Matson v United States of America

Federal Court of Australia|2016-10-21|Before: Rangiah J

The application be dismissed.
The applicant pay the first respondent's costs of the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 On 15 January 2016, Magistrate Cosgrove of the Magistrates Court of Queensland determined that the applicant, Baron Matson, was eligible for surrender to the first respondent, the United States of America ("USA"). His Honour then ordered, pursuant to s 19(9) of the Extradition Act 1988 (Cth) ("the Act"), that Mr Matson be committed to prison to await surrender or release. 2 In Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 389, the Full Court explained that there are four stages in extradition proceedings under the Act. The first stage is commencement, either by the issue of a provisional warrant under s 12(1), or by the giving of a notice under s 16(1) of the Act. The second stage is remand, in that, once arrested, the person is required by s 15 to be taken before a Magistrate and remanded in custody or on bail. The third stage is determination by a Magistrate of eligibility for surrender pursuant to s 19 of the Act. The fourth stage is executive determination as to whether the person is to be surrendered pursuant to s 22 of the Act. 3 This proceeding is for review under s 21 of the Act of the Magistrate's order at the third stage.

Background 4 On 26 October 2005, a grand jury in the USA returned an indictment charging Mr Matson and two others with the following offences, carrying the following maximum periods of imprisonment: one count of conspiracy to commit mail fraud and wire fraud - 5 years; five counts of mail fraud - 20 years; nine counts of wire fraud - 20 years. 5 On 21 December 2005, another grand jury returned a superseding indictment charging Mr Matson and the two others with the original offences and an additional count of conspiracy to commit money laundering, which carries a maximum penalty of 20 years imprisonment. 6 The allegations made by the USA are to the effect that between 1997 and 2000, Mr Matson, his father, Roger Matson and Gordon Robert Grant made false promises and representations to induce investors to invest in fraudulent schemes related to gambling on horse and greyhound racing. The schemes are alleged to have initially involved investors paying money for computer hardware and software known as the Professional Race Organizer Program ("the PRO Program"), which would allow investors to "generate a consistent cash income" and "successfully back every runner in every race". It is alleged that after receiving large amounts of money from the investors for the PRO Program, investors were invited by the conspirators to invest in a new program, a Managed Accounts Program, which would "increase their opportunity for return". Under this program the investors' funds were to be pooled and the conspirators were to manage the wagering process. In 2000, investors were presented with an opportunity to invest up to $75,000 each to be used for wagering on the Melbourne Cup. The USA alleges that the conspirators then "vanished along with substantially all of the investors' money". 7 A warrant was issued for Mr Matson's arrest on 26 October 2005 and a second warrant was issued on 21 December 2005. The second warrant was re-issued on 14 November 2011 to remedy a "scrivener's error". 8 On 21 May 2014, the USA requested the extradition of Mr Matson from Australia. An affidavit was sworn on 12 May 2014 in support of the extradition request by Jay G Trezevant, an Assistant United States Attorney ("the Trezevant affidavit"). Mr Trezevant deposed that: At or around the conclusion of the conduct charged in the superseding indictment, all of the charged defendants relocated to areas unknown to law enforcement. 9 Mr Trezevant also deposed that: In or around September 2011, the investigation determined that BARON MATSON/ BRONSTEIN was, or recently had been, residing in Australia at 44 Barron Street, Mount Molloy, Queensland, 4871. 10 On 4 September 2015, the Minister for Justice signed a notice of receipt pursuant to s 16 of the Act stating that the extradition request had been received. 11 On 17 September 2015, a Magistrate issued an extradition arrest warrant under s 12(1) of the Act. Mr Matson was brought before a Magistrate on 26 October 2015 and remanded in custody under s 15(2) of the Act.

