O'Donoghue v Ireland

Consideration 58 In the context of this particular review application, while the applicant raises two issues - the first concerning the adequacy of the statements relied upon by Ireland to set out "the conduct constituting the offence" for the purposes of s 19(2)(a) of the Act, and the second concerning the "dual criminality" issue, that is, whether that conduct or equivalent conduct would have constituted an extradition offence in relation to Western Australia for the purposes of s 19(2)(c) of the Act - there is in practical terms only a single issue, and that is whether the documents put before the magistrate establish that the alleged conduct of the applicant, or equivalent conduct would have constituted an extradition offence in Western Australia. If it would have then, in the circumstances of this case, there will also have been a sufficient statement in the documents setting out the conduct constituting the offence. 59 As noted above, s 19(3)(c)(ii) provides a definition of "supporting documents" that includes "a duly authenticated statement in writing setting out the conduct constituting the offence". 60 Section 10(2) of the Act, an interpretive provision relating to offences, provides that: (2) A reference in this Act to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed. 61 In Truong v The Queen [2004] HCA 10; 223 CLR 122 at [29], Gleeson CJ, McHugh and Heydon JJ stated: The acts or omissions, that is, the conduct, by virtue of which an offence has been, or is alleged to have been, committed, lie at a level of abstraction between a formal statement of the elements of the offence, on the one hand, and an account of the evidence relied on to prove the relevant conduct, on the other. 62 In relation to what is required in an extradition hearing under s 19, Gleeson CJ noted in Vasiljkovic v Commonwealth [2006] HCA 40; 227 CLR 614 at [23] that such a hearing "does not involve a trial on the merits, and the enquiry is as to whether there is, in effect, a case to be answered". 63 In Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 294, the Full Court confirmed that the phrase "the acts or omissions" refers to the elements or ingredients of the offence, not particular evidence adduced to prove those acts or omissions: see also Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 502 - 503. 64 It is well understood that it is not part of the magistrate's function (or this Court's on review) to determine whether an offence was committed in the requesting country: Zoeller 23 FCR 282 at 300, 303 (The Full Court); McDade v The United Kingdom [1999] FCA 1868 at [14] - [16]. In effect, that there is a foreign offence, is, for the purposes of s 19 proceedings, proved by the warrant or warrants duly authenticated; and that the offence is an extraditable offence in the requesting country is proved by the document required by s 19(3)(c)(i) - that is a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence. 65 All this accords with that principal object of the Act set out in s 3(a) namely: to codify the law relating to the extradition of persons from Australia to extradition countries and New Zealand and, in particular, to provide for proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited, without determining the guilt or innocence of the person of an offence; 66 Consequently in Zoeller 23 FCR 282 at 300 the Full Court stated: All the magistrate is required to do is, by reference to Australian law, to determine whether the conduct referred to in the s 19(3)(c)(ii) statement is an offence under the law of a State … 67 Ultimately, the supporting documents here must be such as to permit the Court to be satisfied that the conduct said to constitute the offence in the requesting country, or the equivalent conduct, would have constituted an extradition offence had it taken place in Western Australia: see McDade FCA 1868 at [16]; DeBruyn v Republic of South Africa (1999) 96 FCR 290 at [7]; Zoeller 23 FCR 282 at 299 - 300. 68 It is well accepted that strict compliance with the formalities required by the Act is essential: Cabal v United Mexican States (No 3) (2000) 186 ALR 188, French J at 240; and authorities there referred to. 69 Nonetheless, it is also accepted that in the conduct of a hearing "practical judgments and assessments are called for" by a magistrate, and this Court on a re‑hearing. 70 In Wiest 23 FCR 472 at 519, Gummow J (with whom Sheppard and Burchett JJ generally agreed) stated: An inquiry as to whether a proffered statement meets the description of requirement (c) presents a matter for practical judgment and assessment, not for overzealousness in discerning deficiencies. This approach was also adopted by the Full Court in Zoeller 23 FCR 282 at 294. 