FEDERAL COURT OF AUSTRALIA

McDade v United Kingdom [1999] FCA 1868

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), s 10(2), s 19(2)(a) and (c), s 19(3)(c)(ii)

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

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

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

Linhart v Elms (1988) 81 ALR 557 referred

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

De Bruyn v Republic of South Africa [1999] FCA 1344 followed

Unkel v Director of Public Prosecutions (1990) 95 ALR 44 referred

Riley v Commonwealth (1985) 159 CLR 1 cited

Government of Canada v Aronson [1990] 1 AC 579 discussed

Aughterson, Extradition: Australian Law and Procedure (1995)

STEPHEN GERARD McDADE v THE UNITED KINGDOM & ANOR

W 103 of 1999

FRENCH, MARSHALL and KENNY JJ

PERTH

23 DECEMBER 1999

THE COURT ORDERS THAT:

1.      The appeal be dismissed.

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

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

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

REASONS FOR JUDGMENT

FRENCH J:

1                     This appeal was based upon three main issues related to the question whether the requirements of s 19(3)(c) of the Extradition Act 1988 (Cth) had been met for the provision to the magistrate of a duly authenticated statement in writing setting out the conduct constituting the offences for which extradition was sought.  The three issues were:  (1) whether the inclusion of reference to conduct over and above that conduct constituting the offences constituted a non-compliance with the section; (2) whether it was reasonably possible to discern from the statement the conduct, that is, the acts or omissions said to constitute each of the offences; and (3) whether the statement could validly incorporate by reference the contents of other documents.

2                     The conclusions of the learned primary judge addressed the substance of the requirements of the Act in relation to a supporting statement.  As a matter of substance in response to each of these issues, which go largely to form, he has found the statement met the requirements of the Act, that is, set out the conduct constituting the offences.  I agree for the reasons given by Kenny J that this appeal should be dismissed.

Associate:

Dated:              11 January 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

REASONS FOR JUDGMENT

MARSHALL J:

3                     I agree with Kenny J that the appeal should be dismissed and I agree with her Honour's reasons for so holding.

Associate:

Dated:              11 January 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

REASONS FOR JUDGMENT

KENNY J: 

4                     This is an appeal from a decision of a judge of the Court, dismissing an application under s 21(1) of the Extradition Act 1988 (Cth) (“the Act”) for a review of a decision of a magistrate.  His Honour’s judgment is now reported in (1999) 166 ALR 683.  The magistrate’s decision, made pursuant to s 19(9) of the Act, was that the appellant, Stephen Gerard McDade, is eligible for surrender to the United Kingdom.  The United Kingdom has sought his extradition in relation to 18 offences contrary to ss 1 and 15 of the Criminal Law Act 1977 (UK).  The offences charged under s 1 of that Act are those of stealing and dishonestly obtaining or attempting to obtain various items of property, banking and credit facilities and, under s 15, dishonestly obtaining various items of property or cash with the intention of permanently depriving by deception.

5                     The question raised by the appeal is whether a statement was produced to the magistrate that complied with s 19(3)(c)(ii) of the Act.

6                     In July 1991, the appellant, who was born in Scotland on 8 March 1958, his wife and two young children emigrated from the United Kingdom to Australia, having obtained the necessary immigration approval a year earlier.  On 9 August 1994, a warrant for the appellant’s arrest was issued by a Justice of the Peace for the Inner London Area in respect of 23 proposed charges.  On 9 September 1994, the British High Commission in Canberra issued a Diplomatic Note, No. 58, seeking the appellant’s extradition to the United Kingdom.  On 20 April 1997, the Attorney-General of the Commonwealth of Australia gave a notice under s 16 of the Act stating that the extradition request had been received.  On 9 June 1997, a magistrate in Perth issued a warrant for the appellant’s arrest pursuant to s 12(1) of the Act.

7                     The appellant first appeared before the Court of Petty Sessions in Perth on 10 June 1997.  After a number of remands or adjournments, the second respondent (“the magistrate”) conducted proceedings on 1 and 2 February 1999 in order to determine whether the appellant was eligible for surrender.  On 5 February 1999, his Worship determined that the appellant was eligible for surrender in relation to 18 of the 23 offences relied on by the United Kingdom.

8                     A question arose before the magistrate as to whether the statement of Detective Inspector David Cook of the London Metropolitan Police Service (“the Statement”) satisfied the requirements of s 19(3)(c)(ii) of the Act.  Relevantly to this appeal, the magistrate was so satisfied.  There was no suggestion that there was any other document that might meet those requirements.