THE PROCEEDING AT FIRST INSTANCE 12 Before Magistrate Cosgrove, the USA submitted that the four pre-conditions in s 19(1) of the Act were fulfilled and that his Honour was required to determine Mr Matson's eligibility for surrender. The USA also submitted that the four eligibility criteria in s 19(2) of the Act were established and that Mr Matson was eligible for surrender. 13 Section 19 provides, relevantly: (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 or eligible Federal Court Circuit Judge 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 or Judge considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings; the magistrate or Judge 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 or Judge; (b) where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate of any other documents - those documents have been produced to the magistrate or Judge; (c) the magistrate or Judge is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and (d) the person does not satisfy the magistrate or Judge that there are substantial grounds for believing that there is an extradition objection in relation to the offence. 14 It was common ground between the parties at first instance that the USA is an "extradition country" under ss 5 and 11(1)(a) of the Act and reg 3 of the Extradition (United States of America) Regulations (Cth) ("the Regulations"). Under s 11(1)(b) of the Act and reg 4 of the Regulations, the Act applies to the USA subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to the Treaty on Extradition between Australian and the USA ("the Treaty"), as amended by the Protocol amending the Treaty on Extradition between Australia and the USA ("the Protocol"). The Treaty and Protocol are set out in Schs 1 and 2 of the Regulations. 15 It was also common ground that Mr Matson was an "extraditable person" under s 6 of the Act as he was arrested pursuant to an extradition arrest warrant issued by the USA under s 12 of the Act. 16 Further, it was common ground that Mr Matson had been charged with "extradition offences", within the meaning of s 5 of the Act modified by Art II(1) of the Treaty, as amended by Art 1 of the Protocol, carrying a penalty of imprisonment for a period of more than one year, or by a more severe penalty. 17 It was established before the Magistrate that Mr Matson was on remand under s 15, as required by s 19(1)(a) of the Act. 18 It was also established that the Minister for Justice had given a notice under s 16 of the Act in relation to Mr Matson, as required by s 19(1)(b). 19 On 10 November 2015, the USA applied for s 19 proceedings to be conducted under s 19(1)(c) of the Act. 20 The condition in s 19(1)(d) was satisfied as both parties accepted that they had reasonable time in which to prepare for the proceedings. 21 Before the Magistrate, Mr Matson did not dispute that the four pre-conditions in s 19(1) of the Act were met. Accordingly, the Magistrate was required to proceed to determine whether Mr Matson was eligible for surrender. 22 The issues in dispute between the parties related to the eligibility criteria in s 19(2) of the Act. Before the Magistrate, the solicitor for Mr Matson argued that there were a number of deficiencies in the documents supporting the extradition request and that, accordingly, Mr Matson was not eligible for surrender.

