FEDERAL COURT OF AUSTRALIA
O'Donoghue v Ireland [2009] FCA 618
Extradition Regulations (Cth): reg 3,
Criminal Code (WA): s 7, s 7(d), s 371, s 371(1), s 376, s 378, s 409, s 409(1),
s 409(3)
Criminal Code (Qld): s 427(1)
Larceny Act 1916 (Ireland): s 20(1)(iv)(a), s 32(1)
Larceny Act 1990 (Ireland) s 9
Ministers and Secretaries Act 1924 (Ireland)
Extradition (Ireland) Regulations (Ireland) reg 5
Cabal v United Mexican States (No 3) (2000) 186 ALR 188
DeBruyn v Republic of South Africa (1999) 96 FCR 290
Griffiths v United States of America (2005) 143 FCR 182
Harris v Attorney General of the Commonwealth (1994) 52 FCR 386
Kainhofer v Director of Public Prosecutions (No 2) (1996) 70 FCR 184
McDade v The United Kingdom [1999] FCA 1868
Parker v The Queen (1997) 186 CLR 494
Timar v Republic of Hungary [1999] FCA 1518
Truong v The Queen [2004] HCA 10; 223 CLR 122
Vasiljkovic v Commonwealth [2006] HCA 40; 227 CLR 614
Wiest v Director of Public Prosecutions (1988) 23 FCR 472
Zoeller v Federal Republic of Germany (1989) 23 FCR 282
VINCENT THOMAS O'DONOGHUE v IRELAND and GRAEME NEIL CALDER
WAD 46 of 2009
BARKER J
9 JUNE 2009
PERTH
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IN THE FEDERAL COURT OF AUSTRALIA |
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WESTERN AUSTRALIA DISTRICT REGISTRY |
WAD 46 of 2009 |
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VINCENT THOMAS O'DONOGHUE Applicant
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AND: |
IRELAND First Respondent
GRAEME NEIL CALDER Second Respondent
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JUDGE: |
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DATE OF ORDER: |
9 JUNE 2009 |
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WHERE MADE: |
PERTH |
THE COURT ORDERS THAT:
1. The application for review is dismissed.
2. The applicant to pay the respondent's costs to be taxed, if not agreed.
3. The Court determines that Vincent Thomas O'Donoghue is eligible for surrender, within the meaning of subs 19(2) of the Extradition Act 1988 (Cth) in relation to the following extradition offences:
- 8 counts of fraudulent conversion contrary to s 20(1)(iv)(a) of the Larceny Act 1916 (Ireland); or in the alternative
- 8 counts of obtaining property by false pretences contrary to s 32(1) of the Larceny Act 1916 (Ireland).
4. The order made by the second respondent pursuant to s 19(9) of the Extradition Act 1988 (Cth) on 3 April 2009 ought to be confirmed by order pursuant to s 21(2)(a) of the Extradition Act 1988 (Cth).
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
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IN THE FEDERAL COURT OF AUSTRALIA |
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WESTERN AUSTRALIA DISTRICT REGISTRY |
WAD 46 of 2009 |
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BETWEEN: |
VINCENT THOMAS O'DONOGHUE Applicant
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AND: |
IRELAND First Respondent
GRAEME NEIL CALDER Second Respondent
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JUDGE: |
BARKER J |
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DATE: |
9 JUNE 2009 |
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PLACE: |
PERTH |
REASONS FOR JUDGMENT
Magistrate's decision
1 On 3 April 2009, Magistrate GN Calder, sitting in the Western Australian Magistrates Court at Perth, determined, pursuant to s 19(2) of the Extradition Act 1988 (Cth) (the Act), that the applicant, Vincent Thomas O'Donoghue, is an eligible person for surrender for extradition to Ireland in relation to the extradition offences of obtaining property by false pretences (8 counts) and fraudulent conversion (8 counts).
Review application
2 By application, dated 3 April 2009, the applicant seeks review of the Magistrate's decision pursuant to s 21(1) of the Act.
3 By s 21(2) of the Act the Court following review may by order confirm the order of the Magistrate or quash the order and direct the Magistrate to order the release of the person (in the case of an order under subs 19(9), or order by warrant in the statutory form, that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subs 22(5), in the case of an order under subs 19(10)).
4 In conducting a review the Court shall have regard only to the material that was before the Magistrate: s 21(6)(d) of the Act.
5 It follows from these provisions that the review in this Court is in the nature of a rehearing limited to the materials that were before the Magistrate. In other words, the review is not a fresh hearing at which new materials or evidence can be introduced.
6 The applicant submits that upon the rehearing, the Court should find that the documents produced by Ireland to support its extradition request fail to identify conduct on the part of the applicant sufficient to:
• meet the requirements of s 19(3)(c)(ii) of the Act; and/or
• properly satisfy the Court that it or equivalent conduct constituted an extradition offence in Western Australia.
7 As a consequence the applicant submits the Court should quash the order of the magistrate and order his release.
Extradition request
8 As explained by the Full Federal Court in Harris v Attorney General of the Commonwealth (1994) 52 FCR 386 at 389, in summary form the scheme of the Act leading to extradition is as follows:
The commencement of proceedings is by the issue of a provisional warrant under s 12(1) or by the giving of a notice under s 16(1). Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19. Where a person is on remand under s 15 and the Attorney-General has given a notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender. If eligibility is so determined by the magistrate, provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered.
9 In this case a warrant for arrest under subs 12(1) of the Act and reg 3 of the Extradition Regulations was issued on 21 December 2004 for the arrest of the applicant.
10 The warrant was issued on the application made in the statutory form on behalf of Ireland, an extradition country for the purposes of the Act. That application alleged that the applicant is an extraditable person for the purposes of the Act in relation to Ireland.
11 On 5 January 2005, the Hon Philip Maxwell Ruddock MP, Attorney‑General for the Commonwealth of Australia signed a Notice of Receipt of Extradition Request (Notice) under the Act addressed to the Magistrate before whom the person named in the Notice is brought. That Notice was issued by the Attorney‑General under subs 16(1) of the Act and stated that an extradition request had been received from Ireland in relation to the applicant for the following extradition offences:
• 8 counts of obtaining property by false pretences contrary to s 32(1) of the Larceny Act 1916 (Ireland).
• 8 counts of the alternative charge of fraudulent conversion contrary to s 20(1)(iv)(a) of the Larceny Act 1916 (Ireland);
12 The Extradition (Ireland) Regulations made 13 March 1989 by reg 5 provides that the Act applies in relation to Ireland subject to the Treaty on Extradition (Treaty) between Australia and Ireland done at Dublin on 2 September 1985 (being the treaty a copy of the text of which is set out in the Schedule).
13 Article V of the Treaty provides by paras 2(a), (d) and (e) that:
2 A request for extradition emanating from Ireland shall be supported:
(a) if the person is accused, or has been convicted in his absence, of an offence by a warrant for the arrest or a copy of the warrant for the arrest of the person, a statement of each offence for which extradition is sought and a statement of the acts or omissions which are alleged against the person in respect of each offence:
(d) in all cases, by a copy of the relevant provisions of the statute, if any, creating the offence or a statement of the relevant law as to the offence, including any law relating to the limitation of proceedings, as the case may be, and in either case a statement of the punishment that can be imposed for the offence: and
(e) in all cases, by information or documents which will help to establish that the person whose surrender is sought is the person accused of or convicted of the offence.
