The Issue to be Decided
3 Section 19 of the Act relevantly provides that a person is only eligible for surrender in relation to an extradition offence if the supporting documents in relation to the offence have been produced to the magistrate - see s 19(2)(a). Section 19(3)(c) includes as one of the required supporting documents:
"(ii) a duly authenticated statement in writing setting out the conduct constituting the offence."
4 Section 10(2) provides that a reference to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed.
5 The only ground of review relied upon by the applicant is that the second respondent erred in ruling that a summary of evidence and allegations, produced to him at the proceedings referred to above, was a valid and sufficient statement for the purposes of s 19(3)(c)(ii) of the Act and that accordingly s 19(2)(a) had been complied with. That is the issue to be decided. The relevant document was identified in the proceedings before the second respondent as Exhibit 139. I shall, in these reasons, refer to it as "the Statement".
6 The only express requirement of a statement (so far as is relevant to this matter) in the Act is that it sets out the conduct constituting the offence. Before describing the Statement and then assessing whether it meets the requirements of the Act, I shall first refer to the purposes of such a statement, and to the form which it is required to take. In Linhart v Elms (1988) 81 ALR 557 at 575 Fox J, after considering the need for particularity in the relevant statement, said:
"The object of the particularity is partly so that the aspect of double criminality (in its muted form) can be considered adequately, and partly so that s 13, the speciality provision, becomes more patently applicable."
At 583 Gummow J said:
"It follows that for a statement to satisfy the description in sub-para (C), it must speak with sufficient specificity to enable the magistrate to be satisfied that the fugitive in question is liable to be surrendered: s 17(6)(b). This involves consideration of the sufficiency of the statement to enable proper consideration of the application to the particular case of s 4(1A) and (1B) and s 13 [these were references to the double criminality and speciality provisions of the 1966 Act]. Again an inquiry as to whether a statement satisfies the description within sub-sub-para (C) will be a matter for practical judgment and assessment, bearing in mind the prohibition in s 17(6A) upon the production of evidence by the fugitive to controvert the commission by the fugitive of the acts or omissions in respect to which the surrender is requested."
7 In addressing the form of the statement relied upon in Linhart, Gummow J made this observation at 583:
"They [the specifications of the offences] do not set out in the necessary sense "the act or omission" in respect of which the surrender of the appellants is sought. They are a bare summary of some of the elements involved. Plainly, these deficiencies are sought in each case to be remedied by what is to be drawn for each case from the general words of the introductory matter I have set out above. However, this serves only to compound the problem. The introductory matter contains within it various assertions, some of which are in themselves ambiguous and some of which are obscured alternatives to other assertions. In any given instance of charges C-X, it would require removal of the ambiguities in the general statement and a choice between alternatives before the reader would be able to put the jigsaw together and then ask what it is that "sets out" the act or omission in respect of which surrender is sought."
8 In Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 519, Gummow J (with whom Sheppard J agreed) said:
"The duly authenticated statement in writing setting out all the acts or omissions in respect of which surrender is requested, serves several purposes. It assists consideration of whether extradition is sought in respect of extradition crimes which satisfy the "double criminality requirements …". It also assists in determination of whether the "speciality" provisions … are met. Further, it may assist in deciding whether an offence of a political character is involved …".
9 In Todhunter v United States of America (1995) 57 FCR 70 at 90 (another decision of a Full Court of this Court), the Court observed:
"It is undoubtedly the case that the provision of a statement setting out the conduct constituting the offence, being the acts or omissions or both by virtue of which the offence has or is alleged to have been committed … is significant for the operation of s 19(2)(c)."
10 I note that the Act as substantially amended in 1988 is expressed in terms which, at first glance, might appear to be relevantly different. The Act at present requires a statement setting out "the conduct constituting the offence". Previously there was required a statement "setting out the act or omission in respect of which the surrender is sought". However, the provisions of s 10(2), which I have summarised above, result in there being no difference relevant to the present matter, between the former s 17(6)(a)(i)(C) and the current s 19(3)(c)(ii).
