Engagement of extradition offences
81 As I indicated earlier, the Treaty is extensively reproduced at [46] in the judgment of the primary judge below, but I have set out in [38] above sufficient for consideration of the issue as to whether by the terms of the Request, there was engaged any of the offences nominated in the Treaty. As appears in [39] above, the legal representatives of the Appellant placed before the Respondents the Joint Memorandum of Advice of Australian Counsel to the effect that none of such charges engaged the offences the subject of the Treaty. Upon the true construction of the Treaty, the same provides for reciprocal extradition only in respect of the nominated crimes or offences punishable in accordance with the laws of both High Contracting Parties, Australia and Poland. The Appellant contends that the Request does not purport to apply in terms to a crime or offence listed in Article 3 of the Treaty, once consideration is given to the legal elements of the offences set out in the Request. In that regard, as the Appellant has rightly submitted, the Treaty adopts an enumerative method of listing offences, rather than an eliminative method apparently favoured in the extradition treaty practices of more recent times, such as (so I have been informed by Counsel for the Appellant), to be found in the new Treaty between Australia and the Republic of Poland on Extradition made in Canberra on 3 June 1998, which came into force on 2 December 1999. As the Appellant has further submitted, the primary judge misconceived the operation of the Treaty in observing that offences "will change from time to time", because under the subject Treaty, the offences are purportedly fixed by their description, in the absence of subsequent amendment to, or replacement of, the Treaty.
82 The Appellant submitted that none of the offences with which the Appellant has been charged, and which are set out in the Request, falls within the elements of a crime or offence listed in Article 3 of the Treaty, for the reasons set out in written submissions, which may be conveniently reproduced below:
"(a) The first charge, conspiracy to defraud by fraudulent means contrary to section 412 of the Criminal Code (Western Australia) has no equivalent in Article 3 of the Treaty. Conspiracy is a distinct crime involving an agreement. The Treaty distinguishes between substantive offences and the inchoate offence of conspiracy (for example, Article 3.1 lists "murder" and "conspiracy to murder". Article 3.28 "revolt" and "conspiracy to revolt"). Article 3 does not include "conspiracy to defraud".
(b) Similarly, the offence of failing to act honestly in section 229(1)(b) of the Companies (Western Australia) Code is not the offence of "fraud by director" in Article 3.29 of the Treaty. The offence against section 229(1) is a general offence of failing to act in the best interests of the company. Where that offence is committed with the additional element of intent to defraud contained in section 229(1)(b), the maximum sentence is increased, but this is only as a circumstance of aggravation affecting penalty.
(c) The offence of making improper use of the position of an officer of the corporation in order to gain an advantage for himself or herself or another person in section 229(4) of the Companies (Western Australia) Code can be committed even though the person does not know that he or she is using the position improperly. Accordingly, an offence against section 229(4) is not the same as "fraud by a director" in Article 3.19 of the Treaty."
The foregoing submissions effectively adopt the reasoning of the Joint Memorandum of Advice of Counsel dated 23 December 1996 identified in [39] above. The Counsel were Mr J J Spiegleman of Queens Counsel, now the Chief Justice of the State of New South Wales, and Mr N J Williams, now senior counsel in and for that State. The Joint Memorandum set out the extensive experience of the authors in a number of prominent extradition cases in Australia, and referred to Mr Williams' co-authorship of the Butterworths publication Williams, Payne and McNaughton, Federal Criminal Law, a four volume loose leaf service which contains commentary on the 1988 Act and on company law offences. It is instructive to consider some of the detail of the reasoning of the authors of the Joint Memorandum of Advice, which as I have already said, has been summarised immediately above and adopted by Counsel for Mr Oates in the proceedings now before this Full Court.
83 As to the offence of conspiracy to defraud by fraudulent means in contravention of s 412 of the Criminal Code of Western Australia, whereof as indicated in the Request extracted in [37] above there is only a single count pleaded, the Joint Memorandum pointed out that the terminology of offences in Article 3 of the Treaty is derived from the British Extradition Act 1870 (to which I have been referring as the 1870 Imperial Act), the first schedule to which contained references in identical terms to those offences set out in Article 3, with only two being phrased in terms of conspiracy to commit a specified crime, namely the crimes of murder or revolt, and thus no offence of conspiracy to defraud being listed, nor conspiracy to commit any other offence.