71 To some extent there is a tension between the "strict compliance" and the "practical judgments" approaches, although on closer analysis each approach has a different focus. In Cabal 186 ALR 188 at 241, French J at [133] observed: Again, there is a tension between the need to ensure that the individual's liberty is not to be affected except by statutory authority and in accordance with its terms and conditions and the need to avoid permitting the legislation to become a minefield of technicalities which defeat its purpose. 72 At [134], French J further observed: The court, giving effect to the terms of the Act and the treaty, and proper respect to the liberty of the individual, will look to questions of substance rather than form … Such criteria may be seen as involving value judgments. No doubt they do. The ultimate principle governing the court's approach remains - the requested person must go free unless it can be shown, in accordance with the requirements of the Extradition Act properly construed, that the person is eligible for surrender. The same values inform that approach as inform an approach described by the use of such terms as 'strict construction'. 73 One can see the good sense of these statements of the approach to be taken in an extradition hearing for the purposes of s 19, because one can expect the supporting documents to contain statements that, as indicated in the joint judgment in Truong 223 CLR 122, contain a mixture of formal statements of the elements of offences on the one hand and accounts of the evidence to be relied upon to prove the relevant conduct on the other, as indeed is the case here. 74 As Weinberg J also observed in Timar v Republic of Hungary [1999] FCA 1518 at [63]: documents emanating from countries with which Australia has extradition arrangements will often be drafted in language and style which is very different from our own, and perhaps less than perfect from our perspective. But as His Honour went on to say at [63] "Such documents must, in my opinion, be read fairly, and not perversely". At [64], His Honour added: It is not the case that every conceivable doubt or possible ambiguity of fact or law, no matter how inconsequential, must be resolved against the country seeking extradition. 75 For similar reasons no doubt, it is recognised that the material put forward in supporting statements may also go beyond what is necessary, without contravening the Act's requirements: see Zoeller 23 FCR 282 at 299 - 300; McDade at [20]. 76 The decision of the Full Court in Kainhofer v Director of Public Prosecutions (1996)(No 2)70 FCR 184 at 190 - 191 refers to what was said in Weist 73 FCR 472 and Zoeller 23 FCR 282 and confirms that inferences may be properly drawn from the materials produced. In Kainhofer 70 FCR 184 it was charged that the items in question were "obviously" subject to a reservation of title. The Court at 191 said it could be inferred from the reference to obviousness that Ms Kainhofer also had knowledge that the items in question were subject to a reservation of title, that is to say she had knowledge that the statement which she admitted was false, was knowingly false. 77 In Kainhofer 70 FCR 184 at 191 - 192 the Court was also satisfied that, while it was an essential ingredient of the offence of obtaining goods for credit by false pretences or wilfully false promise under s 427(1) of the Criminal Code (Qld) that there be an intent to defraud, that intent could be found in the use of the words "pretending to be solvent" and directly in the words "intending to defraud" in the statement. 78 In Zoeller 23 FCR 282 at 302, the Court observed that, while it was true that the statement of facts in question contained no direct description of the appellant's state of mind in terms of that required by the statement of the Australian offences, the facts stated made it clear that the appellant knowingly entered into agreements that were backdated and that he did so to enable him to claim tax deductions. The Court said that these facts sufficiently stated the guilty mind of the appellant without the necessity to do so explicitly. 79 In relation to the issue of dual criminality, the parties to this proceeding accept that the relevant local provisions to consider are s 378 and s 371 of the Criminal Code (WA) dealing with stealing and s 409 dealing with intent to defraud by deceit or any fraudulent means (false pretences). 80 Section 378 of the Criminal Code (WA) provides: Any person who steals anything capable of being stolen is guilty of a crime, and is liable, if no other punishment is provided, to imprisonment for 7 years. 81 Section 371 relevantly provides that: (1) A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person any property, is said to steal that thing or that property. (2) A person who takes anything capable of being stolen or converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say - (a) An intent to permanently deprive the owner of the thing or property of it or any part of it; (b) An intent to permanently deprive any person who has any special property in the thing or property of such special property; … (f) In the case of money, an intent to use it at the will of the person who takes or converts it although he may intend to afterwards repay the amount to the owner. 