11 There is no suggestion that offences of a political character are involved in this matter. Accordingly the Statement needs to be assessed, in my opinion, to see whether it satisfies the purposes of identifying offences which satisfy the double criminality requirement and enables the speciality provision to operate properly. By that I mean, first, that it should be reasonably apparent from the Statement which acts are the acts upon which the first respondent relies as constituting the extradition offences for which the surrender of the applicant is sought, so that the second respondent (the Stipendiary Magistrate) can assess whether those acts would have constituted an offence in Western Australia. Secondly, it should also be reasonably apparent that if the first respondent were to seek to prosecute the applicant in England for an offence which was not the subject of the extradition request, the applicant could only be convicted on that fresh charge, on proof of the conduct which constituted the surrender offence or offences. Section 22(4)(d)(ii) which relevantly qualifies the speciality principle, does so in terms of any offence "… of which the eligible person could be convicted on proof of the conduct constituting any surrender offence".
12 There are other cases which provide guidance on the requirements of a statement. In Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 297, a Full Court of this Court referred to the form and content of the required statement and said:
"What is relevantly required is a statement of what is alleged to have been actually done or omitted, not a mere restatement of the charge in respect of which extradition is sought."
13 In Wiest at 483 Sheppard J stated:
"It seems to me that the Act provides for a simple and straightforward procedure. All it requires is a duly authenticated statement in writing setting out all the acts or omissions in respect of which the surrender of the person is requested. No doubt such statements may take a variety of forms, but with the assistance and advice which is apparently made available to countries seeking extradition of accused or convicted persons from Australia, I would have thought that it was not asking too much to expect a clear and unambiguous statement of the relevant acts and omissions, even if they be lifted (which it may well be appropriate to do in a given case) from another document such as the judgment here. Extradition is after all a serious affair and there should be no room for uncertainty or misunderstanding."
14 The applicant contends that the Statement is not valid, for several reasons. I shall deal with those contentions under four headings. But before doing so I shall describe, by way of summary, the contents of the Statement. I must stress that when I appear to be stating facts in this part of my reasons, I am only reciting or paraphrasing the allegations contained in the Statement. The Statement is a 19 page document, containing 126 numbered paragraphs, prepared by Detective Inspector David Cook of the Metropolitan Police Service in London. Det Insp Cook, in his affidavit, described the Statement as "… a report containing a summary of the investigation and allegations against Stephen Gerard McDade". A general idea of the contents of the Statement can be gleaned from the first four introductory paragraphs which read:
"1. This report deals with the criminal activities of Stephen Gerard McDADE and his wife Louise EDDERY, between the period 1989 and 1991, whilst Stephen McDADE was employed by the travel company Bladon Lines.
2. The crimes themselves although relatively simple, are complicated by the volume of offences, the time over which they were committed and the fact that aliases were used by both parties.
3. Although there is a considerable amount of evidence within this report to support the allegations, to make sense of what has happened it will be necessary to include some valid suppositions. When however this is done they will be clearly indicated.
4. Also to enable the reader of this report to have a full understanding of what this case is all about it (sic), this report has been subdivided into the following seven sections;
i. Background information on Stephen McDADE
ii. Resume of the full circumstances
iii. The offences committed, relevant evidence and witnesses."
