially constitute criminal acts and which are not the subject of the present charges.  The applicant says that this has “obvious serious consequences” for him as it would enable the United Kingdom, in reliance on the Statement, to charge him with numerous offences which fall outside the extradition request, thus rendering nugatory the speciality principle.

40                  In my view, this falls within the first of the complaints above.  To the extent that the paragraphs in the Statement, to which the applicant refers, set out conduct which does not constitute any of the surrender offences, then the speciality principle will apply.  As I have stated above, the mere mention of criminal acts does not enable a requesting State to bypass the speciality undertaking.  The exception to the undertaking refers to offences of which the eligible person could be convicted on proof of the conduct constituting any surrender offence.  If, as the applicant alleges, the Statement goes beyond that conduct, then the exception to the undertaking will not apply.

(ii)            The Statement was inadequate for the purposes of the principle of double criminality, for example by not containing in it a statement as to the required dishonesty – see charges Nos. 3 and 16.  In relation to charge No. 16, the magistrate relied upon a deposition from a Mr Hutley but, so the applicant submitted, for the purposes of the principle of double criminality the Statement should have been self sufficient;

41                  I have already held, consistently with the authorities, that the Statement does not have to be self-sufficient.  My reasoning above in that regard is sufficient to dispose of these particular objections. 

(iii)          There are inconsistencies between certain charges and the facts in the Statement.  For example, charge No. 10 specifies four cameras, one pair of binoculars, one portable cassette/radio and one colour monitor together valued at £1,139.94.  Paragraph 74 of the Statement refers to “two cameras and two pairs of binoculars” together valued at £1,139.94;

42                  It is to be noted that paragraphs 72-74 of the Statement incorporate by reference the statement of Mr Simon Buckingham.  I have already held that such a statement may be read as part of a statement for the purposes of s 19(3)(c)(ii) of the Act.  When one has regard to the precise coincidence of the value of the goods, £1,139.94 as set out in paragraph 74 of the Statement, in charge No. 10, as stated in Mr Buckingham’s affidavit and as shown in Exhibit 61 to that affidavit (being the invoice prepared by Mr Buckingham which he swears listed the property he handed to Christopher Seaborn) it is, in my view, sufficiently clear that the same property is described in the Statement and is the subject of the charge.  When the three documents are read together there is no inconsistency.  The Statement, in my opinion, adequately sets out the conduct constituting the offence.

(iv)          In relation to what appears to be part of the Statement relating to charge No. 9, there is no statement that the cheque was presented by the applicant.  In fact, at paragraph 75 of the Statement it is stated that “No details of who presented the cheque are available as the counter assistant who took the orders has been dismissed for dishonesty and cannot now be traced”.

43                  As I see it, the problem with this submission is that it overlooks the paragraphs elsewhere in the Statement, to which I have referred above, relating to the stolen cheques.  The cheque referred to in charge No. 9 (cheque numbered 021458) is identified in Mr Cox’s affidavit as being one of the ten stolen cheques.  In any event the charge is that the applicant represented that that cheque was a good and valid order for payment.  Ms Brett, in her affidavit, swears that what purports to be her signature on cheques which include cheque number 021458 is not hers.  When regard is had to Mr Cox’s evidence, summarised above, in respect of four of the other cheques in the same series, and to the evidence that Mr Proctor’s replacement driving licence, which had been forwarded to 56 Putney High Street, was used to open one of the relevant bank accounts, the facts emerging from the Statement as a whole point to the conclusion (expressed in charge No. 9) that the person who presented cheque number 021458 was the applicant.

(v)      In relation to charges Nos. 11 to 13, there is no direct correlation between the money amounts referred to, nothing in the Statement to suggest that the orders were improperly made, or that the goods in question were obtained by the applicant.  In fact at paragraph 80 it is stated that the goods “were both signed for by C Louden at Blandon Lines”;

44                  As to the improper making of the orders, Ms Brett deposes to the fact that the applicant was not given authority to order any goods other than certain stationery requirements.  Her statement is incorporated by reference in paragraph 78.  Mr Jonathan Anders’ statement is also incorporated by reference in the same paragraph.  Exhibit JVA/4 to Mr Anders’ affidavit identifies the goods referred to in charge No. 11 and confirms their value as stated in that charge.  The particular equipment identified in charge No. 12 is described in Exhibit JVA/6 to Mr Anders’ affidavit.  It would seem that the wrong value has been inserted in this charge.  The correct value can be seen in Exhibit JVA/6, namely £920.  The items described in charge No. 13 coincide precisely with the items set out in Exhibit JVA/2 to Mr Anders’ affidavit .  As to whether the goods were obtained by the applicant, paragraphs 119 and 120 of the Statement refer to the search made at the applicant’s premises in February 1993 and the fact that about 90% of the property which the applicant is alleged either to have stolen or dishonestly obtained was found in his house.

(vi)     The Statement does not appear to deal with charge No. 6 at all;

45                  Charge No. 6 relates to the sum of £4,700 obtained by opening the account at Barclay’s Bank Plc, Fulham Broadway with cheque number 021454 payable to Mr N Proctor.  The facts constituting this offence are to be found in paragraphs 88-89 of the Statement when read with Mr Cox’s affidavit and paragraphs 15, 16, 17 and 18 of Mr Proctor’s affidavit.

(vii)    In relation to charge No. 7, the applicant says that it is apparent from the Statement, that, at least in part, the alleged criminal conduct was not undertaken by the applicant – see paragraph 36 of the Statement;

46                  Paragraph 36 of the Statement reads:

“Interesting to note that out of the above total of £1,062.89 pence, £891.73 pence worth of goods were purchased and signed for by Louise EDDERY signing as L. SEABORN.”

If that fact is not part of the conduct constituting the offence, its irrelevance does not invalidate the Statement. 

(viii)   In relation to charge 16, paragraph 56 of the Statement refers to certain alleged conduct on 7 May 1991 whereas charge 16 refers to an offence allegedly committed on 7 June 1991.

47                  It is clear from the Statement that paragraph 56 relates to charge No. 16.  What is described in that paragraph is the applicant’s application for the credit facilities concerned.  Mr Robert Keith Hutley, security manager for Makro (the supplier involved) swears that his company received an application bearing the stamp of Bladon Lines Travel and a signature C. Seaborn.  He exhibits that to his affidavit.  Mr Hutley [whose surname (but not his Christian names, job description or employer) is wrongly described as “Huddle” in paragraph 59 in the Statement] then deposes to the fact that the credit facilities were granted on 7 June 1991, being the date first referred to in charge No. 16.  Mr Hutley deposes to goods being supplied under those credit facilities between 7 June 1991 and 1 July 1991.  There is no inconsistency between the dates.  Paragraph 59 asserts the date when credit was applied for.  The dates in the charge and in Mr Hutley’s affidavit are the dates when the credit facilities were granted (7 June 1991) and the dates between which they were used.

Conclusion

48                  For the above reasons, I do not consider that the applicant has made out its challenge to the validity of the Statement as being a duly authenticated statement in writing setting out the conduct constituting the offences alleged to have been committed.  In respect of several of the charges, the Statement satisfies that description on its own.  In relation to the remainder, when read with the documents which it incorporates by reference, it also so complies.  The application will be dismissed with costs.

Associate:

Dated:              24 September 1999