84 The Respondents contended that the Joint Memorandum applied an approach to construction applicable to statutes and not to treaties, namely the expressio unius principle. I do not think that the contention is soundly based. The approach of the learned authors of the Joint Memorandum was conceptually in line with the principles which have been subsequently articulated in the House of Lords in Al-Fawwaz, which I have extracted in [78] above.
85 The Respondents next contended, in relation to the s 412 count of conspiracy, that the expression "defraud" is not a term of art or a technical legal expression, but an expression of wide connotation, and in the context of a treaty, it must be given a liberal construction, but it is unclear where that submission takes the Respondents' case. The crime of conspiracy, according to the common law of England, and of Australia, consists in the making of an agreement, as was emphasised in the passage in the judgment of Evatt J in The King v Weaver (1931) 45 CLR 321 at 349, cited in the course of argument, as follows:
"There is, however, a vital distinction between a conspiracy to cheat and a conspiracy to obtain money by false pretences. The latter conspiracy is a conspiracy to commit a crime. The former conspiracy is proved by showing an agreement to do certain acts of a fraudulent or dishonest character which, if done, would enable the person defrauded to succeed in obtaining a civil but not necessarily a criminal remedy. It is occasionally said to be an illogical and surprising feature of the law that an individual may do certain acts without criminal liability attaching to him, whereas a criminal conspiracy arises if two persons agree to do those very same acts; but if the result surprises, it is certainly not illogical. For conspiracy consists in the making of an agreement. The nature and quality of the agreement determine its legality or criminality, and there is no logical reason why certain agreements should not be struck at by the criminal law. What an individual may of himself lawfully do is nothing to the point. One thing he can never do - of himself - is to make any agreement."
86 It seems to me, in the light of the foregoing analysis of the nature and quality of an agreement constituting criminal conspiracy, to be an inescapable conclusion that the making of an agreement to commit (that is to say, conspiring to commit) any of the offences set out in the Treaty, other than those of murder and revolt (ie those Treaty offences numbered 1 and 28), is not intended to be a treaty offence. The context of the introductory words to the Treaty, contained in Article 1 thereof which has been extracted in [38] above, do not allow room for the parties to the Treaty to accord the character of a treaty offence to a conspiracy to commit any of the remaining other treaty offences, including the offence of "fraud… by a director". I would respectfully adopt in principle, for application in the present case, what was said by Pill LJ (with whom Astill J, the only other member of the Court agreed), in Regina v Secretary of State For The Home Department, ex parte Gilmore [1999] QB 611 at 618, in a context of addressing treaty offences, as follows:
"I have considered the history of the list and am not able to conclude that where the description of the listed offence was what Lord Lowry in Boew's case [1990] 1 AC 500 described as specific, for example embezzlement and larceny, the offence of a conspiracy to commit the offence can be included in the list by implication."
I therefore conclude that the first charge brought against the Appellant, being that of conspiracy to defraud contrary to section 412 of the Criminal Code (WA), has not engaged any offence contained in the Treaty, and in particular, that of "Fraud by a… director", and that the Appellant's submission summarised in paragraph (a) of [82] above is correct.
87 As to the eight counts of failure to act honestly as a company director, contrary to subs 229(1) of the Companies (Western Australia) Code, next set out in the Request, the text of that sub-section reads as follows:
"An officer of a corporation shall at all times act honestly in the exercise of his powers and the discharge of the duties of his office.
Penalty:
(a) in the case to which paragraph (b) does not apply - $5000, or
(b) where the offence was committed with intent to deceive or defraud the company, members or creditors of the company or creditors of any other person or for any other fraudulent purpose - $20,000 or imprisonment for 5 years, or both."
And as to the further eight counts of failure to act honestly as a company director, contrary to subs 229(4) of the same Code, also set out in the Request, the text of that sub-section reads as follows:
"An officer or employee of a corporation shall not make improper use of his position as such an officer or employee, to gain, directly or indirectly, an advantage for himself or for any other person or to cause detriment to the corporation.