14 In this case, the First Secretary of the Embassy of Ireland in Canberra, being an officer in and of Ireland, provided with the relevant request a certificate which certified that documents attached to the certificate had been prepared in support of a request by Ireland for the extradition from Australia of the applicant, an Irish citizen, in order that he may be dealt with by the Irish Courts in accordance with law.
15 The certificate itself was signed and sealed at Dublin on 12 May 2004 by a person authorised by law to authenticate the Seal of the Minister for Foreign Affairs of Ireland pursuant to the Ministers and Secretaries Act 1924 (Ireland).
16 In particular the certificate had attached documents in purported compliance with the requirements of paras 2(a), 2(d) and 2(e) of Art V of the Treaty.
17 The documents attached for the purposes of Art V para 2(a) of the Treaty included:
• Certified copy of each arrest warrant for the applicant.
• Statement of each offence.
• Statement of the facts of the case.
18 The First Secretary of the Embassy of Ireland in Canberra, being an officer of Ireland, provided a further certificate and documents relevant to the extradition request. The documents attached to this certificate included a certificate of the person authorised by law to authenticate the Seal of the Minister for Foreign Affairs of Ireland dated 23 December 2004. It also included the following:
• Statement pursuant to Art V of the Treaty on Extradition between Australia and Ireland made by a solicitor and professional officer in the Office of the Director of Public Prosecutions, Ireland.
• Warrants for the arrest of the applicant in relation to the offences of fraudulent conversion which were attached to the statement and marked A, B, C, D, E, F, G and H.
• Copies of further eight warrants for the arrest of the applicant in relation to the offences of obtaining property by false pretences were attached to the statement and marked I, J, K, L, M, N, O and P.
19 By further certificate of the First Secretary of the Embassy of Ireland in Canberra, being an officer of Ireland, further documents were supplied in support of the request for the extradition of the applicant by Ireland. These documents included a certificate signed by a person authorised by law to authenticate the Seal of the Minister for Foreign Affairs of Ireland, dated 3 August 2005. The documents also included a further statement pursuant to Art V of the Treaty made by the same solicitor and professional officer in the Office of the Director of Public Prosecutions in Ireland.
STATEMENT OF ACTS OR OMISSIONS ALLEGED
20 The statements and warrants provided by Ireland pursuant to Art V of the Treaty in support of their request for extradition may be conveniently summarised as follows.
21 First, it is important to note that the warrants referred to above reflect a primary charge and in effect an alternative charge in respect of particular conduct.
22 Warrant A and warrant I are concerned with the same conduct, namely the dealing by the applicant with an Irish Permanent cheque number 555153 payable to Barry J Redmond in the sum of £4,000.00 on 25 November 1998. Warrant A alleges that the applicant converted that cheque to his own use or benefit, contrary to s 20(1)(iv)(a) Larceny Act 1916 as amended by s 9 of the Larceny Act 1990 (Ireland) when it was entrusted to Property World by Barry J Redmond to put as a deposit towards the purchase of 73 Omeath Street Belfast, Northern Ireland. Warrant I alleges that the applicant obtained that cheque from Barry J Redmond with intent to defraud by falsely pretending that it was required as a deposit towards 73 Omeath Street Belfast, Northern Ireland, contrary to s 32(1) of the Larceny Act 1916 as amended by s 9 of the Larceny Act 1990 (Ireland).
23 So far as the details of these allegations in warrant A and warrant I are concerned, the statement filed with the authorised person's certificate dated 3 August 2005 discloses that:
4.1 On or about the 25th November 1998 in Dublin, Barry Redmond was induced by or on behalf of Vincent O'Donoghue to pay to Property World a cheque in the sum of £4,000 in relation to the purchase of premises at 73 Omeath Street, Belfast, Northern Ireland ('the first property deal'). The inducements took a number of different forms and were part of an ongoing process. By the use of conversation and property brochures, Geraldine Derwin, an employee of Property World, convinced Barry Redmond that Property World would secure the purchase on his behalf of the said premises. She made representations to Barry Redmond that the funds would be used to pay a large proportion of the deposit payment for the premises, the deposit being 10% of the purchase price. It is alleged that Vincent O'Donoghue subsequently took responsibility for the actions of his employee in obtaining said payment. Notwithstanding that the cheque was handed by Barry Redmond to Geraldine Derwin no material efforts were made by Vincent O'Donoghue or Property World to secure the purchase of the said premises. The cheque was made payable to Barry J Redmond and he endorsed the back of it before handing it to Property World. It is alleged that this cheque was presented at a bank by Vincent O'Donoghue on or about the same day and that, rather than lodging it in a bank account, he converted it to cash. Although premises at 73 Omeath Street were for sale and enquiries about it were made on behalf of Property World, ultimately the premises were sold to a different purchaser. It is alleged that the £4,000 paid by Barry Redmond was used for Vincent O'Donoghue's own purposes and that he never had any intention of directing it towards the purchase of 73, Omeath Street or any other premises. Such an allegation is based on inferences drawn from Vincent O'Donoghue's subsequent conduct in respect of Barry Redmond. Accordingly, it is alleged that the representation made to Barry Redmond that the cheque was required as part‑payment of the deposit was false.
24 Warrant B and warrant J are concerned with a further alleged dealing between Barry J Redmond and Property World of 25 November 1998 this time concerning Irish Permanent cheque number 555158. Warrant B alleges that this cheque was entrusted to Property World by Barry J Redmond to be put as a deposit towards the purchase of 73 Omeath Street Belfast but was fraudulently converted to the applicant's own use or benefit. Warrant J alleges that the applicant with intent to defraud obtained the cheque from Barry J Redmond by falsely pretending that Property World required it as a deposit towards the purchase of 73 Omeath Street Belfast.
25 The statement at para 4.2 discloses the same detailed allegations as are made in respect of warrant A and warrant I. In effect, warrant A and warrant I, and warrant B and warrant J are concerned with related conduct concerning Barry J Redmond on 25 November 1998. In short, the applicant is alleged to have converted to his own use the two cheques respectively for £4,000.00 and £592.00, or to have obtained those cheques by falsely pretending that they would be used as a deposit on the named property in Belfast.
26 Warrant C and warrant K are concerned with the same conduct, namely the dealing by the applicant with an Irish Permanent cheque number 597103 payable to Barry J Redmond in the sum of £2,315.00 on 8 January 1999. Warrant C alleges that the applicant fraudulently converted that cheque to his own use or benefit, when it was entrusted to Property World by Barry J Redmond to put as a deposit towards the purchase of 49 Battenburg Street, Belfast, Northern Ireland. Warrant K alleges that the applicant obtained that cheque from Barry J Redmond with intent to defraud by falsely pretending that it was required as a deposit toward the purchase of 49 Battenburg Street, Belfast, Northern Ireland.