15 There then follow four paragraphs of background information including the applicant's date of birth and some particulars of his employment. Next there is a section headed "Resume" comprising 24 paragraphs. That section refers to the applicant's two applications to emigrate from England to Australia. There is then a description of a method whereby the applicant is said to have obtained sufficient particulars to enable him to assume the identity of three named individuals in London. Those individuals were Christopher John Seaborn, Peter Taylor and Neil Proctor. The applicant is said to have placed an advertisement in the "Fulham Post" and "Chelsea News" newspapers of Thursday 16 March 1989 for a chauffeur's position with a salary of Ł15,000 per annum, plus accommodation. Prospective employees were asked to contact a Mr Nigel Cunningham at the Hilton Hotel in London on a given telephone number on Saturday 18 March 1989 between 12 noon and 5 pm. Each of Messrs Seaborn, Taylor and Proctor telephoned the given number and had a lengthy discussion about the job opportunity. They then, as requested, each sent a full curriculum vitae including national insurance numbers, bank account details, passport details, driving licence particulars and a current photograph. None of them heard anything further. About three weeks later Mr Seaborn went to the Hilton Hotel, but nobody knew anything about Mr Cunningham. Details are then provided in the Statement of how the applicant, using the name Christopher Seaborn, and a reference in that name, obtained employment as a residential caretaker with Bladon Lines at their building at 56-58 Putney High Street in Putney. The significance of the address appears below. Bladon Lines are, apparently, the largest ski tour operators in England having offices on three floors in that building with the caretaker's flat being on the top floor. The applicant's duties as residential caretaker included office security and the conduct of the mail room. He had access to the whole of the building at all hours. Bladon Lines provided the applicant with a reference so that he could open an account with Barclays Bank Ltd in Putney. The applicant started work on 3 July 1989. This part of the Statement concludes with a description of how the applicant and his then de facto wife (Ms Louise Eddery) departed, without notice, at some time between Monday 1 July 1991 and Tuesday 2 July 1991. Employees of Bladon Lines arrived at their offices on that Tuesday to find what appeared to have been a burglary with a number of computers, laser printers, a fax machine and a Pentax camera missing. (It subsequently transpired that there were many other items missing, to a value of approximately Ł23,000). They then found that the caretaker's flat was vacant, and that the personal possessions of the applicant and his family had been removed, as had virtually all the furnishings.
16 The next part of the Statement is headed "The Offences Committed". It is in narrative form and describes, initially, the fact that the applicant obtained employment using both false references and a false identity. This (paragraph 33 when read with earlier paragraphs) is clearly a reference to charge No 1. I pause here to note that the second respondent, at the eligibility hearing to which I have referred above, concluded that there was insufficient evidence of fraud so far as the obtaining of that employment was concerned, and determined that the applicant was not eligible for surrender in respect of that charge. He came to a similar conclusion in relation to the four conspiracy charges against the applicant and his wife. The first respondent has not sought review of those determinations.
17 The remainder of this part of the Statement comprises a detailed description, mainly in chronological order, of numerous transactions entered into by the applicant using the name Christopher Seaborn. They include obtaining a charge account with Marks & Spencer PLC and a personal loan account with that company. The unpaid balance of the charge card account with Marks & Spencer forms the basis of charge No. 7. The loan account was used to purchase some Ł5,000 worth of furniture in respect of which only one instalment of Ł257.16 was paid. That matter (obtaining the furniture) is not the subject of any charge. Then there is a description of the dealings of the applicant and Ms Eddery with the Woolwich Building Society in Putney, including the opening of accounts in the name of Christopher Seaborn and Louise Seaborn. The evidence is that Woolwich Building Society is owed in excess of Ł10,000 (charge No. 14). The narrative continues in like vein to describe transactions entered into by the applicant using the name Christopher Seaborn with numerous suppliers of goods and services. The descriptions are cross-referenced to statements from named employees of the various organisations involved. I think it is fair to say that in the last month before the applicant and Ms Eddery departed from London, there is a noticeable increase in the volume and frequency of the transactions which are described in the Statement.