Penalty: $20,000 or imprisonment for five years or both."
88 The Joint Memorandum reflects the essence of the Appellant's submissions to this Court, summarised in paragraph (b) set out in [82] above, relating to the operation of subs 229(1) of the Code. The Joint Memorandum referred firstly to the interpretation placed on the sub-section by Australian courts to the effect of failing to act in good faith in the interests of the company, with knowledge that what is being done is not in the interests of the company, but is instead in deliberate disregard of the company's best interests. The Joint Memorandum cited several authorities, including Corporate Affairs Commission v Papoulias (1990) 20 NSWLR 503, where Allen J observed (at 505-506) "The language of s 229(1) itself puts beyond doubt that the offence of failing to act honestly can be committed without there having been intent to deceive or defraud. That fully accords with the concepts, for criminal law purposes, of dishonesty, of deception and of defrauding". His Honour said further that "What subs 229(1) does is to provide only the one offence, but to specify circumstances which, if proven, make the offence worthy of a more severe penalty". It follows that if what has been done by way of dishonest exercise of powers and discharge of the officer's duties was so done with intent to deceive or defraud, that is a matter which goes to penalty rather than to the specification of an offence different from that of failing at all times to act honestly in the exercise of the powers and discharge of the duties of office. The NSW Court of Criminal Appeal (Hunt CJ, Abadee and Simpson JJ) in the matter of Yuill (1994) 77 A Crim R 314 at 330 implicitly approved of the approach so taken in Papoulias. A not dissimilar distinction had been earlier raised in Kingswell v The Queen (1985) 159 CLR 264 at 280, a case involving customs offences, where the High Court, in the joint judgment of Gibbs CJ, Wilson and Dawson JJ, said as follows:
"There is a close analogy between those cases in which the existence of the circumstances of aggravation converts the offence from a lesser to a greater one and those in which the existence of the circumstances of aggravation renders the accused liable to a penalty greater than that which could have been imposed if the circumstances did not exist. In cases of the first-mentioned kind, the circumstances of aggravation become elements of a distinct offence and therefore must be specifically alleged in the indictment. Where the circumstances of aggravation do no more than increase the maximum penalty, they do not alter the nature of the charge although they do affect, sometimes very materially, the legal consequences that may flow from a conviction. The rule of practice laid down in R v Bright is consistent with the fundamental principle that questions of fact affecting the liability of the accused to punishment should be decided by the jury when the trial is on indictment. The position is different when the circumstances said to aggravate the offence are relevant only to the exercise of the sentencing discretion of the judge. Although it would be an exaggeration to say that the rule of practice of R v Bright has been generally applied in cases where the circumstances of aggravation increase the maximum punishment but do not change the offence, it is a beneficial rule and ought generally to be followed."
89 Sub-section 229(4) does not contain an additional aggravation element carrying an increase in penalty, as in the case of subs 229(1), and though it stipulates that the offence may be committed, even though the offender does not know that he is using his position improperly, in contravention of subs 229(4). In Chew v R (1992) 173 CLR 626 at 640, Dawson J said in relation to the operation of subs 229(4):
"It is clear enough that a director of a company may act improperly with no intention of acting dishonestly or otherwise than in the best interests of the company as a whole."
In applying that approach to interpretation of the sub-section in R v Towey (1996) 21 ACSR 46 at 57, Gleeson CJ said as follows:
"The propriety of the conduct of the appellant in relation to the payment the subject of count 21 is to be assessed in the light of an understanding of the duties of a company director. It may be that the appellant, who is not a lawyer, did not himself have such an understanding. That is irrelevant to the propriety of his conduct. No doubt many directors of companies are not fully acquainted with the obligations of fiduciaries… Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties powers and authority of the position and the circumstances of the case."
90 Each of the eight counts relating to subs 229(1) of the Code takes the following basic format:
"… on or about (the specified date) at Perth… [the Appellant], being a director of (the particular Bond Group company) did, with intent to defraud the said company, its subsidiaries and shareholders, fail to act honestly in the exercise of his powers and the discharge of his duties as an officer of the said company in that he caused/authorised (the particular Bond Group company) (to do the conduct complained of) and thereby contravened s 229(1)(b) and s 570 of the [Code]."
