Mayhew v United States of America

REASONS FOR JUDGMENT WILCOX J: 1 There is before the Court a single proceeding in which the applicant, Delbert Kenneth Mayhew, makes two separate claims. 2 First, the applicant seeks an order under s 21(2)(b) of the Extradition Act 1988 (Cth) ('the Act') quashing a decision of New South Wales magistrate Leslie Brennan, the second respondent, determining that the applicant is eligible for surrender to the United States of America ('the United States'), the first respondent to this proceeding, in relation to six United States taxation offences. 3 Second, the applicant seeks declarations and orders, under s 39B of the Judiciary Act 1903 (Cth) ('the Judiciary Act'), in relation to certain items of property taken from the applicant's luggage at Sydney Airport at about the time of his arrest on an extradition warrant. Because of his application for this relief, the applicant has joined in the proceeding the Commissioner of the Australian Federal Police (the third respondent) and the Commonwealth Attorney-General (the fourth respondent). 4 In accordance with usual practice, the magistrate, Mr Brennan, made a submitting appearance. Mr P Hastings QC appeared on behalf of the other three respondents, contesting the applicant's claims. Mr N Williams SC and Mr J Hmelnitsky appeared for the applicant. Arrest of the applicant 5 On 12 November 2003, a New South Wales magistrate, Paul Stanislaus Cloran, issued a warrant under s 12(1) of the Act,directed to all police officers within the meaning of the Act, authorising the applicant's arrest. The warrant recited both Mr Cloran's receipt of an application for a warrant from the United States and his satisfaction, on the basis of an affidavit placed before him, that the applicant was 'an extraditable person' for the purposes of the Act in relation to the United States. 6 Later that day, at about 3.40 pm, the applicant was arrested as he was taking his seat on an Air New Zealand flight from Sydney to Auckland. He was travelling on a New Zealand passport issued in his correct name. The applicant is apparently a New Zealand citizen. The applicant was arrested only pursuant to the warrant issued by Mr Cloran. At that stage, there was apparently no thought of charges being laid against the applicant in relation to offences against Australian or New South Wales law. There has never been any suggestion that he was travelling, on this occasion, under a false passport. 7 At about the time that the applicant was arrested, officers of the Australian Federal Police ('the AFP') caused Air New Zealand employees to retrieve the luggage that the applicant had delivered to the airline when he checked in for the Auckland flight. Although the AFP officers had no warrant authorising them to do so, they searched the applicant's luggage and seized its contents. A property seizure record made that day lists some 150 items. Most of the seized items were articles of clothing and personal items. They had no conceivable relevance to any criminal offence. However, a few items had arguable relevance to criminal activity. There was a New Zealand passport bearing a photograph of a person resembling the applicant, but in the name of 'John Loftus Tottenham' ('the Tottenham passport'), and three credit cards in the name of 'John L Tottenham' ('the Tottenham credit cards'). 8 After his arrest, the applicant was taken into custody, where he remains. On the morning after his arrest, he was presented to the Central Local Court in connection with five matters: the warrant relating to extradition to the United States; one offence under the Passports Act 1938 (Cth); and three offences under the Crimes Act 1900 (NSW)('the Crimes Act'). The four local charges arose out of the applicant's alleged possession of the Tottenham passport and the Tottenham credit cards. In order to make good the selected charges, the prosecutor would have had to establish the falsity of these documents. 9 Apparently, there was no substantial hearing on 13 November 2003; the applicant was remanded in custody until 13 January 2004. 10 When the applicant was brought before the Local Court on 13 January 2004, the prosecutor abandoned the four local charges laid against him in November. The prosecutor substituted four charges, purportedly under s 527C of the Crimes Act. This section makes it an offence for a person to have in his or her custody a thing that 'may be reasonably suspected of being stolen or otherwise unlawfully obtained'. The charges alleged that the applicant 'between 3.40 pm and 3.45 pm on 12/11/2003 at Mascot did have in his custody' the Tottenham passport and the Tottenham credit cards. However, none of the charges, as framed, alleged that the relevant document was stolen or otherwise unlawfully obtained. The Local Court hearing 11 For reasons which have not been explained, there was a considerable delay in hearing any of the matters raised against the applicant. That is despite the fact that, on 9 January 2004, the Commonwealth Attorney-General had issued a statement, under s 16(1) of the Act, that 'an extradition request has been received from the United States, an extradition country', in relation to extradition offences, being '[s]ix counts of making a false declaration under penalty of perjury on corporate and individual tax returns, contrary to Title 26 of the United States Code Section 7206(1)'. 12 At some stage, it was determined that all the matters involving the applicant should be heard over three days from Monday, 10 May 2004. On the Friday before the projected hearing, an officer of the Commonwealth Director of Public Prosecutions ('the DPP') notified the applicant's solicitors that the prosecution would proceed on only one charge pursuant to s 527C of the Crimes Act, being the goods in custody charge relating to possession of the Tottenham passport. 