Surrender eligibility criteria 23 The "supporting documents" required to be produced to the Magistrate under s 19(2)(a) are defined in ss 19(3) and (7) of the Act, which provide, relevantly: (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; … (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. … (7) A document that is sought by or on behalf of an extradition country to be admitted in the proceedings is duly authenticated for the purposes of this section if: (a) it purports to be signed or certified by a judge, magistrate or officer in or of the extradition country; and (b) it purports to be authenticated by the oath or affirmation of a witness to be sealed with an official or public seal: (i) in any case - of the extradition country or of a Minister, Department of State or Department or officer of the Government, of the extradition country; or … 24 Section 19(2)(b) is modified by Art XI of the Treaty, as amended by Art 7 of the Protocol, to require the production of further documents to the Magistrate: Todhunter v United States of America (1995) 57 FCR 70 ("Todhunter") at 86 (Black CJ, Gummow and Lindgren JJ), Hermanowski v United States of America (2006) 149 FCR 93 ("Hermanowski") at [47]-[48] (Gyles, Conti and Graham JJ). Article XI as amended provides, relevantly: (1) All requests for extradition shall be made through the diplomatic channel. (2) The request for extradition shall be supported by: (a) documents, statements, or other types of information which describe the identity and probable location of the person sought; (b) a description of the conduct constituting the offence; (c) a statement of the law describing the essential elements of the offence for which extradition is requested; and (d) a statement of the law describing the punishment for the offence and the law relating to the limitation of legal proceedings. (3) A request for the extradition of a person who is sought for prosecution or who has been found guilty in his absence shall also be supported by: (a) a copy of the warrant or order of arrest issued in the requesting State for the arrest of the person for the offence; (b) a copy of the charging document, if any; and (c) a description of the facts, by way of affidavit, statement, or declaration, setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it. … 25 Before the Magistrate, Mr Matson's solicitor submitted that a duly authenticated warrant had not been produced, contrary to the requirements of s 19(3)(a) of the Act and Art XI(3)(a) of the Treaty. The USA relied on a warrant for the arrest of Mr Matson dated 14 November 2011 which purports to be issued by the Clerk of the United States District Court for the Middle District of Florida, but is signed by an unnamed Deputy Clerk. It was submitted that the arrest warrant was not valid as it was not signed by the Clerk as required by r 9 of the USA Federal Rules of Criminal Procedure. 26 However, the Magistrate decided that a line of authorities including Cabal v United Mexican States (No 3) [2000] FCA 1204 ("Cabal (No 3)") at [168] (French J) and Bennett v United Kingdom [2000] FCA 916 ("Bennett") at [23] (Katz J) affected his consideration of this submission. His Honour held that the effect of these authorities is that it is not the function of the Magistrate to look behind the certification process to any statutory requirements of the extradition country governing the certification of official or judicial documents. His Honour held that it was sufficient for the purposes of the s 19 proceedings that the warrant purported to be signed or certified by a relevant officer. 27 Mr Matson's solicitor submitted that for the purposes of s 19(3)(c)(ii) of the Act and Arts XI (2)(b) and (3)(c) of the Treaty, the extradition request was not sufficiently supported by a description of the conduct constituting the offence and did not set forth reasonable grounds for believing that the extradition offences had been committed by Mr Matson. 28 Mr Matson's solicitor submitted that the facts set out in the Trezevant affidavit do not provide reasonable grounds for believing that the actions were carried out with fraudulent design or intent, as they are consistent with Mr Matson having acted as a salesperson or promoter without any intention to defraud anyone. He also argued, relying on a line of authorities starting with Zoeller v Federal Republic of Germany (1989) 23 FCR 282 ("Zoeller") (Lockhart, Gummow and Hill JJ), that the allegations in the Trezevant affidavit were too broad and unspecific to provide reasonable grounds for such a belief. 29 In response, the USA submitted that an adequate description of the offences of conspiracy to commit mail fraud and wire fraud, mail fraud, wire fraud and conspiracy to commit money laundering, the penalty for each offence and a statement of the conduct constituting the offence was provided to the Magistrate in the Trezevant affidavit and in a supplementary affidavit sworn by Mr Trezevant on 16 December 2015 ("the supplementary affidavit"). The USA further submitted that those affidavits set out facts which demonstrate reasonable grounds for believing that the alleged extradition offences had been committed by Mr Matson. 30 Whilst the Magistrate accepted that the Trezevant affidavit "did cause some level of confusion", his Honour found that there were sufficiently clear statements in paragraphs 17, 19, 47 and 48 and in the factual background in paragraphs 33-60 that provided reasonable grounds for believing that the extradition offences were committed by Mr Matson. 31 Section 19(2)(c) requires that if the alleged conduct, or equivalent conduct, had taken place in Queensland at the time at which the extradition request was received that conduct would have constituted an extradition offence. 32 Based on the alleged deficiencies in the description of conduct constituting the offence, Mr Matson's solicitor further submitted that the dual criminality requirement was not satisfied. He submitted that as the description of conduct did not contain specific allegations that Mr Matson's conduct was dishonest, the conduct could not be equivalent to fraud under Queensland law which requires proof of dishonesty. 33 The Magistrate held that if the conduct alleged in the Trezevant affidavit had taken place in Queensland, it would have constituted the offence of fraud, contrary to s 408C of the Criminal Code 1989 (Qld) ("Criminal Code (Qld)"), which carries a maximum penalty of five years' imprisonment, or 12 years' imprisonment where, relevantly, the monetary value of detriment caused exceeds $30,000, and s 541 of the Criminal Code (Qld), which carries a maximum penalty seven years' imprisonment. His Honour was also satisfied that the conduct alleged would constitute an extradition offence under Queensland law. 34 Late in the hearing Mr Matson's solicitor was instructed to raise an objection under s 7(c) of the Act, which provides relevantly: (c) on surrender to the extradition country in respect of the extradition offence, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, sex, sexual orientation, religion, nationality or political opinions… 35 Mr Matson's solicitor put on the record Mr Matson's contentions that: [Firstly] the prosecution of some or all of those charges is statute barred in the United States…[Secondly] that any surrender order would be unjust and oppressive…by reason of delay…and further that any punishment in the United States would be likely to be unjust and oppressive and too severe a punishment by virtue of the maximum penalties set there and also the sentencing regime, which has a tendency to accumulate sentences. [Thirdly] because he is of Indigenous heritage and that would have an effect on him being incarcerated for any lengthy period there. 36 The USA submitted that the first two contentions were irrelevant and impermissible considerations for the Magistrate to take into account, relying on Bennett at [25]: [T]he parliament did not intend it to be part of a magistrate's function under s 19 of the Act to determine what are the facts necessary to constitute the offence in the extradition country according to the law of that country and also did not intend it to be part of a magistrate's function under s 19 of the Act to determine whether a prosecution for the offence in the extradition country would be statute-barred according to the law of that country… 37 In addition, s 11(b) of the Act provides, relevantly: For the purpose of determining under subsection 19(1) whether a person is eligible for surrender in relation to an extradition offence for which surrender of the person is sought by an extradition country, no limitation, condition, qualification or exception otherwise applicable under this section…has the effect of requiring or permitting a magistrate…to be satisfied of any matter other than a matter set out in paragraph 19(2)(a), (b), (c) or (d). 38 The Magistrate decided that this was not the appropriate forum to consider matters of delay or oppression, or allegations that the application was statute-barred. His Honour held that a Magistrate is confined to considering the matters specified in ss 19(1) and (2) of the Act and cannot have regard to other matters falling outside the ambit of those sections due to the limited and administrative nature of the Magistrate's function in s 19 proceedings. 39 Mr Matson's extradition objection was on the basis that he may be unfairly treated or prejudiced as a result of his Indigenous heritage. The USA submitted that under s 19(2)(d) of the Act, Mr Matson bore the onus of satisfying the Magistrate that there are substantial grounds for believing that there is an extradition objection. 40 The Magistrate held that Mr Matson had not discharged the onus of satisfying his Honour that Mr Matson's surrender to the USA would result in him being prejudiced at his trial based on his race. That was because no evidence was put before his Honour supporting that submission.