27 So far as the details of these allegations in warrant C and warrant K are concerned, the statements filed with the authorised persons certificate dated 3 August 2005 discloses that:
4.3 On or about the 5th January 1999 in Dublin, Barry Redmond was induced by or on behalf of Vincent O'Donoghue to pay to Property World a cheque in the sum of £2,315 in relation to the purchase of premises at 49 Battenburg Street, Belfast, Northern Ireland. Again, the inducements took a number of different forms and were part of an ongoing process. By the use of conversation and property brochures, and because of their previous dealings in respect of the first property deal, Geraldine Derwin and Anne Marie Murphy, employees of Property World, convinced Barry Redmond that Property World would secure the purchase on his behalf of the said premises. They made representations to Barry Redmond that the funds would be used to pay the deposit for the premises. It is alleged that Vincent O'Donoghue subsequently took responsibility for the actions of his employees in obtaining said payment. It is alleged that this cheque was presented at a bank by Vincent O'Donoghue on or about the same day and that, rather than lodging it in a bank account, he converted it to cash. Although premises at 49, Battenburg Street were for sale and enquiries about it were made on behalf of Property World, ultimately the premises were sold to a different purchaser. It is alleged that the £2,315 paid by Barry Redmond was used for Vincent O'Donoghue's own purposes and that he never had any intention of directing it towards the purchase of 49, Battenburg Street or any other premises. Such an allegation is based on inferences drawn from Vincent O'Donoghue's previous and subsequent conduct in respect of Barry Redmond. Accordingly, it is alleged that the representation made to Barry Redmond that the cheque was required as a deposit was false.
28 Warrant D and warrant L are concerned with the same conduct, namely the dealing by the applicant with an Irish Permanent cheque number 599826 payable to Property World in the sum of £330.00 on 17 February 1999. Warrant D alleges that the applicant fraudulently converted that cheque to his own use or benefit, when it was entrusted to Property World by Barry J Redmond to pay surveyors' fees on 101 Ainsworth Avenue, Belfast, Northern Ireland. Warrant L alleges that the applicant obtained that cheque from Barry J Redmond with intent to defraud, by falsely pretending it was required for surveyors' fees for 101 Ainsworth Avenue, Belfast, Northern Ireland by Barry J Redmond.
29 So far as the details of these allegations in warrant D and L are concerned, the statement filed with the authorised person's certificate dated 3 August 2005 discloses that:
4.4 On or about the 17th February 1999 in Dublin, Barry Redmond was induced by or on behalf of Vincent O'Donoghue to pay to Property World a cheque in the sum of £330 in relation to the purchase of premises at 101, Ainsworth Avenue, Belfast, Northern Ireland. Again, the inducements took a number of different forms and were part of an ongoing process. By the use of conversation and property brochures, and because of their previous dealings in respect of the earlier property deals referred to in paragraphs 4.1 to 4.3 above, Anne Marie Murphy, an employee of Property World, convinced Barry Redmond that Property World would secure the purchase on his behalf of the said premises. She made representations to Barry Redmond that the funds would be used to pay surveyor's fees in respect of the premises. It is alleged that Vincent O'Donoghue subsequently took responsibility for the actions of his employee in obtaining said payment. It is alleged that this cheque was presented at a bank by Vincent O'Donoghue on or about the same day and that, rather than lodging it in a bank account, he converted it to cash. It is understood that premises at 101, Ainsworth Avenue were for sale but the purchase of them was never secured by or on behalf of Barry Redmond. Barry Redmond was informed by Property World that a particular firm of solicitors had conduct of the sale of all the Belfast Properties. In fact the named firm of solicitors never had any dealings with these premises. It is alleged that the £330 paid by Barry Redmond was used for Vincent O'Donoghue's own purposes and that he never had any intention of directing it towards the purchase of 101, Ainsworth Avenue or any other premises. Such an allegation is based on inferences drawn from Vincent O'Donoghue's previous and subsequent conduct in respect of Barry Redmond. Accordingly, it is alleged that the representation made to Barry Redmond that the cheque was required to cover surveyor's fees was false.
30 Warrant E and warrant M are concerned with the same conduct, namely, the dealing by the applicant with an Irish Permanent cheque number 599827 payable to Property World in the sum of £448.00, on 17 February 1999. Warrant E alleges that the applicant fraudulently converted that cheque to his own use or benefit, when it was entrusted to Property World by Barry J Redmond to be put as a deposit towards the purchase of 101 Ainsworth Avenue, Belfast, Northern Ireland. Warrant M alleges that the applicant obtained that cheque from Barry J Redmond with intent to defraud by falsely pretending that it was required as a deposit towards the purchase of 101 Ainsworth Avenue, Belfast, Northern Ireland.
31 So far as the details of these allegations in warrant E and M are concerned, the statement filed with the authorised person's certificate dated 3 August 2005 discloses that:
4.5 Also on or about the 17th February 1999 in Dublin, Barry Redmond was induced by or on behalf of Vincent O'Donoghue to pay to Property World business a second cheque, this time in the sum of £448, in relation to the purchase of the same premises in Ainsworth Avenue, Belfast [to which warrants D and L relate]. Again, the inducements took a number of different forms and were part of an ongoing process. By the use of conversation and property brochures, and because of their previous dealings in respect of the earlier property deals referred to in paragraphs 4.1 to 4.4 above, Anne Marie Murphy, an employee of Property World, convinced Barry Redmond that Property World would secure the purchase on his behalf of the said premises. She made representations to Barry Redmond that the funds would be used to pay a proportion of the deposit payment for the premises. It is alleged that Vincent O'Donoghue subsequently took responsibility for the actions of his employee in obtaining said payment. It is alleged that, at some stage between that day and the 4th March 1999, this cheque was used to pay a debt incurred by Property World to the Sunday Tribune Newspaper and presented by an employee of Property World as part payment on an overdue bill. It is understood that premises at 101, Ainsworth Avenue were for sale but the purchase of them was never secured by or on behalf of Barry Redmond. It is alleged that Vincent O'Donoghue never had any intention of directing the £448 paid by Barry Redmond towards the purchase of 101, Ainsworth Avenue or any other premises. Such an allegation is based on inferences drawn from Vincent O'Donoghue's previous and subsequent conduct in respect of Barry Redmond. Accordingly, it is alleged that the representation made to Barry Redmond that the cheque was required as part‑payment of the deposit was false.
32 Warrant F and warrant N are concerned with the same conduct, namely the dealing of the applicant with Irish Permanent cheque number 798294 payable to Barry J Redmond in the sum of £2,000.00 on 23 June 1999. Warrant F alleges that the applicant fraudulently converted that cheque to his own use or benefit, when it was entrusted to the applicant by Barry J Redmond to put as a deposit towards the purchase of a portfolio of properties at Portmine, North Belfast, Northern Ireland. Warrant N alleges that the applicant obtained that cheque with intent to defraud from Barry J Redmond, by falsely pretending that it was required as a deposit towards the purchase of a portfolio of properties in Portmine, North Belfast, Northern Ireland by Barry J Redmond.