9                     On 11 February 1999, the appellant lodged an application under s 21(1) of the Act for a review of the magistrate’s decision upon the ground that his Worship erred in ruling that the Statement was sufficient for the purposes of s 19(3)(c)(ii) of the Act.  That application was dismissed on 24 September 1999.  At first instance, the learned primary judge was satisfied that the Statement was a duly authenticated statement in writing setting out the conduct constituting the offence as required by s 19(3)(c)(ii) of the Act.  His Honour’s decision is the subject of this appeal.  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.  Those documents must include a document of the kind described by s 19(3)(c)(ii) of the Act.  Sections 19(1), (2) and (3)(c)(ii) of the Act relevantly provide:

(1)    Where:

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

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

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

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

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

(2)    For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:

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

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

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

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

(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

(c)      in any case:

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

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

Section 10(2) provides 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.

10                  The form and contents of the Statement, which consist of some 19 pages and some 126 numbered paragraphs, are set out in some detail in the decision of the primary judge.  It is sufficient now to refer simply to the description given at pars 14 to 19 of his Honour’s reasons for judgment.  The appellant does not contend that there is any error in that description and, in any event, reference to the Statement, which was before us, confirms that there was none.

11                  The appellant’s case at first instance and on appeal was that the Statement fails to comply with s 19(3)(c)(ii) of the Act because:

(1)    The Statement includes facts or conduct which go beyond what is necessary to establish the offences, or which are irrelevant to the offences and, in consequence, it is impossible to ensure that the double criminality and the speciality requirements of the Act are not breached.

(2)    For the same reason, the Statement is invalid because it fails to segregate or separately to set out the acts or omissions by virtue of which each offence is alleged to have been committed.

(3)    The Statement is not “self-sufficient” in that it is incapable of standing on its own, without reference to other documents.

At first instance, the appellant also alleged that there were some eight other specific defects in the Statement.

12                  The primary judge rejected each of the appellant’s submissions.  Referring to Zoeller v Federal Republic of Germany (1989) 23 FCR 282 (“Zoeller”), United States of America v Holt (1994) 49 FCR 501 (“Holt”), Wiest v Director of Public Prosecutions (1988) 23 FCR 472 (“Wiest”), and Linhart v Elms (1988) 81 ALR 557, his Honour held, at par 32 of his reasons, that:

[T]he 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.

As to the second ground relied on by the appellant, his Honour said at pars 35 and 36:

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. 

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.

His Honour concluded at par 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.

The primary judge further held, at par 38, that a statement would not fail to meet the statutory requirements of s 19(3)(c)(ii), simply because it fell to be read in conjunction with other documents incorporated by reference to it, “provided that those other documents are clearly identified and that reading them as part of the statement does not result in … obscurity”.  In relation to the other alleged specific defects, some were dealt with by his Honour’s dismissal of the first three grounds, whilst others were dismissed on the basis that, having regard to the entirety of the Statement and the evidence, there was sufficient clarity in the Statement to amount to compliance with s 19(3)(c)(ii) of the Act.

13                  The only question on this appeal is whether the Statement is “a duly authenticated statement in writing setting out the conduct constituting the offence” within the meaning of s 19(3)(c)(ii) of the Act.  If so, it is accepted by the appellant that the requirements of s 19(2)(a) have been met. 

14                  What is intended by the expression “the conduct constituting the offence”?  The answer depends in part on the purpose properly served by the s 19(3)(c)(ii) requirement.  That depends, in turn, on the tasks that a magistrate must perform under s 19 of the Act.  Those tasks are principally (1) determining whether, to the magistrate’s satisfaction, the double criminality requirement of s 19(3)(c)(ii) is satisfied; (2) determining, to the magistrate’s satisfaction, that there is no extradition objection (as defined in s 7 of the Act); and (3) having regard to (1) and (2) (amongst other things), determining whether the person the subject of the proceeding is eligible for surrender in relation to the extradition offence or offences for which surrender is sought.  As the Full Court of this Court observed in Holt at 504-5:

1.      The magistrate does not have to be satisfied that the “conduct constituting the offence” as set out in the s 19(3)(c)(ii) statement constitutes the foreign offence described in the s 19(3)(c)(i) statement:  Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 299-300; Unkel [v Director of Public Prosecutions (1990) 95 ALR 44] at 49.

2.        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 would constitute an offence under the law of a State or Territory of Australia or Commonwealth law that is punishable by not less than 12 months imprisonment:  Zoeller at 299-300.

3.        In so doing the magistrate is confined to the material adduced on behalf of the country requesting extradition.  But that does not mean that the magistrate may only have regard to these 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:  s 10(2) and (3).