18 After the applicant's departure, Bladon Lines found that ten blank cheques were missing. They informed their bankers of that fact on 10 July 1991. However, as set out in paragraph 89 of the Statement, by that date, four of the cheques had been presented beyond redemption to a total value of Ł16,140.62. The statements of four persons are incorporated by reference into that paragraph. One of those persons was Mr Paul James Cox an employee of Barclays Bank PLC. Mr Cox describes how on 21 June 1991 a man went into the Wandsworth branch of his employer and completed an application form to open a particular type of account in the name of Peter Taylor. It will be recalled that one of the respondents to the advertisement in the "Fulham Post" was a Mr Peter Taylor who sent all of his particulars to the advertiser who gave his name as Mr Nigel Cunningham. The cheque, payable to Peter Taylor, in the sum of Ł5,126.87, was one of the missing cheques drawn on Bladon Lines account. The cheque having been cleared, Ł5,000 was withdrawn on 1 July 1991, being the day before the applicant's disappearance. Mr Cox's further evidence is that on 24 June 1991 a man went into the Fulham Broadway branch of his employer and completed an application form to open an identical type of account in the name of Neil Charles Proctor. Mr Proctor, it will be recalled, was the third of the would-be chauffeurs earlier referred to. The cheque tendered to open the account at Fulham Broadway was another of the ten cheques which were stolen from Bladon Lines. It was made payable to N Proctor in the sum of Ł4,810.02. On 1 July 1991 (again) Ł4,700 was withdrawn from that account. Paragraph 89 of the Statement incorporates by reference a statement from Mr Proctor that he had no involvement with the opening of the bank account in his name and had never seen the cheque for Ł4,810.02 made payable to him. He gives evidence in relation to the issue of a duplicate licence in his name which was sent to 56 Putney High Street, Putney, (where Bladon Lines had its offices and flat). Mr Proctor says that this was not as a result of any application from him and that he did not give anyone permission to apply for a licence in his name. Mr Cox also describes how on 24 June 1991 a man went into the Barnes branch of his employer and applied to open an identical type of account in the name of Simon Bladon with a cheque for Ł5,203.93 made payable to "S. Bladon". This was another of the ten cheques stolen from Bladon Lines. Once again almost all of that amount was withdrawn on 1 July 1991.
19 The remainder of the Statement and the documents incorporated by reference into it include a narration of the following facts:
· departure of the applicant and Ms Eddery from the United Kingdom on 5 July to Canada and Fiji (where they were married on 12 July 1991) and their arrival in Sydney on 15 July 1991;
· the movement of their personal effects and property to various places in London and then from London to Australia, and their location at the home of the applicant and his wife in Carine in Western Australia;
· that the original passport applications made by the applicant and Ms Eddery were obtained from the United Kingdom passport authorities and the passport photographs were produced to employees of Bladon Lines who identified the applicant and Ms Eddery as persons known to them as Stephen Seaborn and his common law wife;
· that Det Insp Cook and Det Sgt Morrison travelled to Perth to conduct further enquiries and found about 90% of the property alleged to have been stolen, or dishonestly obtained by the applicant, at the applicant's home;
· the applicant's eventual admission to being Stephen McDade, having used the name Steven Seaborn and to having obtained all the property through credit, but that he denied criminality. From statements incorporated by reference it can be seen that the applicant initially denied being Stephen McDade and said that he was Michael McDade. (According to the Statement the applicant's brother Michael McDade pleaded guilty to dishonestly handling computers which were stolen from Bladon Lines and, on 4 July 1991 remitted sterling currency to the equivalent of $19,350 to the applicant's account at the Commonwealth Bank at Whitford, a suburb of Perth).
20 I now turn to the four bases upon which the applicant contends the Statement is invalid.
1. Whether the Statement is invalid because it includes facts or conduct which go beyond what is necessary to establish the offences, or which are irrelevant to the offences?
21 The applicant submitted that the Statement is invalid because it includes facts and conduct which go beyond those necessary to establish the offences, or are not relevant to the offences. The applicant contended that to hold otherwise would render the principle of double criminality and the principle of speciality of no practical effect. In summary, the principle of double criminality requires that an extradition offence be constituted by conduct that would amount to an offence in Australia, or the relevant part of Australia. The principle of speciality requires that a person surrendered to a requesting State not be tried for any offence, committed prior to surrender, other than that for which extradition was granted, unless the requesting State has first allowed the person adequate opportunity to leave that State again, or the Attorney-General consents.