33 So far as the details of these allegations in warrant F and warrant N are concerned, the statement filed with the authorised person's certificate dated 3 August 2005 discloses that:
4.6 On or about the 23rd June 1999 in Dublin, Barry Redmond was induced by or on behalf of Vincent O'Donoghue to pay to Property World a cheque in the sum of £2,000 in relation to the purchase of a portfolio of four properties in Portmine, North Belfast, Northern Ireland. Again, the inducements took a number of different forms and were part of an ongoing process. By the use of conversation and property brochures, and because of their previous dealings in respect of the earlier property deals referred to in paragraphs 4.1 to 4.5 above, Vincent O'Donoghue convinced Barry Redmond that Property World would secure the purchase on his behalf of the said portfolio. Vincent O'Donoghue made representations to Barry Redmond that the funds would be used to pay a proportion of the deposit payment for the four properties. Vincent O'Donoghue further represented that the monies already paid by Barry Redmond to Property World as referred to in paragraphs 4.1 to 4.5 above would be put towards the said deposit. It is alleged that Barry Redmond handed the cheque to Vincent O'Donoghue in person. It is alleged that this cheque was presented at a bank by Vincent O'Donoghue on or about the same day and that, rather than lodging it in a bank account, he converted it to cash. The four properties in question were for sale at the relevant time and the vendor had instructed Vincent O'Donoghue to handle the sale. However, the vendor subsequently withdrew these instructions and the proposed purchase by Barry Redmond was not completed. It is alleged that the £2,000 paid by Barry Redmond was used for Vincent O'Donoghue's own purposes and that he never had any intention of directing it towards the purchase of any of the properties in Portmine or any other premises. Such an allegation is based on inferences drawn from Vincent O'Donoghue's previous and subsequent conduct in respect of Barry Redmond as set out herein. Accordingly, it is alleged that the representation made to Barry Redmond that the cheque was required as part‑payment of the deposit was false.
34 Warrant G and warrant O are concerned with the same conduct, namely Educational Building Society cheque number 785384 payable to Property World, on 2 July 1999. Warrant G alleges that the applicant fraudulently converted this cheque to his own use or benefit, when it was entrusted to Property World by Barry J Redmond as a deposit towards the purchase of a portfolio of properties at Portmine, North Belfast, Northern Ireland. Warrant O alleges that the applicant obtained that cheque with intent to defraud, by falsely pretending that it was required as a deposit towards the purchase of a portfolio of properties at Portmine, North Belfast, Northern Ireland by Barry J Redmond.
35 So far as the details of these allegations in warrant G and warrant O are concerned, the statement filed with the authorised person's certificate dated 3 August 2005 discloses that:
4.7 On or about the 2nd July 1999 in Dublin, Barry Redmond was induced by or on behalf of Vincent O'Donoghue to pay Property World a second cheque, this time in the sum of £9,643.05, in relation to the purchase of the same portfolio of properties in Portmine, North Belfast, Northern Ireland… [The cheque represented an additional] proportion of the deposit payment for the four properties, the balance of the deposit being made up from the monies already paid by Barry Redmond to Property World... It is alleged that Barry Redmond handed the cheque to Vincent O'Donoghue in person. It is alleged that this cheque was presented at a bank by Vincent O'Donoghue on or about the same day and that, rather than lodging it in a bank account, he converted it to cash… the four properties in question were for sale at the relevant time and the vendor had instructed Vincent O'Donoghue to handle the sale. However, the vendor subsequently withdrew these instructions and the proposed purchase by Barry Redmond was not completed… It is alleged that the £9,643.05 paid by Barry Redmond was used for Vincent O'Donoghue's own purposes and that he could never have had any intention of directing it towards the purchase of any of the properties in Portmine, North Belfast, Northern Ireland or [any other premises]… Accordingly, it is alleged that the representation made to Barry Redmond that the cheque was required as part‑payment of the deposit was false.
36 Warrant H and warrant P are concerned with the same conduct, namely the dealing by the applicant with a Bank of Ireland cheque number 001787 payable to Property World in the sum of £15,500.00 dated 14 January 1999, on 22 January 1999. Warrant H alleges that the applicant fraudulently converted that cheque to his own use or benefit, when it was entrusted to Property World by Ciaran Henderson to put as a deposit towards the purchase of 31 Richmond Square, North Brunswick Street, Dublin 7. Warrant P alleges that the applicant obtained that cheque from Ciaran Henderson with intent to defraud by falsely pretending that an apartment he was selling on behalf of Cliona Buckley to Ciaran Henderson at 31 Richmond Square, North Brunswick Street, Dublin 7 was eligible for s 23 tax relief of 80% of the purchase price of £155,000.00 and also eligible for full mortgage interest relief which was not the case.
37 So far as the details of these allegations in warrant H and warrant P are concerned, the statements filed with the authorised person's certificate dated 3 August 2005 discloses that:
4.8 On or about the 14th January 1999 in Dublin, Ciaran Henderson was induced by or on behalf of Vincent O'Donoghue to pay to Property World a cheque in the sum of £15,500 in relation to the purchase of premises at 31, Richmond Square, North Brunswick Street, Dublin 7. [The cheque represented the deposit payment for the premises,]… the deposit being 10% of the purchase price. …In paying the deposit to Property World, Ciaran Henderson understood, as a result of oral representations made by or on behalf of Vincent O'Donoghue, that he would be entitled to tax relief at 80% of the total purchase price of £155,000. In addition, the newspaper advertisement placed by or on behalf of Vincent O'Donoghue, to which Ciaran Henderson had responded, had represented that the tax relief was 'full' and had implied that the premises qualified for mortgage interest relief. The Property World brochure in respect of the premises, supplied to Ciaran Henderson prior to his payment of the deposit, specifically stated that the premises qualified for 80% tax relief and for mortgage interest relief. Subsequent enquiries made by solicitors acting on behalf of Ciaran Henderson established that the entitlement to tax relief was limited to 80% of the original purchase price of the premises when newly built, namely £130,000, and that mortgage interest tax relief was not available. As a result, Ciaran Henderson sought to withdraw from the purchase but was unsuccessful in securing from Vincent O'Donoghue the return of his deposit. Instead, Vincent O'Donoghue attempted to interest Ciaran Henderson in the purchase of different premises in Pudding Row, Temple Bar, Dublin 2 and consistently refused any form of refund. It is alleged that the cheque for £15,500 was presented at a bank by Vincent O'Donoghue on or about the 22nd January 1999 and that, rather than lodging it in a bank account, he converted it to cash. Although premises at 31, Richmond Square were for sale, a different agent had conduct of the sale on behalf of the vendor and, ultimately, the premises were sold to a different purchaser. Further, this different agent was the sole agent for the sale of all properties in Pudding Row. It is alleged that the £15,500 paid by Ciaran Henderson was used for Vincent O'Donoghue's own purposes and that he never had any intention of directing it towards the purchase of 31, Richmond Square or any other premises. Such an allegation is based on the fact that Vincent O'Donoghue had no authority to offer those premises for sale and on inferences drawn from Vincent O'Donoghue's previous and subsequent conduct in respect of Barry Redmond… Accordingly, it is alleged that the representation made to Ciaran Henderson that the cheque was required as a deposit was false.