13 The first two days of hearing were devoted to the extradition application. Counsel for the DPP tendered the Attorney-General's s 16(1) statement and three large bundles of documents, apparently certified by United States officials. Those documents included an affidavit of Lisa E Feldman, an Assistant United States Attorney for the Central District of California, sworn on 15 December 2003. One of the attachments to this affidavit was a document purporting to be an indictment of the applicant. It contained six charges, each of which was said to be based on Title 26 of the United States Code Section 7206(1). Charges 1 and 2 related to the income tax returns of a corporation, Ken Mayhew Construction Corporation, for 1991 and 1992 respectively. Counts 3 to 6 related to the applicant's personal income tax returns, for the years 1992, 1993, 1994 and 1995 respectively. Each charge alleged that the applicant, a California resident, 'knowingly and willfully made and subscribed to, under penalty of perjury', the relevant false return, which the applicant 'did not believe to be true and correct as to every material matter because he failed to report in that return' specified taxable income, 'although he then and there well knew and believed' that the corporation or himself 'had received that taxable income'. 14 Part C of Ms Feldman's affidavit was headed 'Identification of Offences and Penalties'. The Part commenced with the following paragraphs: 'The Indictment charges MAYHEW with six counts of violating Title 26, United States Code, Section 7206(1). The maximum sentence that MAYHEW faces on each of the six counts of the Indictment is three years in prison, a fine of $250,000, a one-year term of supervised release (parole-type supervision of a defendant following his release from imprisonment) pursuant to Title 18, United States Code, Sections 3583(b)(3) and 3581(b)(5), and a special assessment (a revenue-raising monetary penalty) pursuant to Title 18, United States Code, Section 3013(a)(2)(A), of $50 for offenses committed before April 24, 1996 (Counts One through Four), and $100 for offenses committed on or after April 24, 1996 (Counts Five and Six). A violation of Title 26, United States Code, Section 7206(1), is a felony under the laws of the United States because it provides for a possible term of imprisonment exceeding one year. The United States requests the extradition of MAYHEW for the offenses enumerated in Counts 1 through 6 of the above-referenced Indictment (Indictment Number CR 97-1211). The federal criminal statute charged was in full force and effect at the time when the charged offenses were committed and when Indictment Number CR 97-1211 was filed, and remains in full force and effect to date. Under the laws of the United States, all of the offenses charged in the Indictment and set forth in the Warrant For Arrest of MAYHEW in No. CR 97-1211 are offenses for which extradition may be granted under the law of the United States. As set forth below, each count of Indictment Number CR 97-1211 was charged within the time permitted by the applicable statute of limitations. MAYHEW is charged in the Indictment with six counts of making a false declaration under penalty of perjury, in violation of Title 26, United States Code, Section 7206(1). Specifically, the Indictment charges that MAYHEW committed the following offenses.' 15 The final quoted paragraph went on to give additional particulars about each of the six charges. Much of this material was attributed to an affidavit of Laura D Hillhouse, a Special Agent with the Criminal Investigation Division of the Internal Revenue Service, United States Department of the Treasury. Ms Hillhouse's affidavit was also attached to the affidavit of Ms Feldman. 16 After considerable debate, on the second day of the hearing, the magistrate made the following finding: 'It is my finding that the conduct constituting the offence is best set out in the indictment, or in the indictments because there is more than one count, which forms exhibit 1 to the documents tendered together with that material listed in pt 3 of Ms Feldnan's [sic] statement commencing on p 7 under the heading "See Identification of Offences and Penalties" and going through to p 14 where there is a new heading "D. Status of the Case" but not including that. So that is the material that I think succinctly sets out the conduct constituting the offences.' 17 The magistrate turned to the matter of domestic criminality; that is, whether the alleged conduct constituting the extradition offences was conduct that, had it taken place in the part of Australia where the extradition proceedings were being conducted at the time the extradition request was received, 'would have constituted an extradition offence in relation to that part of Australia': see the Act s 19(2)(c). After argument on the point, the magistrate resolved that issue adversely to the applicant. His ruling on the point is criticised in this Court by counsel for the applicant to the extent that they contend that the magistrate identified the wrong provision of the Criminal Code (Cth), but they do not contend that the magistrate erred in holding that domestic criminality was established. Accordingly, I need say no more about it. 18 After dealing with the issue of domestic criminality, the magistrate asked whether there was any extradition objection: see ss 7 and 19(2)(d) of the Act. There was not. So he announced he would issue a warrant, pursuant to s 19(9)(a) of the Act, ordering that the applicant be 'committed to prison to await surrender under a surrender warrant or temporary surrender warrant or released [sic] pursuant to an order under s 22(5)'. The magistrate subsequently signed a formal record of the extradition offences in relation to which he had determined that the applicant was eligible for surrender. The schedule to this document set out the six offences charged in the indictment. 