THE APPLICATION FOR REVIEW 41 Mr Matson's application to this Court for review of the Magistrate's order under s 19(9) is brought under s 21(1) of the Act. 42 Mr Matson was self-represented in the review application. He filed written submissions and made oral submissions at the hearing. Many of the issues currently raised were not raised before the Magistrate. I note that there are two different versions of Mr Matson's written submissions. Mr Matson's second affidavit sworn 24 June 2016 also contains substantive submissions. I will consider all these submissions. 43 In Pasini v United Mexican States (2002) 209 CLR 246, Gleeson CJ, Gaudron, McHugh and Gummow JJ at [18] described the role of the Federal Court of Australia in an application for review: …The magistrate is required to determine administratively whether a person is eligible for surrender to an extradition country. The Federal Court is required to determine whether that decision was right or wrong and, if wrong, what decision should have been made by the magistrate, thereby determining the rights and liabilities of the parties to the review proceedings and, thus, exercising judicial power. 44 There are broadly two issues in the application for review: (a) Whether the Magistrate erred in finding that Mr Matson is an eligible person for surrender - this involves consideration of whether the Magistrate correctly decided that the eligibility criteria under s 19(2) are met ("eligibility issues"). (b) Whether Mr Matson can adduce additional evidence which was not before the Magistrate at first instance in order to support allegations of undue delay, false and fraudulent statements and conspiracy by the USA ("impropriety issues").

Eligibility issues 45 Mr Matson submits that the supporting documents required under ss 19(2)(a) and (b) and 19(3) of the Act and Art XI of the Treaty are deficient.

Whether warrant is duly authenticated 46 Mr Matson argues that the warrant relied on by the USA does not comply with s 19(2)(a) and (3)(a) of the Act and Art XI(3)(a). He submits that it is not duly authenticated and is invalid as it was not signed by the Clerk of the USA District Court. The signature of the Clerk is said to be required by r 9 of the USA Federal Rules of Criminal Procedure. 47 The primary judge was not required to make a substantive determination about the validity of the warrant. It is sufficient that the warrant is provided and purports to be duly authenticated: s 19(7) of the Act. That is because the Magistrate is not an expert in foreign law and is not required or permitted to determine substantive arguments that challenge the validity of documents according to USA law: Kommatas v Hellenic Republic [2014] FCA 1224 at [13], [18] (Logan J); Bennett at [23], [25]; Zoeller at 300. The primary judge was correct to determine that the warrant was a duly authenticated warrant for the purposes of ss 19(2)(a) and (3)(a).

Whether warrant and charging document insufficient and time-barred 48 An original indictment was returned by the grand jury on 26 October 2005 for 15 offences. The grand jury later returned a superseding indictment on 21 December 2005, which added an additional charge of money laundering conspiracy. On each occasion, an arrest warrant was issued. However, the second warrant contained a "scrivener's error" and was re-issued on 14 November 2011. The re-issued warrant is the document annexed to the Trezevant affidavit in Exhibit 3. 49 Mr Matson submits before this Court that both the original warrant and second warrant should have been produced in these proceedings by the USA and therefore Art XI(3)(a) of the Treaty is not met. Further, he submits that the re-issued warrant is time-barred. 50 Mr Matson also submits that a copy of the original charging document (i.e. the original indictment 26 October 2005) is required to be produced under Art XI(3)(b) of the Treaty and that the superseding indictment, which is annexed to the Trezevant affidavit as Exhibit 1, is also time-barred. He alleges that the US Authorities have intentionally never produced the original indictment, the original warrant or the second warrant and that these documents are required to "effectively determine if in fact the charges were correctly laid according to USA law". 51 Mr Matson cites Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684 ("Tervonen") at [30] (Rares J) as authority for the proposition that "If the request for extradition is based on one or more warrants for the arrest of the person, the Attorney-General must be of the opinion that each warrant has been received and that it satisfies the requirements of s 6 of the Act". In Tervonen, eight different warrants had been issued by the extradition country relating to different charges. This can be distinguished from the situation where a warrant has been superseded by a new or amended version. 52 The extradition request is based on and supported by the warrant re-issued on 14 November 2011. The superseded versions of the warrant are not relied on and are not relevant to the extradition request. They are not required to be produced under Art XI(3)(a) of the Treaty. 53 The extradition request relies on the superseding indictment returned on 21 December 2005. The word "superseding" is defined in the Merriam-Webster Dictionary as, relevantly, "to take the place or position of another". The original indictment is not relevant to the extradition request. It is not required to be produced under Art XI(3)(b) of the Treaty. 54 If the warrant and charging document are provided and purport to be valid under foreign law, it is not the role of the Magistrate in s 19 proceedings to engage with substantive arguments of foreign law and determine their validity. In Cabal (No 3) at [145] it was held that neither the Magistrate nor this Court upon review is obliged to inquire into the procedural requirements of the laws of the extradition country associated with the issue of such documents. Therefore the Magistrate was correct to refuse to engage in consideration of whether the documents were time-barred under USA law.