38 The statements made in the authorised person's certificate dated 3 August 2005 also disclose other facts relevant to the various warrants in a section 3 described as "Allegations: Overview";
3.1 During 1998 and 1999, Vincent O'Donoghue owned and operated a business known as 'Property World', based in Dublin, which purported to assist customers in the purchase of premises, particularly if for investment purposes. The allegations faced by Vincent O'Donoghue are that, during the course of just over seven months from November 1998 to July 1999, he induced a customer, Barry Redmond, to write cheques in respect of property deals which, it is alleged, were not genuine. The details of the payments are set out at paragraphs 4.1 to 4.7 below. Initially, Mr Redmond was led to believe by or on behalf of Vincent O'Donoghue that he was entrusting Property World with a payment constituting a deposit for the purchase of premises. When Barry Redmond was informed by or on behalf of Vincent O'Donoghue that this deal had fallen through, he was persuaded by Vincent O'Donoghue to invest a further sum in order to secure the purchase of different premises. This process occurred in respect of five different purchases, involving seven different cheques, before Mr Redmond realised that he had not received, and was unlikely to receive, any benefit from his investments. The matter was then reported to An Garda Siochana [the Irish police force]. During this series of transactions with Barry Redmond, Vincent O'Donoghue also obtained from another customer, Ciaran Henderson, a cheque for a similar property deal. The details of this transaction are set out at paragraph 4.8 below.
3.2 The accepted business practice in Ireland in respect of such payments by clients would be for the monies to be held on trust on the client's behalf in a business or client account. The funds would then only be released as and when the required payment became due. Instead, it is alleged that Vincent O'Donoghue either converted the cheques to cash or diverted them to pay for debts accrued by Property World.
3.3 Investigations have established that, in respect of a number of these premises, Property World had no instruction to offer them for sale. Indeed, some of the properties were not for sale at the time when Vincent O'Donoghue's business sought the deposit cheques. Accordingly, it is alleged that the obtaining of all the cheques was achieved fraudulently, as a result of misrepresentation that a genuine transaction was anticipated.
the applicant's arguments on review
39 The applicant submits that the documents produced by Ireland fail to identify conduct on the part of the applicant sufficient to:
(1) meet the requirements of s 19(3)(c)(ii) of the Act; and/or
(2) properly satisfy the Court that it or equivalent conduct constituted an extradition offence in Western Australia.
40 In this regard s 19(2) of the Act has the effect that a magistrate is only able to find a person eligible for surrender in relation to an extradition offence to 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 the 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.
41 The applicant contends that having regard to the definition of "supporting documents" in s 19(3)(c)(ii), that there were no supporting documents relevantly produced to the magistrate, in that the documents produced do not constitute a duly authenticated statement in writing "setting out the conduct constituting the offence".
42 It may be seen that the ground of the complaint of the applicant in (1) is closely related to the ground of complaint in (2), in that each focuses upon the acts or omissions alleged and said to constitute the offence either in the extradition country or in Western Australia, Western Australia being that "part of Australia where the proceedings are being conducted "and in relation to which it is alleged that such "conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia".
43 The applicant recognises that the statements produced by Ireland under s 19 of the Act serve the dual purpose of being supporting documents and the materials for the magistrate to consider when considering a determination pursuant to s 19(2) of the Act. However, the applicant says that even if the statements are considered sufficient to satisfy s 19(3)(c)(ii) of the Act they should be considered inadequate to establish criminality in Western Australia as required by s 19(2). In this regard the two preconditions should be noted and not ignored: see Griffiths v United States of America (2005) 143 FCR 182 at [53], [55].
44 In relation to the "Allegation: Overview" paras 3.1 – 3.3 set out above, the applicant makes the following submissions:
• The reference to 'accepted business practice' in relation to the receipt and accounting of deposit and like payments – to the effect that such payments should be held on trust in a business or client account and only released as and when the required payment became due – the statement relies for its claims of criminality in substantial part 'on an unexplained and self‑referential assertion' of what accepted business practice is.
• The applicant says the self‑referential assertion is conclusionary and of no assistance in considering the conduct referred to.
• There is no allegation made in the statement that the funds were paid to Property World with a direction that they be held in trust for any purpose.
• The characterisation of the payments by Ireland appears to be based upon the alleged beliefs of Messrs Redmond and Henderson and unsupported by any description of any actual act or omission on the part of the applicant which, it is alleged, gave rise to those beliefs.
• To make matters even less clear, this paragraph refers to various payments as 'investments'.
• It is by no means clear from the statement whether or not any such practice as alleged might be applicable to the payments referred to.
• In the absence of applicable legal requirements or (perhaps) invariable business practice or a specific direction by a client requiring the funds to be held for a specific purpose, the payments would more properly be treated as items of debit in a debit and credit account between Property World and Messrs Redmond and Henderson. In those circumstances, the mixing of investment funds paid to Property World with its general funds would not constitute and do not constitute 'conversion' or 'diversion' of such payments.
45 The applicant further submits in relation to the more detailed particulars in respect of the warrants that:
• On each occasion, save for the circumstances mentioned in relation to warrants F and N, warrants G and O and warrants H and P, cheques were obtained initially by persons other than the applicant.
• It is not alleged that the applicant directed the named persons or even had any knowledge of their conduct at the time the cheques were delivered.
• All that is said in the relevant paragraphs is that it is alleged that the applicant 'subsequently took responsibility' for the actions of Property World employees.
46 Furthermore, the applicant submits in relation to the actual conduct said to have induced the payments to Property World:
• The statements include vague and conclusory references to conversations, advertisements and brochures not actual conduct – that is to say, words allegedly used – is not set out.
• Where that is so, the Court cannot assess whether such conduct amounts to fraudulent or deceitful conduct.
47 In relation to the question whether the conduct complained of or equivalent conduct would have constituted an extradition offence in relation to Western Australia, the applicant submits that:
• The relevant 'conduct' asserted in respect of warrants A/I, B/J, C/K, D/L, E/M and H/P is the conduct of persons other than the applicant.
• In Western Australia conduct of the matter can only be asserted against an accused as a principal if the conduct of the accused falls within one of the subparagraphs (b), (c), (d) to s 7 of the Criminal Code (WA).
48 In this regard s 7 of the Criminal Code (WA) relevantly provides:
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say —
(a) Every person who actually does the act or makes the omission which constitutes the offence;
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) Every person who aids another person in committing the offence;
(d) Any person who counsels or procures any other person to commit the offence.
In light of this provision, the applicant submits:
• No conduct of the applicant in respect of the warrants noted is set out in the documents relied upon which would make the applicant party to an offence pursuant to s 378, s 371(1) or s 409 of the Criminal Code (WA) that deal respectively with stealing (s 376) or intent to defraud (s 409).
• It is not even asserted in the documents that the applicant knew what representations had allegedly been made on his behalf; only that the applicant 'subsequently took responsibility for' the actions of others – whatever that means.
• No actual acts or conduct on the part of the applicant have been set out that it might be concluded that the applicant had any 'awareness' or 'knowledge' as asserted on behalf of the first respondent in written submissions made on behalf of Ireland.
• Even if such conduct had been set out, vague notions of 'awareness' and 'knowledge' of unspecified representations do not amount to counselling or procuring as referred to in s 7(d) of the Criminal Code in Western Australia.
• The assertion in the submissions filed on behalf of Ireland in any event mischaracterises what he set out in the documents.
49 In relation to warrants F/N and G/O and the "conduct" alleged in them against the applicant, the applicant submits:
(1) There is no taking or conversion, because:
• The 'conduct' asserted against the applicant is plainly insufficient to establish criminality in Western Australia pursuant to s 371(1) or s 409 of the Criminal Code.