19 The magistrate then turned to the goods in custody charge relating to the Tottenham passport. The magistrate pointed out that the charge was defective. It contained no allegation that the Tottenham passport might be 'reasonably suspected of being stolen or otherwise unlawfully obtained' as required by s 527C of the Crimes Act. The prosecutor sought to amend the charge but was out of time to do this. Accepting this, the prosecutor acquiesced in the dismissal of the charge. In the result, therefore, the applicant was not convicted of any local offence. No local charge is now pending against him. The proceeding in this Court 20 Notwithstanding the absence of any local conviction or charge, after 12 May 2004, the AFP refused to release to the applicant those items of property which had been taken from his luggage on 12 November 2003 and were still in the AFP's possession. Accordingly, when, on 26 May 2004, the applicant commenced this proceeding to challenge the extradition order, he added a claim in relation to the property. 21 The filed application was said to be based upon s 21(2)(b) of the Act and s 39B of the Judiciary Act. It claimed the following relief: '1. An order pursuant to section 21(2)(b) of the Extradition Act 1988 that the order of the second respondent dated 12 May 2004 pursuant to section 19(9) of the Extradition Act 1988 be quashed. 2. A direction that the second respondent order the applicant to be released. 3. A declaration that the property described in annexure "A" to this Application (the "Property") was unlawfully seized by the third respondent. 4. An order that the fourth respondent, by himself, his servants and agents, be restrained from sending the Property to the first respondent or any officer of the first respondent pursuant to section 27 of the Extradition Act 1988 or otherwise. 5. An order pursuant to section 319 of the Criminal Procedure Act 1986 (NSW) that the third respondent deliver the Property to the applicant. 6. Costs.' (original emphasis) 22 Annexure A to the application was the list of items of property seized by the AFP from the applicant's luggage on 12 November 2003, most of which items were apparently still in the possession of AFP officers. At a directions hearing on 23 June 2004, there was discussion about proposed orders 3, 4 and 5. I noted the list of property set out in annexure A to the application and observed that it was difficult to see what justification there could be for the AFP withholding most of the articles in that list from the applicant. Possibly as a result of that observation, most of the articles were returned to the applicant prior to the hearing of the matter on 19 August 2004. Nonetheless, 16 items were then still withheld by the AFP. All of them were documents, mostly bearing the name 'John L Tottenham' or 'J L Tottenham'. The extradition issue (i) Applicant's submissions 23 Counsel for the applicant argued that the magistrate erred in three respects: (a) 'in considering that "supporting documents" within the meaning of section 19 of the Act had been produced to him'; (b) '[h]aving regard to the requirements of Article XI of the Treaty on Extradition Between Australia and the United States of America, Australian Treaty Series 1976, No. 10 (as varied by the Protocol, Australian Treaty Series 1992, No. 43), the second respondent erred in: (i) [f]ailing to conclude that a description of the conduct constituting the offence had not been produced to him; and (ii) taking into consideration for the purpose of section 19(2)(c) allegations of conduct other than conduct constituting the offence'; and (c) 'in being satisfied of the matters referred to in section 19 of the Extradition Act 1988'. 24 Critical to each of these grounds is s 19(3)(c)(ii) of the Act. In order to understand the significance of that subparagraph, it is necessary to note that s 19(2) of the Act sets out the conditions that must be fulfilled if a person is to be judged eligible for surrender in relation to an extradition offence for which the person's surrender is sought. One of those conditions is that 'the supporting documents in relation to the offence have been produced to the magistrate'. Subsection (3) of s 19 explains what is meant by the term 'supporting documents'. Paragraph (b) may be disregarded; it applies only where the extradition is for an offence for which the person has already been convicted. However, paras (a) and (c) are relevant. They read: '(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.' 25 Counsel for the applicant argued that the United States did not tender to the magistrate 'a duly authenticated statement in writing setting out the conduct constituting the offence', as required by s 19(3)(c)(ii) of the Act. That being so, they contended, the magistrate ought not to have made an order that the applicant was eligible for surrender to the United States. It was erroneous, say counsel, for the magistrate to have sought to determine, from a large quantity of material, what was the relevant conduct; it was not for him to make a 'finding' as to where the conduct 'was best set out' or 'succinctly' set out in the material placed before him. 26 Counsel for the applicant emphasised the importance of identifying the offence or offences upon which a person is deemed eligible for extradition. They pointed out that identification is essential to the operation of any speciality assurance under s 22(3)(d) of the Act (see para 28 below). 