82 Section 409(1) of the Criminal Code provides that: Any person who, with intent to defraud, by deceit or any fraudulent means - (a) obtains property from any person; (b) induces any person to deliver property to another person; (c) gains a benefit, pecuniary or otherwise, for any person; (d) causes a detriment, pecuniary or otherwise, to any person; (e) induces any person to do any act that the person is lawfully entitled to abstain from doing; or (f) induces any person to abstain from doing any act that the person is lawfully entitled to do, is guilty of a crime and is liable - … (h) in any other case, to imprisonment for 7 years. 83 Section 409(3) provides: It is immaterial that the accused person intended to give value for the property obtained or delivered, or the benefit gained, or the detriment caused. 84 In this case, seven out of the eight counts of fraudulent conversion and seven out of the eight counts of the alternative charge of obtaining property by false pretences, both contrary to the Larceny Act 1916 (Ireland), relate to dealings concerning a Mr Redmond. The remaining count of fraudulent conversion with the alternative charge of obtaining property by false pretences, concerns a Mr Henderson. 85 The submissions made on behalf of the applicant and set out in some detail above, highlight the fact that the supporting documents, particularly the "Allegations: Overview" section and more detailed account of circumstances in which the offences are alleged to have been committed, so lack factual detail and contain ambiguities that they fail to set out relevant elements or ingredients of the Western Australian offences of stealing or false pretences. 86 For example, it is said the supporting documents are ambiguous as to whether Property World was the applicant's business or that of a corporate entity. 87 Further, that a question is raised whether instructions had been given by Mr Redmond and Mr Henderson that the cheques they provided to Property World, whether to an employee of the applicant or the applicant himself, were to be used for particular purposes and/or to be placed in a trust account pending the carrying out of a particular transaction. 88 It is also said they raise the question of the basis upon which it is said the applicant took responsibility for the earlier conduct of his employees who had received cheques on behalf of the applicant's business. 89 Indeed, counsel for the applicant contended in relation to warrants A/I that all that was put against the applicant was that "one of his employees obtained a cheque from someone and somehow, we don't know how, it came into his hands and he cashed it". 90 The applicant also contends the documents do not address the question and so, in effect, negative the possibility that the applicant mixed the funds he allegedly obtained from cashing the cheques with his business monies such that he could not be guilty of stealing them under Western Australian law. That is to say, there is nothing to suggest the ratio in Parker 186 CLR 494 does not apply here. 91 However, in my view, when one reads fairly the whole of the supporting documents, including the warrants, the detailed statement of facts and circumstances relating to the warrants and the conduct complained of, and the Allegations: Overview section, the material elements or ingredients of the offences stand out plainly, without ambiguity, and the mixing issue simply does not arise. 92 For example, a fair reading of the supporting documents discloses that it is alleged that the applicant was personally the owner and operator of a business called Property World, and there is no question of some corporate entity owning or operating that business. 93 It is also plain that, leaving aside the one cheque that was used to pay some advertising expenses of the Property World business, the blunt allegation is that the applicant personally cashed the cheques of Mr Redmond and Mr Henderson and applied the monies received to his own personal use, not that of the business of Property World. 94 In such circumstances, the applicant's contentions that a Western Australian offence of stealing could not be made out because there has been a "mixing" of funds in an account, which account is then used for a mixture of business and personal transactions, is not open on the allegations made. The allegation does not permit a "mixing" defence. 95 It is also plainly alleged in the case of the applicant's dealings with Mr Redmond that there was a course of conduct or a series of transactions involving Mr Redmond whereby he was induced to provide cheques to Property World, to the knowledge of the applicant, which cheques were not applied to the intended purpose of securing investment properties, but were in fact applied to the personal use of the applicant (or, in the case of the cheque used to pay the newspaper's advertising account, for an unrelated purpose). 