4.        The “offence” referred to at the conclusion of s 11(5)(b) is the notional Australian offence, that is to say the “extradition offence” which the conduct of the person would have constituted had it taken place in Australia, within the meaning of s 19(2)(c).  The “offence” at the conclusion of s 11(5)(b) refers back to “an offence” in s 5(a)(i), (ii) and (iii):  Unkel at 49-50.

5.        The evidence must comply with Australian law:  Commonwealth v Riley (1984) 5 FCR 8 at 33.  In particular, hearsay material will be rejected.  However evidence will not be inadmissible merely because it does not comply with local practices, eg those which require the use of direct speech or exclude evidence expressed in terms of a conclusion not specifically indicating an observation of the witness:  Riley at 34.

6.        If evidence is received by the magistrate without objection, it is not open to the Court on review under s 21 of the Act to entertain a complaint about that evidence:  Zoeller at 292-293.

15                  The provision of a statement setting out the conduct constituting the offence is designed to assist the magistrate in the performance of the tasks which the magistrate is charged to perform by virtue of s 19 of the Act:  see Todhunter v United States of America (1995) 57 FCR 70 (“Todhunter”) at 90 and Zoeller at 300.  Presumably, too, the statement is designed to assist the Attorney-General in making any subsequent determination.  See, for example, s 22(3)(d) and Wiest at 519 per Gummow J. 

16                  As already noted, in requiring a statement setting out “the conduct constituting the offence”, s 19(3)(c)(ii) requires a statement of the “acts or omissions” which are said to make up the offence in the requesting State:  see s 10(2).  A simple definition of the offence will not suffice:  see De Bruyn v Republic of South Africa [1999] FCA 1344 at par 8 per Hill and Hely JJ referring to the observation of Pincus J in Unkel v Director of Public Prosecutions (1990) 95 ALR 44 at 49.  The relevant “acts or omissions” are the elements or ingredients of the offence, and not the particular evidence that is supposed to prove them: see Wiest at 519 and Zoeller at 294.  (It is not, however, the magistrate’s task to determine whether the conduct is in fact criminal under the law of the requesting State.)  What is being sought is a clear and coherent statement of the actual acts and omissions which are said to constitute the offence.  The statement must “speak with sufficient specificity” and coherence to serve its purpose:  see Linhart v Elms at 583 per Gummow J and Wiest at 483 per Sheppard J.  The statement must be such as to permit the magistrate charged with conducting proceedings under s 19 to be satisfied, one way or the other, as to whether the conduct said to constitute the offence in the extradition country or the equivalent conduct, would constitute an extradition offence had it taken place in that part of Australia where the proceedings are being conducted:  see Todhunter at 90, citing Riley v Commonwealth (1985) 159 CLR 1 at 18-19 per Deane J, and De Bruyn at par 7 per Hill and Hely JJ.

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

18                  Turning to the specific grounds raised by the appeal, I deal first with the “no extraneous facts” ground. 

19                  At first instance, the appellant, who was at that stage represented by counsel, submitted that, unless the statement were confined to the facts necessary to establish the extradition offence or offences, an extradition country would readily be able to circumvent the double criminality and speciality requirements imposed by the Act:  see, for example, s 19(2)(c) and s 22(3)(d).  The primary judge set out that submission at par 22 of his reasons.  He said:

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 a person, they could “just throw in a few more facts as well to create some other offences not charged” to get round a speciality undertaking.

That submission was also reflected in the grounds of appeal set out in the notice of appeal. 

20                  Whilst acknowledging that the submission had some force, the primary judge held that a statement does not fail to comply with s 19(3)(c)(ii) merely because it contains facts that are additional to the minimum facts necessary to constitute the extradition offence or offences.  In light of the Full Court’s decision in Zoeller and in Holt that conclusion is plainly correct.  In Zoeller, the Full Court said, at 299-300:

[I]t 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 German 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. 

Accordingly it is our view that the magistrate was entitled to consider the statement of facts in each warrant in determining whether offences were committed under Australian law.

The Full Court in Holt adopted much the same approach: see 49 FCR at 504. 

21                  In support of his submissions before the primary judge, the appellant relied upon Government of Canada v Aronson [1990] 1 AC 579, but that decision has been held to be inapplicable in an Australian context by reason of relevant differences in English and Australian statutory provisions:  see Zoeller at 296-297.  The appellant also referred the primary judge to the criticism of the approach in Zoeller and in Holt advanced by Aughterson in Extradition: Australian Law and Procedure (1995) at pp 67-69.  (I note that Mr Aughterson was counsel for the appellant at first instance.)  Although the criticism was noted by the Court in De Bruyn, it did not lead the majority (Hill and Hely JJ) to adopt a different approach:  see De Bruyn at pars 9 and 10.  I, too, find no occasion to depart from Zoeller and Holt. 