27 In the case of persons extradited from Australia to the Unites States, a relevant protection is provided by Article XIV of the 1974 Treaty on Extradition between Australia and the United States of America, as amended in 1990. The original treaty and the amending protocol are set out in schedules to the Extradition (United States of America) Regulations 1998 (Cth). Article XIV(1) reads: 'A person extradited under this Treaty may not be detained, tried, or punished in the requesting State except for: (a) the offence for which extradition is granted or any other offence of which the person could be convicted on proof of the conduct constituting the extradition offence provided that the offence carries the same or a lesser punishment; (b) any offence committed after the extradition; or (c) any offence for which the executive authority of the requested State consents to the person's detention, trial or punishment. For the purposes of this subparagraph, the requested State may require the submission of the documents specified in Article XI.' 28 Counsel for the applicant noted that s 22(3)(d) of the Act carries the concept of speciality assurance into Australian domestic law. The paragraph provides that the eligible person 'is only to be surrendered in relation to a qualifying extradition offence' if (amongst other things) 'the extradition country concerned has given a speciality assurance in relation to the person'. Section 22(4) explains what that means. The subsection provides: 'For the purposes of paragraph (3)(d), the extradition country shall be taken to have given a speciality assurance in relation to the eligible person if, by virtue of: (a) a provision of the law of the country; (b) a provision of an extradition treaty in relation to the country; or (c) an undertaking given by the country to Australia; the eligible person, after being surrendered to the country, will not, unless the eligible person has left or had the opportunity of leaving the country: (d) be detained or tried in the country for any offence that is alleged to have been committed, or was committed, before the eligible person's surrender other than: (i) any surrender offence; (ii) any offence (being an offence for which the penalty is the same or is a shorter maximum period of imprisonment or other deprivation of liberty) of which the eligible person could be convicted on proof of the conduct constituting any surrender offence; (iii) any extradition offence in relation to the country (not being an offence for which the country sought the surrender of the eligible person in proceedings under section 19) in respect of which the Attorney-General consents to the eligible person being so detained or tried; or (e) be detained in the country for the purpose of being surrendered to another country for trial or punishment for any offence that is alleged to have been committed, or was committed, before the eligible person's surrender to the first-mentioned country, other than any offence in respect of which the Attorney-General consents to the eligible person being so detained and surrendered.' 29 In their written submissions, counsel for the applicant said: 'Each of these international law protections depends for its operation on the identification of the extradition offence and the conduct which constitutes it. For this reason, Article XI(2)(b) of the Treaty requires the USA to furnish a "description of the conduct constituting the offence". This requirement is, in turn, reflected in the Act. By s 10(2), "conduct constituting an offence" is given the following meaning: 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. The Act gives this provision content, both for the purposes of S. 19 and S. 22, by requiring the production of a statement to the Magistrate which sets out to conduct [sic] constituting the offence.' 30 Counsel concluded this part of their argument by saying: 'The requirement that the requesting state tender a duly authenticated statement in writing setting out the conduct constituting the offence for which extradition is sought is therefore fundamental to the scheme of the Act and to the international law rights and obligations contained in the Treaty.' 31 Against this background, counsel argued, it was necessary for the United States to tender to the magistrate 'an identifiable statement of conduct constituting the extradition offence'. They conceded such a statement may, by reference, incorporate material in another document or documents: see Wiest v Director of Public Prosecutions (1988) 23 FCR 472 ('Wiest')per Gummow J at 519. But, counsel argued, 'that does not permit a magistrate to rove through wide-ranging material with a view to finding some combination or selection of documents where the conduct is "best set out", or is "succinctly" set out'. 