• Both matters describe the 'payment' of cheques to Property World. It must have been intended that Property World would have possession of the proceeds.
• Such conduct as is set out cannot satisfy the Court that there has been a taking or a conversion.
• There is no conduct from which the Court might properly infer an intention as required by s 371 of the Criminal Code.
(2) They provide no basis for an allegation of fraud, because:
• The act, which the first respondent must show to have been fraudulent, was not sufficiently described.
• The Court cannot determine if representations might be untrue and amount to fraud if the actual conduct is not set out.
• For these purposes, what the person said to have been induced considered the representations to mean, is insufficient. The allegedly induced person may have a wholly unreasonable interpretation of the word spoken.
• The Court must be able to satisfy itself whether representations constituted a fraud contrary to s 409 of the Criminal Code. If it cannot the matter must be determined against the request of a country.
(3) Inferences cannot be drawn in the circumstances:
• It is accepted that the conduct alleged does not need to be set out in witness statements and may constitute merely a sufficiently particularised description.
• Whilst it might, in some circumstances, be appropriate for the Court to make an inference of the required knowledge, belief, or intent from conduct properly set out in supporting documents, as in Kainhofer v Director of Public Prosecutions (No 2) (1996) 70 FCR 184, it can never be appropriate for a requesting country to assert knowledge, belief or intent and seek to have the Court infer conduct not otherwise set out.
50 In relation to s 378 and s 371(1) of the Criminal Code (WA) that deal with stealing, the applicant makes the following submissions:
• Only in relation to the matters referred to in warrants F/N and G/O is it alleged that cheques were handed by Mr Redmond to the applicant.
• In the other alleged matters, the cheques were handed to persons other than the applicant and there cannot be stealing or conversion by applicant as principal unless conduct meets the requirements of s 7 of the Criminal Code.
• There is no suggestion of any direction by Mr Redmond or Mr Henderson conveyed to the applicant that the proceeds of any cheque were not to be mixed with the funds of the business.
• The use of mixed funds by the applicant as 'owner and operator' cannot by itself amount to stealing: Parker v The Queen (1997) 186 CLR 494.
• In those circumstances the application of the proceeds to the purposes of the business does not take the matter any further. In that sense the mixing of the funds created no more than a civil debtor/creditor relationship.
51 The applicant further submits that the assertion by Ireland that "property transactions" were not genuine is vague and unhelpful. It is not contended that the applicant was the vendor's agent. The relevant property "transactions" can only have been in relation to seeking to negotiate a purchase or, as described in para 3.1 of the Allegations: Overview, "assisting" in the purchase of premises.
52 The applicant therefore submits that to the extent that the applicant is alleged to have been a party to relevant conduct, as in warrant F/N and G/O, specific acts or omissions on the part of the applicant must be described from which it might properly be inferred there was a requisite intention, as required by s 371(1) of the Criminal Code (Western Australia) on the part of the applicant.
53 The applicant submits that the allegations made by Ireland are that at the time of the matters referred to in warrants F/N and G/O Mr Redmond was aware that the prospective acquisitions of other properties had been unsuccessful.
54 In relations to warrants F/N, a further cheque was allegedly handed to the applicant in relation to properties in Northern Ireland. The properties were for sale and the applicant had instructions (of an unspecified nature) from the vendor. In reality all that is advanced in support of the assertion of intention on the part of the applicant is that, ultimately, he did not secure the purchase of the properties on behalf of Mr Redmond and that funds drawn on the cheques were mixed with those of the business. That is insufficient to found an inference of intention required under s 371(1) of the Criminal Code o(WA).
55 The applicant says that similarly in respect of the matters relating to warrants G/O:
• The relevant properties were for sale and the applicant had (unspecified) instructions on behalf of the vendors which had subsequently been withdrawn.
• Subsequent discussions identified further premises in the UK.
• The properties had been "for sale" in 1998 and were "for sale" in January 2000.
56 The applicant says the expression "not on the market" is vague and unhelpful. There is no assertion that the vendor would have refused any offer and the expression may mean no more than that the properties were not being advertised.
57 As to the intent to defraud (or false pretences) offences, put in the alternative, the applicant makes the following submissions concerning s 409 of the Criminal Code (WA):
• The section contains a mental element which involves a question whether an accused person has a belief in the existence of a state of things, by virtue of the words 'with intent to defraud'.
• It is necessary to analyse the facts in order to identify the aspect which is alleged to reveal a fraud.
• If there is a fraud, there must be an intent to defraud and that intent may be revealed by knowledge.
• An intent to defraud is not to be equated with carelessness.
• The question of intent to defraud is essentially subjective; it is a question of what the accused intended, not of what a hypothetical reasonable man would have intended.
• Even if the actual conduct complained of was set out in the documents and was referable to the applicant, no conduct is set out from which it might properly be inferred that the requisite knowledge, belief or intent existed to defraud.
Consideration
58 In the context of this particular review application, while the applicant raises two issues – the first concerning the adequacy of the statements relied upon by Ireland to set out "the conduct constituting the offence" for the purposes of s 19(2)(a) of the Act, and the second concerning the "dual criminality" issue, that is, whether that conduct or equivalent conduct would have constituted an extradition offence in relation to Western Australia for the purposes of s 19(2)(c) of the Act – there is in practical terms only a single issue, and that is whether the documents put before the magistrate establish that the alleged conduct of the applicant, or equivalent conduct would have constituted an extradition offence in Western Australia. If it would have then, in the circumstances of this case, there will also have been a sufficient statement in the documents setting out the conduct constituting the offence.
59 As noted above, s 19(3)(c)(ii) provides a definition of "supporting documents" that includes "a duly authenticated statement in writing setting out the conduct constituting the offence".
60 Section 10(2) of the Act, an interpretive provision relating to offences, provides that:
(2) A reference in this Act 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.
61 In Truong v The Queen [2004] HCA 10; 223 CLR 122 at [29], Gleeson CJ, McHugh and Heydon JJ stated:
The acts or omissions, that is, the conduct, by virtue of which an offence has been, or is alleged to have been, committed, lie at a level of abstraction between a formal statement of the elements of the offence, on the one hand, and an account of the evidence relied on to prove the relevant conduct, on the other.
62 In relation to what is required in an extradition hearing under s 19, Gleeson CJ noted in Vasiljkovic v Commonwealth [2006] HCA 40; 227 CLR 614 at [23] that such a hearing "does not involve a trial on the merits, and the enquiry is as to whether there is, in effect, a case to be answered".
63 In Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 294, the Full Court confirmed that the phrase "the acts or omissions" refers to the elements or ingredients of the offence, not particular evidence adduced to prove those acts or omissions: see also Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 502 – 503.
64 It is well understood that it is not part of the magistrate's function (or this Court's on review) to determine whether an offence was committed in the requesting country: Zoeller 23 FCR 282 at 300, 303 (The Full Court); McDade v The United Kingdom [1999] FCA 1868 at [14] - [16]. In effect, that there is a foreign offence, is, for the purposes of s 19 proceedings, proved by the warrant or warrants duly authenticated; and that the offence is an extraditable offence in the requesting country is proved by the document required by s 19(3)(c)(i) – that is a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence.