Whether extradition request made through diplomatic channel 55 Mr Matson appears to submit the Art XI(1) of the Treaty has not been complied with. Article XI(1) of the Treaty provides that all requests for extradition shall be made through the diplomatic channel. Mr Matson submits that: This requirement is controversial, as there is an inconsistency with the dates provided in the latest U.S. Authorities Affidavit provided to the U.S. Court. 56 Mr Matson states that the Attorney-General's Department claims to have received the extradition request on 4 September 2015, whereas the USA authorities claim that it was accepted in May 2014. 57 Mr Matson's submission is based on a misconstruction of the "Notice of Receipt of Extradition Request" provided by the Minister for Justice pursuant to s 16 of the Act. That Notice is dated 4 September 2015: that is, the Notice was prepared on 4 September 2015. Contrary to Mr Matson's interpretation, the Notice does not purport to say that the date of receipt of the extradition request was 4 September 2015. There is no material before the Court that could support any allegation that the extradition request was not received through the diplomatic channel.

Whether probable location identified 58 Mr Matson next submits that the requirements of Art XI(2)(a) of the Treaty have not been met, as the documents supporting the extradition request do not state Mr Matson's probable location. In fact, the Trezevant affidavit at [61] sets out Mr Matson's last known addresses. In my opinion, the requirements of Art XI(2)(a) are satisfied.

Whether statement of the law describing punishment for offences and limitation given 59 Mr Matson submits that Art XI(2)(d) of the Treaty, which requires a statement of the law describing the punishment for the offences and the law relating to the limitation of legal proceedings, is not satisfied. 60 Mr Matson argues that there is no satisfactory description of the punishment for the offences. The Trezevant affidavit at [11] sets out the maximum penalty for each offence. It also exhibits a copy of each relevant provision of the US Criminal Code which sets out the penalties for each offence. In my opinion, the material sufficiently describes the punishment for each offence for the purposes of Art XI(2)(d). Contrary to Mr Matson's submission, there is no requirement to go further and describe the way USA law operates with respect to cumulative sentences. 61 Mr Matson also argues that the description of "the law relating to the limitation of legal proceedings is not satisfactory, the USA has several Laws (sic) relating to limitation Legal (sic) proceedings". The Trezevant affidavit at [29] states that the applicable statute of limitations is Title 18, United States Code, Section 3282, which allows the prosecution to commence within five years after an offence is committed. It explains when, under USA law, an offence is taken to be committed. The affidavit exhibits a copy of the provision. It states that all the charges were brought within the prescribed time and explains why that is so. In my opinion, the requirements of Art XI(2)(d) are satisfied.