96 It is also clearly alleged that all of these transactions were not genuine. In this regard the supporting documents unambiguously allege - and the Court is not required to draw inferences in this regard - that the applicant knew or was aware at material times that: • a particular property transaction proposed to Mr Redmond or Mr Henderson was not genuine; • the applicant was obtaining or had obtained each cheque by falsely pretending certain matters; • inducements to Mr Redmond or Mr Henderson in each case were made by the applicant directly or on his behalf with his awareness and knowledge; • the applicant obtained the relevant cheque and presented it at a bank personally and converted the same to cash (for all warrants except E and M, of where the cheque involved was used to pay an advertising debt of the business); • the proceeds were used for the applicant's own purposes (for all of the warrants except E and M where it was used to pay a newspaper's advertising account). 97 It is open to consider that the cheques themselves were material things that were capable of being stolen and were in fact stolen by conversion. 98 In any event, the conversion of the cheques into cash as alleged which cash was applied to the applicant's own uses would satisfy the conduct referred to in s 371(1) and s 371(2) of the Criminal Code (WA) and thereby constitute stealing. 99 Further, to obtain that property - the cheques - from Mr Redmond and Mr Henderson fraudulently, with intent to defraud, would constitute an offence under s 409(1) of the Criminal Code (WA). The allegations made support this as an equivalent offence in Western Australia. It is alleged that the applicant knowing that none of the particular property transactions was genuine, not intending to apply the cheques received towards that end, acquired the cheques and applied them to his own personal use. The elements or ingredients of the offences are bluntly stated and the question of the intent of the applicant is also unambiguously alleged. 100 While some criticism may be made of the use of the expression "accepted business practice" in the Allegations: Overview section - because it may be said to raise more questions than answers, in the sense that it is not clear whether it is alleged that the applicant and Mr Redmond, and the applicant and Mr Henderson had some common understanding about this practice - that statement may be considered mere surplusage in the circumstances. Without it the remaining material still satisfies the requirements of s 19(2)(c) of the Act and indicates an equivalent offence in Western Australia of stealing or false pretences. 101 No doubt the supporting documents could have addressed in more detail, and more methodically, the acts or omissions, and elements or ingredients of the alleged offences of fraudulent conversion and false pretences relied upon than they do. Nonetheless, when one analyses the supporting documents without an overly critical eye, the following elements or ingredients clearly emerge: 1. The applicant owned and operated a business called Property World. 2. A series of property transactions were proposed to Mr Redmond and Mr Henderson respectively that were not genuine to the knowledge of the applicant. 3. There were a series of transactions which culminated in the applicant receiving a relevant cheque and converting it to his own personal use (or unrelated business use in one case). 4. Employees of the business were acting on behalf of the applicant in the series of transactions which the applicant knew were not genuine. 102 To satisfy the requirements of the Act it is not necessary for detailed factual evidence, for example concerning the conversations alleged to have occurred between the employees of the applicant and Mr Redmond and Mr Henderson, to be set out. Similarly there is no need here for advertisements and brochures referred to be produced in order to establish the elements or ingredients of the offences alleged. 103 In conclusion, in relation to the dual criminality issue, I find that if the conduct of the applicant constituting each offence alleged in relation to Ireland, or equivalent conduct, had taken place in Western Australia, that conduct or that equivalent conduct would have constituted an extradition offence in relation to Western Australia, being either the offence of stealing, contrary to s 378 of the Criminal Code (WA), or intent to defraud (false pretences), contrary to s 409(1) of the Criminal Code (WA). 104 It follows, in my view, and I find that the documents provided in support of the extradition request, that were relied upon by the magistrate and in this Court on this review application, also constitute a duly authenticated statement in writing setting out the conduct constituting the offences for the purposes of s 19(2)(a) and s 19(3)(c)(ii) of the Act.

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