22 Mr Aughterson, counsel for the applicant, submitted that unless a statement were so confined, a requesting State could "cook the books", in two ways. First, if under its law it was not necessary for a particular ingredient (such as intention, for example) to constitute part of the offence, but it was necessary under Australian law, then that ingredient could be inserted in the statement simply to satisfy the double criminality requirement. Secondly, if the requesting State were minded to prosecute for other and different charges upon the return of the person, they could "just throw in a few more facts as well to create some other offences not charged" to get around a speciality undertaking.
23 Authorities which bind me (and with which I respectfully agree), show that a statement does not have to be confined in the manner contended for by the applicant. In Zoeller the relevant statement was found in certain German warrants. The appellant contended that those warrants contained factual matters beyond that which would be absolutely necessary to establish each of the German offences. In rejecting that submission the Full Court said (at 299-300):
"But it does not follow from the adoption of this legislative scheme either that the warrants in the present case are invalid because they contain a statement of facts which goes beyond the facts necessarily constituting the offence in Germany or that the magistrate may have regard only to those facts which are absolutely necessary ingredients of the foreign crime. The magistrate is no expert in foreign law. He is not required to determine what the facts are that are the minimum facts necessary to constitute the foreign crime. That there has been a foreign crime committed is for the purpose of the proceedings before the magistrate proved by the warrant duly authenticated. What the facts relevant to that crime are is proved by the duly authenticated statement under s 19(3)(c)(ii). That the offence is an extraditable offence is proved by the s 19(3)(c)(i) document. All the magistrate is required to do is, by reference to Australian law, to determine whether the conduct referred to in the s 19(3)(c)(ii) statement is an offence under the law of a State or Territory of Australia or Commonwealth law."
24 Mr Aughterson made a formal submission that the Full Court in Zoeller stated the principle too broadly. He said that the Court had departed from earlier authority to the effect that the phrase "conduct constituting the offence" referred to conduct necessary to prove the foreign offence. As an example of such earlier authority, Mr Aughterson referred to Linhart v Elms at 582. He said that in Zoeller the Full Court had focussed on the word "alleged" in the definition of "conduct constituting the offence" in s 10(2). He submitted that the reference in that sub-section to the acts by which the offence "has or is alleged to have, been committed" was merely a reference to the fact that extradition may be sought of a person either charged with or convicted of an offence, and that the words were not intended to effect a departure from the approach adopted under earlier extradition legislation.
25 I think that there are two answers to that submission. First, although Gummow J in Linhart v Elms at p 582 refers to "the essential elements or integers of an offence", I do not think that his Honour was holding that the relevant statement had to be confined to conduct necessary to prove the foreign offence. In another Full Court decision, United States of America v Holt (1994) 49 FCR 501 at 504, the Court observed:
"But that does not mean that the magistrate may only have regard to these [presumably "those"] facts which are absolutely necessary ingredients of the foreign crime: Zoeller at 299-300. Moreover, it is sufficient if part only of the conduct alleged would constitute the notional Australian offence."
26 Secondly, the Full Court in Zoeller was well aware of the two types of extradition i.e. in respect of an offence against foreign law or in respect of which a person has been convicted overseas - see the sentence immediately before the sentence at 297 which Mr Aughterson submitted represented a departure from earlier authority, and which I have set out at paragraph 12 above.