32 Counsel submitted that the phrase 'acts or omissions … by virtue of which the offence has, or is alleged to have, been committed', which is used in s 10(2) of the Act, is to be read into s 19(3)(c)(ii). They said this 'refers to the elements or ingredients of the offence, not the particular evidence adduced to prove those acts or omissions': see Wiest at 519 and Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 294. The material in Ms Hillhouse's affidavit, they said, went well beyond a statement of elements or ingredients; it contained evidentiary detail. Accordingly, that affidavit could not be regarded as a 'statement in writing setting out the conduct constituting the offence' for the purposes of s 19(3)(c)(ii) of the Act. 33 It is not necessary for me to detail the whole of the lengthy written submission of counsel for the applicant. However, I note this key submission: 'The Magistrate has erred by addressing the wrong question. Whether or not a statement in writing setting out the conduct constituting the offence has been produced is essentially a formal question, raising the issue whether a document meeting that description had been tendered. The Magistrate did not address that question, but instead asked what the conduct was, or where the conduct constituting the offences was "best set out", or "succinctly" set out. Here, in any event, a statement meeting the statutory description had not been tendered. The material that was relied on was either the whole four volume affidavit and annexures, or alternatively a combination of material sought to be extracted from a section of the Feldman affidavit dealing with "identification of offenses and penalties," the indictment and the Hillhouse affidavit.' (ii) Respondents' submissions 34 Mr Hastings, counsel for the first, third and fourth respondents, noted authority for the proposition that the 'duly authenticated statement in writing' required by s 19(3)(c)(ii) may consist of a number of documents: see McDade v United Kingdom [1999] FCA 1868 ('McDade'). In that case, Kenny J (with whom French and Marshall JJ agreed) said at para 30: 'Section 19(3)(c)(ii) requires a "statement in writing" of relevant matters. Nothing in the Act expressly requires the statement to be contained in only one document. There is, it seems to me, no justification in principle or in practice for any such requirement. Indeed, the Court has accepted that a statement for s 19(3)(c)(ii) purposes may be constituted by a number of documents ... The critical factor is that, collectively, the documents constitute a duly authenticated statement in writing of the relevant acts and omissions, being acts and omissions which are readily and clearly identifiable by reference to those documents.' 35 Counsel for the respondents argued that what is important is not what was submitted to the magistrate by the United States, but what was found by him. Counsel noted the magistrate's finding that the statement of conduct was constituted by the indictment and a relatively short portion of Ms Feldman's affidavit. He submitted this material 'adequately defines the matters in respect of which the Applicant may be tried upon his return to the USA'. Counsel noted Gummow J's comment, in Wiest at 519, that 'whether a proffered statement meets the description of requirement (C) [of the previous legislation] presents a matter for practical judgment and assessment, not for overzealousness in discerning deficiencies'. 36 In his written submission, counsel went on: 'It is wrong to attack the Magistrate's use of language ("my finding" and "succinctly") and to do so obscures what he actually did. The Act only requires that the Magistrate be "satisfied". It is clear that he was satisfied that part of the documents relied on by the First Respondent amounted to, or constituted, a statement of conduct. The purpose of S.19(3)(c) and Article XIV of the Treaty (as amended) is to do no more than identify those acts and omissions (i.e. the conduct) in respect of which the fugitive is found to be eligible for surrender. Thus it cannot be said to be a "default" by the requesting country. Further, although it is not accepted that the Magistrate "roved" through the material, there is no prohibition on him doing so. The bundle is bound as part of the authentication process as occurs in such matters (and the original will be before the court at the hearing). The requesting country must tender the authenticated bundle (as occurred here: Ex 2, T30 10/5/04). The question for the Magistrate and for this court on review is not "does each document in the bundle answer the description in S.19(2) and (3)", but rather "does the bundle contain the documents required by S.19(2) & (3) of the Treaty". As the Magistrate was satisfied, and entitled to be satisfied, that pp 8 - 14 of the Feldman affidavit and the indictment together constituted a statement of conduct, paras 30 - 33 of the Applicant's submissions, dealing with the content of Hillhouse's affidavit so far as it relates to a statement of conduct, need not be addressed.' (original emphasis) (iii) Conclusion 37 It seems to me that, on this issue, I should accept the respondents' submissions. I recognise the significance of s 19(3)(c)(ii) of the Act, in relation both to the statutory scheme and the implementation of the treaty between Australia and the United States. For the reasons expressed by counsel for the applicant, it is of cardinal importance that there be placed before the magistrate something that the magistrate is able to recognise as a 'duly authenticated statement in writing setting out the conduct constituting the offence'. In order to reach a conclusion that the person is eligible for surrender in relation to an extradition offence, the magistrate must be satisfied that such a statement has been produced to him or her. No doubt the most convenient situation would be if the statement was constituted by an appropriately titled single document. However, there is no statutory requirement to that effect. The authorities establish that the statement need not be confined to a single document. As Kenny J said in McDade, the 'critical factor is that, collectively, the documents constitute a duly authenticated statement in writing of the relevant acts and omissions'. 