65 All this accords with that principal object of the Act set out in s 3(a) namely:
to codify the law relating to the extradition of persons from Australia to extradition countries and New Zealand and, in particular, to provide for proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited, without determining the guilt or innocence of the person of an offence;
66 Consequently in Zoeller 23 FCR 282 at 300 the Full Court stated:
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 …
67 Ultimately, the supporting documents here must be such as to permit the Court to be satisfied that the conduct said to constitute the offence in the requesting country, or the equivalent conduct, would have constituted an extradition offence had it taken place in Western Australia: see McDade FCA 1868 at [16]; DeBruyn v Republic of South Africa (1999) 96 FCR 290 at [7]; Zoeller 23 FCR 282 at 299 – 300.
68 It is well accepted that strict compliance with the formalities required by the Act is essential: Cabal v United Mexican States (No 3) (2000) 186 ALR 188, French J at 240; and authorities there referred to.
69 Nonetheless, it is also accepted that in the conduct of a hearing "practical judgments and assessments are called for" by a magistrate, and this Court on a re‑hearing.
70 In Wiest 23 FCR 472 at 519, Gummow J (with whom Sheppard and Burchett JJ generally agreed) stated:
An inquiry as to whether a proffered statement meets the description of requirement (c) presents a matter for practical judgment and assessment, not for overzealousness in discerning deficiencies.
This approach was also adopted by the Full Court in Zoeller 23 FCR 282 at 294.
71 To some extent there is a tension between the "strict compliance" and the "practical judgments" approaches, although on closer analysis each approach has a different focus. In Cabal 186 ALR 188 at 241, French J at [133] observed:
Again, there is a tension between the need to ensure that the individual's liberty is not to be affected except by statutory authority and in accordance with its terms and conditions and the need to avoid permitting the legislation to become a minefield of technicalities which defeat its purpose.
72 At [134], French J further observed:
The court, giving effect to the terms of the Act and the treaty, and proper respect to the liberty of the individual, will look to questions of substance rather than form … Such criteria may be seen as involving value judgments. No doubt they do. The ultimate principle governing the court's approach remains — the requested person must go free unless it can be shown, in accordance with the requirements of the Extradition Act properly construed, that the person is eligible for surrender. The same values inform that approach as inform an approach described by the use of such terms as 'strict construction'.
73 One can see the good sense of these statements of the approach to be taken in an extradition hearing for the purposes of s 19, because one can expect the supporting documents to contain statements that, as indicated in the joint judgment in Truong 223 CLR 122, contain a mixture of formal statements of the elements of offences on the one hand and accounts of the evidence to be relied upon to prove the relevant conduct on the other, as indeed is the case here.
74 As Weinberg J also observed in Timar v Republic of Hungary [1999] FCA 1518 at [63]:
documents emanating from countries with which Australia has extradition arrangements will often be drafted in language and style which is very different from our own, and perhaps less than perfect from our perspective.
But as His Honour went on to say at [63] "Such documents must, in my opinion, be read fairly, and not perversely". At [64], His Honour added:
It is not the case that every conceivable doubt or possible ambiguity of fact or law, no matter how inconsequential, must be resolved against the country seeking extradition.
75 For similar reasons no doubt, it is recognised that the material put forward in supporting statements may also go beyond what is necessary, without contravening the Act's requirements: see Zoeller 23 FCR 282 at 299 – 300; McDade at [20].
76 The decision of the Full Court in Kainhofer v Director of Public Prosecutions (1996)(No 2)70 FCR 184 at 190 – 191 refers to what was said in Weist 73 FCR 472 and Zoeller 23 FCR 282 and confirms that inferences may be properly drawn from the materials produced. In Kainhofer 70 FCR 184 it was charged that the items in question were "obviously" subject to a reservation of title. The Court at 191 said it could be inferred from the reference to obviousness that Ms Kainhofer also had knowledge that the items in question were subject to a reservation of title, that is to say she had knowledge that the statement which she admitted was false, was knowingly false.
77 In Kainhofer 70 FCR 184 at 191 – 192 the Court was also satisfied that, while it was an essential ingredient of the offence of obtaining goods for credit by false pretences or wilfully false promise under s 427(1) of the Criminal Code (Qld) that there be an intent to defraud, that intent could be found in the use of the words "pretending to be solvent" and directly in the words "intending to defraud" in the statement.
78 In Zoeller 23 FCR 282 at 302, the Court observed that, while it was true that the statement of facts in question contained no direct description of the appellant's state of mind in terms of that required by the statement of the Australian offences, the facts stated made it clear that the appellant knowingly entered into agreements that were backdated and that he did so to enable him to claim tax deductions. The Court said that these facts sufficiently stated the guilty mind of the appellant without the necessity to do so explicitly.
79 In relation to the issue of dual criminality, the parties to this proceeding accept that the relevant local provisions to consider are s 378 and s 371 of the Criminal Code (WA) dealing with stealing and s 409 dealing with intent to defraud by deceit or any fraudulent means (false pretences).
80 Section 378 of the Criminal Code (WA) provides:
Any person who steals anything capable of being stolen is guilty of a crime, and is liable, if no other punishment is provided, to imprisonment for 7 years.
81 Section 371 relevantly provides that:
(1) A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person any property, is said to steal that thing or that property.
(2) A person who takes anything capable of being stolen or converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say —
(a) An intent to permanently deprive the owner of the thing or property of it or any part of it;
(b) An intent to permanently deprive any person who has any special property in the thing or property of such special property;
…
(f) In the case of money, an intent to use it at the will of the person who takes or converts it although he may intend to afterwards repay the amount to the owner.
82 Section 409(1) of the Criminal Code provides that:
Any person who, with intent to defraud, by deceit or any fraudulent means —
(a) obtains property from any person;
(b) induces any person to deliver property to another person;
(c) gains a benefit, pecuniary or otherwise, for any person;
(d) causes a detriment, pecuniary or otherwise, to any person;
(e) induces any person to do any act that the person is lawfully entitled to abstain from doing; or
(f) induces any person to abstain from doing any act that the person is lawfully entitled to do,
is guilty of a crime and is liable —
…
(h) in any other case, to imprisonment for 7 years.
83 Section 409(3) provides:
It is immaterial that the accused person intended to give value for the property obtained or delivered, or the benefit gained, or the detriment caused.
84 In this case, seven out of the eight counts of fraudulent conversion and seven out of the eight counts of the alternative charge of obtaining property by false pretences, both contrary to the Larceny Act 1916 (Ireland), relate to dealings concerning a Mr Redmond. The remaining count of fraudulent conversion with the alternative charge of obtaining property by false pretences, concerns a Mr Henderson.
85 The submissions made on behalf of the applicant and set out in some detail above, highlight the fact that the supporting documents, particularly the "Allegations: Overview" section and more detailed account of circumstances in which the offences are alleged to have been committed, so lack factual detail and contain ambiguities that they fail to set out relevant elements or ingredients of the Western Australian offences of stealing or false pretences.
86 For example, it is said the supporting documents are ambiguous as to whether Property World was the applicant's business or that of a corporate entity.