Whether insufficient description of facts and conduct 62 Mr Matson argues that s 19(3)(c)(ii) of the Act and Art XI(2)(b) of the Treaty, which require the conduct constituting the offences to be set out, are not satisfied. He also argues that Art XI(3)(c) of the Treaty, which requires a description of the facts setting forth reasonable grounds for believing that the offences were committed by him, is not satisfied. 63 Mr Matson submits that the Trezevant affidavit does not provide sufficient facts to ground a reasonable belief as the affidavit is so vague and general or disorganised that the relevant acts and omissions cannot be reasonably identified. He argues that only a "broad brush" picture is identified and it lacks specific allegations of dishonesty required by the extradition offences and, relatedly, that the facts are consistent with an alternative hypothesis of innocence or a defence that Mr Matson worked as a promotor of a legitimate business. 64 Section 19(3)(c)(ii) requires a statement which lies at a level of abstraction between the formal statement of the elements of the offence and an account of the evidence relied on to prove the relevant conduct: Truong v R (2004) 223 CLR 122 at [29] (Gleeson CJ, McHugh and Heydon JJ); Hermanowski at [60]-[61]. 65 For Art XI(3)(c), the relevant material need only be such as to disclose the existence of facts which are sufficient to induce the requisite belief in a reasonable person: Ngo v United States of America (2009) 177 FCR 411 ("Ngo") at [53]-[59] (Graham J); Hermanowski at [58]-[62]; Griffiths v United States (2005) 143 FCR 182 ("Griffiths") at [50]-[55] (Whitlam, Finn and Conti JJ). 66 The Magistrate's function under s 19 is not to determine what minimum facts are required to constitute a foreign offence: Griffiths at [54]; Hermanowski at [50]; Zoeller at 300. 67 The Trezevant affidavit exhibits the superseding indictment and canvasses the elements of the extradition offences Mr Matson has been charged with, the factual basis for the charges and the evidence that will be relied on at trial. This evidence includes the testimony of "victim-investors" and an alleged co-conspirator who has pleaded guilty and is cooperating with the USA, as well as copies of the allegedly false and fraudulent documents sent to investors and business and financial records. 68 The Trezevant affidavit does address dishonest conduct. The affidavit contains allegations that Mr Matson, together with his alleged co-conspirators, created and sent various documents that contained "false and fraudulent statements, promises and representations in order to lure the individuals into investing in one or more fraudulent schemes". These statements are said to have included "false assertions about the wealth and historical financial successes of Roger Bronstein and others from participating in one or more of the offered programs, as well as false assertions concerning the profits that would be and were being earned from the programs". 69 The affidavit gives examples of the experiences of the "victim-investors", including the representations made to them, the amounts they invested and the allegation that they have not recouped any part of their investments. The affidavit alleges that Mr Matson and his co-conspirators vanished with substantially all the investor's money in about November 2000. 70 The question for determination for Art XI(3)(c) is, assuming that the facts presented in the affidavit to be correct, whether the facts provide reasonable grounds for believing that the extradition offences have been committed by the appellant: Ngo at [59]. The fact that there is arguably an alternative hypothesis of innocence or that there is a potential defence to the allegation that the representations were false or fraudulent could not prevent the Magistrate from deciding that the facts provide reasonable grounds for believing that the offences were committed by Mr Matson. 71 It should be noted that the Magistrate should not take an "overly technical or unduly zealous approach to detecting deficiencies in the material": Zoeller at 294; O'Donoghue v Ireland [2009] FCAFC 184 at [46] (Finn, Gilmour and McKerracher JJ). Although the affidavit does not explicitly identify each of Mr Matson's alleged acts or omissions in relation to each extradition offence, it is not necessary to segregate each of the acts and omissions relied on for each offence, as long as the required information can be reasonably identified: McDade v United Kingdom [1999] FCA 1868 at [25]-[27] (Kenny J, French and Marshall JJ agreeing). 72 I can detect no error in the Magistrates' conclusion that the Trezevant affidavit provides sufficient facts to satisfy s 19(3)(c)(ii) of the Act and Arts XI(2)(b) and (3)(c) of the Treaty.

Whether dual criminality requirement satisfied 73 Although it is unclear whether Mr Matson agitates the issue of dual criminality on review, I will deal with the issue for completeness. Having concluded above that the Trezevant affidavit contains allegations of dishonest conduct and acts involving the making of false and fraudulent statements, I am satisfied that the Magistrate was correct in finding that the alleged conduct would constitute offences against ss 408C and 541 of the Criminal Code (Qld) for the purposes of s 19(2)(c) of the Act.

Impropriety issues 74 I will deal with Mr Matson's submissions concerning the eligibility criteria under s 19(2)(d) of the Act together with the impropriety issues. It is first necessary to consider the admissibility of evidence that Mr Matson seeks to adduce in the review.