38 When I apply this test to the documents identified by the magistrate in the present case, I am in no doubt that the magistrate did not err in finding s 19(3)(c)(ii) had been satisfied. The indictment set out the essential elements of each offence. The material in Ms Feldman's affidavit that was identified by the magistrate set out the factual allegations of the United States in relation to each of the six charges. It does not matter that Ms Feldman chose to base her summary of facts upon the affidavit of Ms Hillhouse. That she chose to do this, by way of sourcing her information, does not mean that the contents of Ms Hillhouse's affidavit constituted part of the 'duly authenticated statement in writing setting out the conduct constituting the offence'. 39 Nor does it matter that the affidavit of Ms Hillhouse, and much other material, was unnecessarily tendered to the magistrate. The magistrate was correct to extract from that large volume of material a document or documents which he could identify as the required statement in writing. 40 Counsel for the applicant did not argue that, considered as a whole, the material identified by the magistrate failed to meet the test stated by Kenny J. Such a submission would not have been tenable. 41 The applicant's concern about the operation of the speciality assurance is understandable. However, contrary to a submission made orally by Mr Williams, if extradition took place, it would not be open to the United States to pick through the mass of material placed before the magistrate in order to see whether it indicated the commission of an offence other than those in relation to which the magistrate ruled that the applicant was eligible for surrender, and then to indict him for such an offence. Section 22(4)(d)(i) of the Act clearly relates the giving of a speciality assurance to the relevant 'surrender offence'. That term is defined by s 5 of the Act by reference to the offence or offences in relation to which the Attorney-General has determined under s 22(2) of the Act that the applicant is to be surrendered. Section 22(1) of the Act ties that determination back to the qualifying extradition offence or offences found by the magistrate. In the present case, the magistrate specified the six qualifying extradition offences, being the six offences specified in the indictment presented to him. Only those six offences constitute a 'surrender offence' for the purposes of s 22(4)(d)(i) of the Act. The retention of property issue (i) Respondents' submissions 42 Section 13(1) of the Act empowers a police officer who arrests a person under a provisional arrest warrant, issued under s 12 of the Act, to seize property that is in the vicinity, and under the apparent control, of the arrested person. However, this power exists only where the police officer 'has reasonable grounds for suspecting' that the property: '(i) may be material as evidence in proving any offence in relation to which the warrant was issued or for which surrender of the person is sought by the extradition country concerned; or (ii) has been acquired by the person as a result of such an offence.' 43 It is difficult to see how items of property in the luggage checked in by the applicant, for transport in the hold of the aircraft, can properly be described as having been 'in the vicinity', or 'under the apparent control', of the applicant at the time of his arrest. However, it is not necessary to determine those issues. Plainly, none of the seized material has any connection with the alleged taxation offences in respect of which the United States seeks the applicant's extradition. 44 Section 14 of the Act provides a procedure for the issue of warrants authorising the seizure of material connected with an extradition offence. No warrant was issued in this case. 45 It follows that there is nothing in the Act that authorised the AFP to seize and retain the items of property taken from the applicant's luggage. Mr Hastings does not contend otherwise. However, he argued, the relevant property 'was in a false name and was lawfully seized as evidence of an offence against s527C of the Crimes Act (NSW) 1900 with which the applicant was charged'. Mr Hastings submitted that '[w]hen executing a warrant police have a common law power to seize goods which show the suspect to be implicated in some other crime than that under investigation'. He quoted a statement by Lord Denning MR in Ghani v Jones [1970] 1 QB 693 ('Ghani') at 706: 'I would start by considering the law where police officers enter a man's house by virtue of a warrant, or arrest a man lawfully, with or without a warrant, for a serious offence. I take it to be settled law, without citing cases, that the officers are entitled to take any goods which they find in his possession or in his house which they reasonably believe to be material evidence in relation to the crime for which he is arrested or for which they enter. If in the course of their search they come upon any other goods which show him to be implicated in some other crime, they may take them provided they act reasonably and detain them no longer than is necessary.' 46 Mr Hastings cited Australian cases in which, he said, this statement had been followed. 47 Mr Hastings also argued that this Court should deny relief in relation to the seized property by reference to the principle that the law 'will not lend its processes for criminal, illegal or immoral purposes'. Counsel said: 'Whilst the charges against the applicant have now been discontinued, to return the goods to him would cause him to commit an offence of possession of goods reasonably suspected of being unlawfully obtained.' He cited Gollan v Nugent (1988) 166 CLR 18 ('Gollan'). 