27 There is other authority to the effect that the relevant statement does not have to be so confined. In Wiest, one of the appellant's complaints was that the statement relied upon by the respondent contained additional material from which it was necessary to identify and extract the acts or omissions relied upon. It is, in my view, clear from Gummow J's reasons at 519-520 that his Honour rejected that complaint, although he did not expressly say so. It can be seen from Gummow J's reasons that his Honour accepted that the warrant of arrest (the relevant statement in that matter) could be read with the certified translation of a judgment of the Local Court at Bonn, not all of which was relied upon. His Honour accepted that there was a sufficient statement, but added (at 520):
"However, it would have been a far preferable course if there had been set out, or attention otherwise plainly had been drawn to, the particular passages in the judgment upon which reliance was placed, so that it was clear that not all of the judgment was relied upon. I would seek to discourage in the future the method of presentation of materials adopted in this case."
28 From these authorities it would seem that a statement may include facts and conduct which go beyond what is necessary to establish the offences and which may be irrelevant to those offences. As Gummow J observed in the passage which I have set out at paragraph 6 above, whether a statement satisfies the statutory description is a matter for practical judgment and assessment. In a given case, it might well be that an overwhelming volume of unnecessary or irrelevant facts could result in such obscurity as to warrant an assessment that the statement did not "set out" the conduct constituting the offence, being the acts by virtue of which the offence is alleged to have been committed. Those acts might be too far buried beneath irrelevant material to meet the statutory requirement.
29 Mr Aughterson took me to various paragraphs in the Statement which he said contained allegations of acts potentially constituting criminal acts but which were not the subject of the present charges and allegations which were, on his submission, irrelevant to the present charges. I acknowledge that there are paragraphs which appear to fall within such descriptions. I say "appear" because it will be for an English court to decide whether the acts referred to are acts by virtue of which the offences have been committed. It may be that what appear to be background facts, amount to acts forming part of the fraud or deception. Many of the paragraphs identified by Mr Aughterson give background and other information which makes the Statement as a whole clearer than it would be without them. Rather than obscure the acts by virtue of which the offences are alleged to have been committed, I found that the allegedly superfluous paragraphs made the statement of those acts clearer, for example, by setting them in context.
30 In terms of double criminality, my assessment is that the second respondent would have been, if anything, assisted by the material complained of when carrying out his task of deciding whether, if the conduct had taken place in Australia, it would have constituted an offence. In relation to Mr Aughterson's "cooking the books" argument, I must acknowledge that there is room for possible abuse by a requesting State in the manner suggested, so as to establish dual criminality. The example given was the insertion in a statement of facts relevant to intent, where proof of intent was not required under the foreign law, but was required under the law of the relevant part of Australia. But there are many other ways in which the extradition system might be abused. Everything in the statement and other supporting documents might be concocted. The system depends substantially on trust - the speciality undertaking is an example of that. For a magistrate to detect the insertion of a spurious ingredient in a statement would require him either to have knowledge of the foreign law or be informed on that subject by expert evidence. The Full Court in Zoeller has made it clear that that is not required of the magistrate.
31 So far as the speciality principle is concerned, in this case the focus will be on English law. The United Kingdom will only be able to prosecute the applicant for offences, other than the 18 surrender offences, in respect of which he could be convicted on proof of the conduct constituting any of those surrender offences. In argument, counsel for the applicant suggested that the application of the speciality principle would be difficult to the extent of being impossible because of the irrelevant material said to be contained in the Statement. Several times it was submitted that a prosecutor would be able to point simply to the fact that criminal behaviour had been described in the Statement as enabling a further prosecution to be brought. It would be too difficult, so it was put, to separate the relevant from the irrelevant. I disagree. First, as I have mentioned, the task will be an English task, i.e. the application of English law in England to sort out which acts are or were required to be proved so as to constitute the 18 surrender offences according to English law. The prosecutor will only be able to rely on those facts in relation to the proposed fresh charge, unless the speciality undertaking is to be broken. An assumption or fear of deceitful abuse by the requesting State is not, in my view, a proper basis for the Statement to be declared invalid.
32 In my view, the Statement was not rendered invalid by inclusion of facts or conduct which may have gone beyond what was necessary to establish the offences or which were irrelevant to the offences. Section 19(3)(c)(ii) does not so confine such a statement.