Adducing evidence not before the Magistrate - allegations of delay, fraud and falsity 75 Mr Matson seeks to adduce a number of documents which were not before the Magistrate at first instance, namely six additional documents and two affidavits sworn by Mr Matson on 24 June 2016 and 27 June 2016. Mr Matson seeks to rely on these documents in order to prove that there was intentional and oppressive delay by the USA in arresting him in order to "bolster their investigation on a weak prosecution". He alleges that the USA misled the Magistrate by relying on the Trezevant affidavit and supplementary affidavit, which he says contain false and fraudulent statements to the effect that the USA authorities did not know his location. He alleges that USA and Australian authorities conspired to delay the proceedings, to mislead the Magistrate and "cover up" knowledge of Matson family members whereabouts. 76 Section 21(6)(d) provides, relevantly, that "the court to which the application or appeal is made shall have regard only to the material that was before the magistrate or Judge". 77 The USA objects to the admission of the further evidence on the basis that further evidence is excluded under the Act and on the basis that is irrelevant. The USA also raised public interest immunity in its written submissions but did not press this ground in oral submissions. 78 Mr Matson relies on the judgment in Todhunter v Attorney-General (Cth) (1994) 52 FCR 228 at first instance where further evidence was received by the Court despite s 21(6)(d) in circumstances where it was alleged that the USA had made knowingly untrue statements about the limitation period, and the purpose of the additional evidence was to demonstrate the falsity of that evidence. 79 The two statements that Mr Matson identifies in the Trezevant affidavit as being untrue are: • At or around the conclusion of the conduct charged in the superseding indictment, all of the charged defendants relocated to areas unknown to law enforcement. • However, shortly after the Melbourne Cup horse race [in November 2000] Baron Matson Bronstein, Gordon Grant and Roger Matson Bronstein vanished along with substantially all of the investor's money. 80 Mr Matson seeks to rely on documents he obtained after the hearing before the Magistrate which he says demonstrate the falsity of these statements and an intention by the USA to mislead the Magistrate. One document shows that in April 2000, Australian authorities received requests from US law enforcement authorities which asked Australian authorities to conduct an investigation into a suspected fraud on the part of Mr Matson and others. Another document shows that in 2005, the Australian Federal Police were aware of Mr Matson's address. 81 The documents that Mr Matson seeks to rely on are not capable of demonstrating that the two statements in the Trezevant affidavit were knowingly untrue or that there was an attempt to deliberately mislead the Magistrate. The impugned statements are to the effect that in about November 2000, Mr Matson and the others "relocated to areas unknown to law enforcement" and "vanished". The documents relied on by Mr Matson are not inconsistent with those statements. They do not show, or even tend to show, that the Trezevant statements were false, let alone knowingly false. 82 Mr Matson also states that he returned from Australia from the USA at the end of 2000 on his own passport. He says this demonstrates that USA and Australian law enforcement authorities must have known his whereabouts. However, even if USA law enforcement authorities could have established that Mr Matson was in Australia by making enquiries that does not suggest that they in fact knew where he was within Australia. Mr Matson's statement, even if it had been given by way of affidavit or in oral evidence, does not demonstrate, or tend to demonstrate, the falsity of the two statements he identifies in the Trezevant affidavit. 83 To the extent that Todhunter at first instance may be authority for the proposition that despite s 21(6)(d) of the Act, material not before the Magistrate is admissible to demonstrate the falsity of material that was before the Magistrate, that case is distinguishable. The further material does not, and does not even tend to, demonstrate the falsity of material before the Magistrate. 84 There are a number of other "untrue statements" that Mr Matson highlights in his submissions drawn from a document titled the "Government's response in opposition to defendant Roger Matson's motion to dismiss". As this document was not before the Magistrate in these proceedings it cannot be said to have misled the Magistrate. 85 Mr Matson makes a number of serious allegations about the conduct of the USA authorities generally, including that there was intentional and oppressive delay by the USA in arresting him in order to "bolster their investigation on a weak prosecution" and that such conduct constitutes bad faith, an abuse of process and breach of natural justice. 86 The scope of the proceedings under s 19 of the Act and the jurisdiction of the Magistrate are limited. The determination is an administrative step in a wider extradition process and is not a trial on the merits of the case: s 11(6) of the Act; Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 537-538 (Brennan CJ, Dawson and McHugh JJ); Vasiljkovic v Commonwealth (2006) 227 CLR 614 at [23] and [33]-[34] (Gleeson CJ). 87 In Forrest v Kelly (1992) 34 FCR 74, the Full Court held at 79-81 that: The provisions of the Extradition Act 1988 which apply to this case confer no power on a magistrate to dismiss an application for the surrender of a person on the ground that it represents an abuse of process or that delay would cause any trial in the requesting country to be unfair. … Section 19(1) provides that where the magistrate determines that the person is "eligible for surrender", he or she "shall" by warrant commit the person to prison. A person is "eligible for surrender", according to s 19(2), if the necessary documents are produced to the magistrate, the magistrate is satisfied that the conduct they allege would constitute an offence within the part of Australia where the proceedings are being conducted, and the person does not demonstrate "that there is an extradition objection in relation to the offence". Section 7 defines "extradition objection" in terms which make no reference to abuse of process or delay. … The entitlement of a court to protect itself from that type of abuse [i.e. abuse of process] is an entirely different matter from the entitlement of a magistrate to refuse a genuine application because of delay in the foreign country where the crime is said to have been committed. Counsel for the appellant submitted that, if the magistrate had no power to refuse extradition because of such delay, there would be no recourse available to an extraditee effected by delay. It follows from what we have said that we do not think that a magistrate has power to stay extradition proceedings because of this type of delay. But we do not doubt that the Attorney-General may take delay, and any consequential hardship, into account in determining whether to surrender a person to a requesting State…The Attorney-General may decline extradition for any reason which he or she thinks appropriate. Those reasons include that the request for extradition has been unduly delayed. See also Grassby v R (1989) 168 CLR 1; Wiest v Director of Public Prosecutions (1988) 23 FCR 472. 88 Similarly, in Papazoglou v Republic of the Philippines (1997) 74 FCR 108, the Full Court held at 130-132: The most important consideration, in determining whether a magistrate performing functions under s 19 of the Extradition Act has an implied power to stay the proceedings as an abuse of process, is the language used in that section. The terms of s 19 are very difficult indeed to reconcile with any such implied power. Section 19(1) provides that, where the four specified preconditions are satisfied, the magistrate "shall conduct proceedings to determine whether the person is eligible for surrender". The mandatory language is significant. Moreover, the magistrate is required to conduct the proceedings for the specified purpose and only for that purpose. … [Section] 19(2) does not empower the magistrate to refuse to make a decision that a person is or is not eligible for surrender, on the ground that the proceedings constitute an abuse of process. Section 19 contemplates that the magistrate will proceed to make a determination as to whether the person is eligible for surrender. It does not contemplate that the proceedings will be terminated in some other way. …Whether the magistrate has an implied power to terminate the proceedings for an abuse of process must depend on the legislative intention, as revealed by the language and structure of the Extradition Act. To adopt what was said by Dawson J in Grassby v R, there is no room in the face of the statutory obligations contained in s 19, couched as they are in mandatory terms, for the implication of a discretionary power to terminate the proceedings in a manner other than that provided in the section itself. 89 It follows that Mr Matson's allegations of delay, abuse of process, oppressive conduct and denial of natural justice by the USA were not relevant to the Magistrate's determination under s 19 of the Act. The new material relied on by Mr Matson to attempt to demonstrate these matters are irrelevant to the application for review. 90 The further documents sought to be relied on by Mr Matson are not admissible in the application for review.