48 Mr Hastings argued that, in this case, 'the mere possession of the property would involve the applicant committing an offence and the officer delivering the property to him would be aiding and abetting that offence'. (ii) Conclusion 49 The first thing that should be said about Mr Hastings' arguments is that they can have no possible application to most of the items of property that were seized by AFP officers on 12 November 2003 and retained by them for many months. As I have said, the vast majority of the seized items were articles of clothing or items of personal property. The items of personal property included a camera, electronic equipment, a box of vitamin tablets, stationery and the like. On what possible basis did the AFP officers think they were justified in seizing these items, without a warrant, and withholding them from the applicant? No justification of this conduct has been advanced in this Court. 50 As I have indicated, by the date of the hearing, 16 items were retained by AFP officers, most of them being documents bearing the name 'John L Tottenham' or 'J L Tottenham'. Mr Hastings' primary argument might have applied to those items, but this would be so only if it was lawful for the AFP officers to have seized the items in the first place, and then only to the extent that the items constituted evidence of offences against s 527C of the Crimes Act and pending determination of charges for such offences. Mr Hastings' argument encounters difficulties in relation to all three conditions. 51 First, the statement of Lord Denning in Ghani must be read in its context. That was a case in which police officers, who were inquiring into a woman's disappearance, searched the house of her parents in law, where she had previously resided. They had no search warrant. At the request of the police, the parents in law handed to the police certain documents, including their passports. No charges were laid. The parents in law subsequently asked the police to return the documents. They needed the passports to visit their native Pakistan. The police refused. Talbot J ordered the return of the documents. The Court of Appeal dismissed the police officers' appeal. 52 In a passage immediately before that relied on by Mr Hastings, at 705-706, Lord Denning posed the issue in the case: 'So we have a case where the police officers, in investigating a murder, have seized property without a warrant and without making an arrest and have retained it without the consent of the party from whom they took it. Their justification is that they believe it to be of "evidential value" on a prosecution for murder. Is this a sufficient justification in law?' 53 After referring to numerous authorities, at 708-709 his Lordship said: 'What is the principle underlying these instances? We have to consider, on the one hand, the freedom of the individual. His privacy and his possessions are not to be invaded except for the most compelling reasons. On the other hand, we have to consider the interest of society at large in finding out wrongdoers and repressing crime. Honest citizens should help the police and not hinder them in their efforts to track down criminals. Balancing these interests, I should have thought that, in order to justify the taking of an article, when no man has been arrested or charged, these requisites must be satisfied: First: The police officers must have reasonable grounds for believing that a serious offence has been committed - so serious that it is of the first importance that the offenders should be caught and brought to justice. Second: The police officers must have reasonable grounds for believing that the article in question is either the fruit of the crime (as in the case of stolen goods) or is the instrument by which the crime was committed (as in the case of the axe used by the murderer) or is material evidence to prove the commission of the crime (as in the case of the car used by a bank raider or the saucer used by a train robber). Third: The police officers must have reasonable grounds to believe that the person in possession of it has himself committed the crime, or is implicated in it, or is accessory to it, or at any rate his refusal must be quite unreasonable. Fourth: The police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete their investigations or preserve it for evidence. If a copy will suffice, it should be made and the original returned. As soon as the case is over, or it is decided not to go on with it, the article should be returned. Finally: The lawfulness of the conduct of the police must be judged at the time, and not by what happens afterwards.' 54 Lord Denning held that, tested by these criteria, the police officers were not entitled to retain the documents. Edmund Davies LJ and Willmer J agreed. The Court made a mandatory order for return of the documents. 55 One of the mysteries about the present case is why the AFP officers searched the applicant's luggage. I can understand that they may have been obliged or felt it appropriate, if they were removing the applicant from the aircraft and taking him into custody, to retrieve his luggage from Air New Zealand. No doubt there are security procedures that must be followed by the gaol authorities which might justify the gaol authorities going through the luggage of an arriving inmate. But what was the entitlement of the police officers to search through the applicant's luggage without a warrant? If they had thought the luggage might contain documents relating to his 1991-1995 alleged United States tax offences, an unlikely scenario, their proper course would have been to seek a warrant under s 14 of the Act; not to ransack his luggage and retain whatever they wished. It seems to me evident that Lord Denning's first criterion was not satisfied; the police had no reasonable grounds for believing that a serious offence had been committed in Australia when they decided to search the applicant's luggage without a warrant. 