22                  It is, of course, possible that the inclusion of extraneous facts in a statement supposedly made in conformity with s 19(3)(c)(ii) may render the statement so confused or misleading that it cannot fulfil its statutory purpose:  see, for example, Wiest at 520 per Gummow J.  The primary judge plainly recognised that possibility at par 28 of his reasons, observing that:

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.

When read as a whole, however, the Statement, in my opinion, clearly sets out the alleged conduct which, if proven, would constitute the relevant extradition offences.  Whilst it is true that the Statement includes some matters which, if proven, might establish some uncharged offences, their inclusion does not, in my opinion, render the Statement confusing or misleading in any relevant way.  Indeed, many of those additional matters provide the context in which the case alleged against the appellant is said to arise and assists the reader, I think, in understanding what is alleged by the United Kingdom.

23                  Before the appellant can be surrendered, the Attorney-General must be satisfied that the extradition country has given a speciality assurance:  see s 22(3)(d) of the Act.  Mr McDade submitted that it would be open to the prosecuting authorities in England to charge him with any offence arising out of the facts in the Statement.  That is simply not correct.  The speciality assurance which has been provided by the British High Commission prevents Mr McDade from being charged with anything other than:

(i)                 any surrender offence;

(ii)               any offence (being an offence for which the penalty is the same or is a shorter maximum period of imprisonment or other deprivation of liberty) of which [he] could be convicted on proof of the conduct constituting any surrender offence;

(iii)             any extradition offence in relation to the United Kingdom (not being an offence for which the United Kingdom sought [his] surrender in proceedings under section 19) in respect of which the Attorney-General consents to [his] being so detained or tried. 

It will be for English courts to determine the elements of the surrender offences, and, if it should prove relevant, the offences in respect of which Mr McDade could be convicted on proof of conduct constituting any of the surrender offences. 

24                  It follows that I do not accept the appellant’s submission in respect of the no extraneous material ground.

25                  As to the alleged failure to segregate in the Statement the acts and omissions relied on for each offence, I note that, at first instance, counsel conceded that s 19(3)(c)(ii) does not require a separate document for each extradition offence relied on by the extradition country.  That concession was, in my opinion, rightly made. 

26                  At first instance, it was submitted on behalf of the appellant that the Statement failed to conform to s 19(3)(c)(ii) because it failed to segregate, in the sense of set out separately, each of the acts and omissions by virtue of which each extradition offence is alleged to have been committed. 

27                  There is, I think, no such requirement.  What is required is, as I have said, a clear and coherent statement of the actual acts and omissions that are said to constitute the relevant offences.  Certainly, the statement must speak with sufficient specificity to permit the magistrate charged with conducting proceedings to discharge the tasks required of him, but, in my opinion, it may do so without setting out separately and repetitively each act and omission relied on in relation to each offence.

28                  I agree with the primary judge that in this case it is not difficult to relate each charge to that part of the Statement which narrates the relevant alleged conduct.  On reading the Statement, it is apparent that it readily permitted the magistrate to discharge his statutory tasks, including his task under s 19(2)(c) of the Act.  The separate statement of the acts and omissions ground also fails.

29                  The notice of appeal also raised the failure of the Statement to be self-sufficient.  The appellant submitted at first instance – and the submission reappears as a ground of appeal in the notice of appeal – that the Statement failed to conform to s 19(3)(c)(ii) because it incorporated, by a reference, certain other documents that were required to be read with it.  I do not think that there is any merit in that submission. 

30                  Section 19(3)(c)(ii) requires a “statement in writing” of relevant matters.  Nothing in the Act expressly requires the statement to be contained in only one document.  There is, it seems to me, no justification in principle or in practice for any such requirement.  Indeed, the Court has accepted that a statement for s 19(3)(c)(ii) purposes may be constituted by a number of documents:  see Wiest, especially at 519-520 per Gummow J and De Bruyn.  The critical factor is that, collectively, the documents constitute a duly authenticated statement in writing of the relevant acts and omissions, being acts and omissions which are readily and clearly identifiable by reference to those documents.

31                  At first instance, there were a number of other alleged defects and inconsistencies in the Statement.  They were not specifically raised in the notice of appeal and, for the reasons advanced by the primary judge, they do not affect, in my view, the validity of the Statement.  I have carefully examined the Statement and the documents which it incorporates.  I am of the view the Statement sets out with sufficient particularity and clarity the acts and omissions said to constitute the relevant extradition offences.  I am, of course, mindful of the seriousness of the extradition process and its consequence for Mr McDade.  Making a practical assessment of the Statement, I am, for the reasons given, unable to find any error in the decision of the primary judge.  For the reasons given, the appeal should be dismissed.

Associate:

Dated:              11 January 2000