Section 7 extradition objection 91 Under s 19(2)(d) of the Act, the onus is on Mr Matson to satisfy the Magistrate that there are substantial grounds for believing that there is an extradition objection. Mr Matson's submissions appear to confound extradition objections under s 7 of the Act with more general claims that the conduct of the proceedings has breached the requirements of natural justice, the rule of law and other human and constitutional rights. 92 Mr Matson raises an extradition objection on the grounds of race and nationality under s 7(c) of the Act. In Republic of Croatia v Snedden (2010) 241 CLR 461 at [69]-[70], the High Court held that s 7(c): …requires a causal connection between the punishment the respondent might suffer on trial, after surrender, and his [race or nationality]. The phrase "by reason of" means that the person may be punished, detained or restricted in his or her personal liberty because of his or her [race or nationality]. 93 Mr Matson has pointed to prejudice, including undue delay and severity in sentencing in the USA. However, there is no evidence that any such prejudice would be because of his race or nationality. To the extent that Mr Matson relies on general human rights and the International Covenant on Civil and Political Rights ("ICCPR") in relation to s 7(c), these allegations do not provide any proof of a causal connection required to satisfy the Magistrate that the extradition objection has been established. The Magistrate was correct in finding that Mr Matson had not discharged the onus of proof to establish an extradition objection. 94 To the extent that Mr Matson submits that allegations of delay and abuse of process are extradition objections within the meaning of s 7 of the Act, that submission must be rejected: Forrest v Kelly at 80.

Other matters - humans rights considerations 95 Mr Matson further submits that s 19(1) and (2) do not provide an exhaustive list of the matters which are to be taken into account to determine surrender eligibility and therefore this Court should take into consideration "general human rights objections" and, amongst other things, rights under the ICCPR, breaches of natural justice and the rule of law. 96 However, as outlined above, the relevant considerations are limited to those set out in s 19(1) and (2) of the Act and accordingly the Magistrate, and this Court on review, does not have jurisdiction to consider these submissions. Any general human rights objections, arguments of breach of natural justice and the rule of law or claims for rights under the ICCPR are not relevant at this stage of the proceedings. The Magistrate was correct in refusing to consider submissions regarding "general human rights". 97 For the reasons indicated above, there is no error in the decision of the Magistrate. The application must be dismissed with costs. I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.

Extradition Act 1988(Cth)ss 2, 5, 6, 7, 11, 12, 15, 16, 19, 21, and

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