56 Second, there were only ever local charges in respect of four documents: the Tottenham passport and the Tottenham credit cards. If these charges had proceeded to hearing, the prosecutor would have needed to tender the four documents to the Court. Assuming lawful seizure in the first place, their retention for that purpose would have been covered by Lord Denning's second criterion. But the other 12 articles would have been irrelevant to the prosecution and inadmissible in evidence. Why were they retained? 57 Third, as Lord Denning noted in his fourth criterion, retention for evidentiary purposes may be justified only pending disposition of the prosecution. Once the DPP decided to abandon the credit card charges, the Tottenham credit cards should have been returned to the applicant. Similarly, when the passport charge was dismissed on 12 May 2004, the Tottenham passport should have immediately been returned. 58 There is nothing in Lord Denning's judgment that authorises continued AFP retention of any of the seized items of property. 59 I turn to the argument based on Gollan. That case concerned articles seized by police under a warrant. In answer to an action for recovery of the articles, the police filed a defence in which they alleged that the articles, if returned, would be used in the commission of an offence under the Indecent Articles and Classified Publications Act 1975 (NSW) or in relation to a conspiracy to corrupt public morals. A judge struck out the defence and the New South Wales Court of Appeal affirmed the decision. The High Court, by majority, dismissed a further appeal. 60 In a joint judgment, at 44, the majority (Deane, Dawson, Toohey and Gaudron JJ) described as 'axiomatic' the statement 'that the law will not lend its processes for criminal, illegal or immoral purposes'. The question was 'how far a court will regard itself as being used for any of these purposes'. At 45, their Honours said: 'Upon the basis that the plaintiffs are entitled as owners to demand that the second defendant deliver up possession of the articles to them, the mere fact that the second defendant believed that they intended to use the articles to commit an offence or offences would not be sufficient to justify his withholding possession. Handing back the articles in those circumstances would not amount to participation on the part of the second defendant in any subsequent offences. No doubt if he were to do more than to hand back the articles and were to engage in other conduct amounting to aiding and abetting or counselling or procuring he would be guilty of participation ... But merely to yield to the plaintiffs the possession to which they were entitled would not amount to criminal conduct. This is not to deny those powers which a citizen has, be he a policeman or not, to prevent the commission of a crime or a breach of the peace. Rights arising from ownership would not prevail against those powers but they only come into being when there is an immediate threat of a physical kind which is lacking in this case.' (footnotes omitted) 61 At 46, their Honours observed that this statement did not dispose of the matter 'for the principle that the court will not assist illegal or immoral conduct is of wider ambit'. However, they said: 'As a general proposition, a plaintiff will not be denied relief unless he has to rely upon an unlawful or immoral transaction to establish his cause of action.' 62 The majority summarised their opinion at 48: 'What is alleged is an existing intention on the part of the plaintiffs to use the articles, if returned, to commit offences. It is said that such an allegation, if established, would constitute a defence to the plaintiffs' claim. We are unable to see that it does. The law does not penalize intention. On the contrary, it recognizes a locus poenitentiae and assumes that the opportunity for repentance may be exercised. The extent to which the law will refuse its remedies upon the basis of illegality or immorality is confined even where the illegality or immorality exists in fact, let alone where it exists only in the mind.' 63 Mr Hastings argued that, in the present case, the delivery of the withheld articles to the applicant would result, without more, in the applicant committing offences of having goods in custody that might reasonably be suspected of being stolen or otherwise unlawfully obtained. This argument obviously cannot apply to all 16 withheld items. Even in relation to the Tottenham passport and the Tottenham credit cards, it assumes a case that the DPP has hitherto been unable or unwilling to make. Furthermore, even if the assumption is correct, the last sentence of the last-quoted passage makes it clear that the assumption would provide no answer to the applicant's claim for return of the Tottenham passport and the Tottenham credit cards. Whatever problem of illegality that might then arise, this is not a case in which the applicant has to rely upon an unlawful or immoral transaction in order to establish his entitlement to possession of the seized goods. 64 I propose to accede to the applicant's claim for relief in relation to the seized items of property.