87 Further, that a question is raised whether instructions had been given by Mr Redmond and Mr Henderson that the cheques they provided to Property World, whether to an employee of the applicant or the applicant himself, were to be used for particular purposes and/or to be placed in a trust account pending the carrying out of a particular transaction.
88 It is also said they raise the question of the basis upon which it is said the applicant took responsibility for the earlier conduct of his employees who had received cheques on behalf of the applicant's business.
89 Indeed, counsel for the applicant contended in relation to warrants A/I that all that was put against the applicant was that "one of his employees obtained a cheque from someone and somehow, we don't know how, it came into his hands and he cashed it".
90 The applicant also contends the documents do not address the question and so, in effect, negative the possibility that the applicant mixed the funds he allegedly obtained from cashing the cheques with his business monies such that he could not be guilty of stealing them under Western Australian law. That is to say, there is nothing to suggest the ratio in Parker 186 CLR 494 does not apply here.
91 However, in my view, when one reads fairly the whole of the supporting documents, including the warrants, the detailed statement of facts and circumstances relating to the warrants and the conduct complained of, and the Allegations: Overview section, the material elements or ingredients of the offences stand out plainly, without ambiguity, and the mixing issue simply does not arise.
92 For example, a fair reading of the supporting documents discloses that it is alleged that the applicant was personally the owner and operator of a business called Property World, and there is no question of some corporate entity owning or operating that business.
93 It is also plain that, leaving aside the one cheque that was used to pay some advertising expenses of the Property World business, the blunt allegation is that the applicant personally cashed the cheques of Mr Redmond and Mr Henderson and applied the monies received to his own personal use, not that of the business of Property World.
94 In such circumstances, the applicant's contentions that a Western Australian offence of stealing could not be made out because there has been a "mixing" of funds in an account, which account is then used for a mixture of business and personal transactions, is not open on the allegations made. The allegation does not permit a "mixing" defence.
95 It is also plainly alleged in the case of the applicant's dealings with Mr Redmond that there was a course of conduct or a series of transactions involving Mr Redmond whereby he was induced to provide cheques to Property World, to the knowledge of the applicant, which cheques were not applied to the intended purpose of securing investment properties, but were in fact applied to the personal use of the applicant (or, in the case of the cheque used to pay the newspaper's advertising account, for an unrelated purpose).
96 It is also clearly alleged that all of these transactions were not genuine. In this regard the supporting documents unambiguously allege – and the Court is not required to draw inferences in this regard – that the applicant knew or was aware at material times that:
• a particular property transaction proposed to Mr Redmond or Mr Henderson was not genuine;
• the applicant was obtaining or had obtained each cheque by falsely pretending certain matters;
• inducements to Mr Redmond or Mr Henderson in each case were made by the applicant directly or on his behalf with his awareness and knowledge;
• the applicant obtained the relevant cheque and presented it at a bank personally and converted the same to cash (for all warrants except E and M, of where the cheque involved was used to pay an advertising debt of the business);
• the proceeds were used for the applicant's own purposes (for all of the warrants except E and M where it was used to pay a newspaper's advertising account).
97 It is open to consider that the cheques themselves were material things that were capable of being stolen and were in fact stolen by conversion.
98 In any event, the conversion of the cheques into cash as alleged which cash was applied to the applicant's own uses would satisfy the conduct referred to in s 371(1) and s 371(2) of the Criminal Code (WA) and thereby constitute stealing.
99 Further, to obtain that property – the cheques – from Mr Redmond and Mr Henderson fraudulently, with intent to defraud, would constitute an offence under s 409(1) of the Criminal Code (WA). The allegations made support this as an equivalent offence in Western Australia. It is alleged that the applicant knowing that none of the particular property transactions was genuine, not intending to apply the cheques received towards that end, acquired the cheques and applied them to his own personal use. The elements or ingredients of the offences are bluntly stated and the question of the intent of the applicant is also unambiguously alleged.
100 While some criticism may be made of the use of the expression "accepted business practice" in the Allegations: Overview section – because it may be said to raise more questions than answers, in the sense that it is not clear whether it is alleged that the applicant and Mr Redmond, and the applicant and Mr Henderson had some common understanding about this practice – that statement may be considered mere surplusage in the circumstances. Without it the remaining material still satisfies the requirements of s 19(2)(c) of the Act and indicates an equivalent offence in Western Australia of stealing or false pretences.
101 No doubt the supporting documents could have addressed in more detail, and more methodically, the acts or omissions, and elements or ingredients of the alleged offences of fraudulent conversion and false pretences relied upon than they do. Nonetheless, when one analyses the supporting documents without an overly critical eye, the following elements or ingredients clearly emerge:
1. The applicant owned and operated a business called Property World.
2. A series of property transactions were proposed to Mr Redmond and Mr Henderson respectively that were not genuine to the knowledge of the applicant.
3. There were a series of transactions which culminated in the applicant receiving a relevant cheque and converting it to his own personal use (or unrelated business use in one case).
4. Employees of the business were acting on behalf of the applicant in the series of transactions which the applicant knew were not genuine.
102 To satisfy the requirements of the Act it is not necessary for detailed factual evidence, for example concerning the conversations alleged to have occurred between the employees of the applicant and Mr Redmond and Mr Henderson, to be set out. Similarly there is no need here for advertisements and brochures referred to be produced in order to establish the elements or ingredients of the offences alleged.
103 In conclusion, in relation to the dual criminality issue, I find that if the conduct of the applicant constituting each offence alleged in relation to Ireland, or equivalent conduct, had taken place in Western Australia, that conduct or that equivalent conduct would have constituted an extradition offence in relation to Western Australia, being either the offence of stealing, contrary to s 378 of the Criminal Code (WA), or intent to defraud (false pretences), contrary to s 409(1) of the Criminal Code (WA).
104 It follows, in my view, and I find that the documents provided in support of the extradition request, that were relied upon by the magistrate and in this Court on this review application, also constitute a duly authenticated statement in writing setting out the conduct constituting the offences for the purposes of s 19(2)(a) and s 19(3)(c)(ii) of the Act.
Conclusion and order
105 For these reasons, I would dismiss the review application.
106 As a result I determine that the applicant is eligible for surrender within the meaning of subs 19(2) of the Act in relation to extradition offences.
107 In accordance with s 21(6)(g) of the Act I expressly include in this judgment in the review proceedings the following statement:
The Court determines that Vincent Thomas O'Donoghue is eligible for surrender, within the meaning of subs 19(2) of the Extradition Act 1988 (Cth) in relation to the following extradition offences:
• 8 counts of fraudulent conversion contrary to s 20(1)(iv)(a) of the Larceny Act 1916 (Ireland); or in the alternative
• 8 counts of obtaining property by false pretences contrary to s 32(1) of the Larceny Act 1916 (Ireland).
108 I will hear from counsel as to the appropriate terms and the form of orders to be made.
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I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. |
Associate:
Dated: 9 June 2009
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Counsel for the Applicant: |
Mr S K Shepherd |
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Solicitor for the Applicant: |
Tottle Partners |
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Counsel for the First Respondent: |
Mr M D Howard |
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Solicitor for the First Respondent: |
Commonwealth Director of Public Prosecutions |
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Date of Hearing: |
18 May 2009 |
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Date of Judgment: |
9 June 2009 |