Section 570 of the Code renders contravention of subs 229(1) an offence. Each of the further eight counts relating to subs 229(4) of the Code takes the following basic format:
"… on or about (the specified date) at Perth… [the Appellant], being a director of (the particular Bond Group company) made improper use of his position as an officer of the said company in order to gain an advantage for Bond Corporation Holdings Ltd in that he caused/authorised (the particular Bond Group company) (to do the conduct complained of) and thereby contravened s 229(4) and s 570 of the [Code]."
91 Difficult questions may therefore be seen to arise as to how the scope of Treaty offence number 19, and in particular its component "Fraud by a… director… of any company", should be construed and applied, in particular in the light of the submissions of the Appellant set out in paragraphs (b) and (c) of [82] above. In The Commonwealth v Tasmania (1983) 158 CLR 1 at 93, Gibbs CJ made the following general observations in relation to the interpretation and application of treaties, incorporating thereby the text of Articles 31 and 32 thereof:
"The interpretation of treaties is now governed by the Vienna Convention on the Law of Treaties. The general rule of interpretation is laid down in Art. 31 of that Convention, paras 1 and 2 of which are as follows:
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
Article 32, which is headed "Supplementary means of interpretation" provides as follows:
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable."
In Thiel v Commissioner of Taxation (1990) 171 CLR 338, McHugh J at 356 expressed the view that recourse to the abovementioned Articles 31 and 32 of the Vienna Convention, reflecting as they do "the customary rules for the interpretation of treaties", was appropriate in interpreting the Double Taxation Agreement between Australia and Switzerland, notwithstanding that Switzerland was not a party to the Vienna Convention. In the present case, there are no such extrinsic materials before the Court other than the terms of the Treaty, the material provisions whereof having been already set out in [38] above, to which perhaps I could add the reference to the expressions "mutual extradition of fugitive criminals" and "reciprocal extradition of criminals" contained in the opening preamble to the Treaty.
92 As to the principles governing the application of the provisions of the Treaty to particular circumstances, the Respondents referred me to dictum of Lord Wilberforce in James Buchanan & Co Ltd v Babco Forwarding & Shipping (UK) Ltd [1978] AC 141, being a dispute which concerned the construction to be applied to a contract for the carriage of goods which was expressed to be subject to the Convention on the Contract for the International Carriage of Goods by Road. The following passage appears at 152:
"The Convention of 1956 is in two languages, English and French, each text being equally authentic. The English text alone appears in the Schedule to the Act of 1965 and is by that Act (section 1) given the force of law. Moreover the contract of carriage seems to have incorporated contractually this English text. It might therefore be arguable (though this was not in fact argued) - by distinction from a case where the authentic text is (for example) French and the enacted text an English translation - that only the English text ought to be looked at. In my opinion this would be too narrow a view to take, given the expressed objective of the Convention to produce uniformity in all contracting states. I think that the correct approach is to interpret the English text, which after all is likely to be used by many others than British businessmen, in a normal manner, appropriate from the interpretation of an international convention, unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation…."
93 I was also referred by the Respondents to the reasons for judgment of the Court (Lord Widgery J and Griffith J) in Regina v Governor of Pentonville Prison; Ex parte Budlong [1980] 1 WLR 1110, where, under the heading "Double criminality", at 1118, the following appears:
"The prosecution submit that the true rule is that a criminal is to be extradited if his crime falls within the general description of a crime specified in the Extradition Treaty and the facts of the offence - that is the conduct complained of - show it to be a criminal offence punishable by the laws of both countries. As the facts of these offences show a prima facie case of burglary against both the laws of the District of Columbia and this country, the prosecution submit that extradition should be ordered."
The judgment at 1120 then cited In re Arton (No 2) [1896] 1 QB 509, where it was said by Lord Russell at 517 that the emphasis was to be placed not upon the definition of the crime, but on the acts that constitute the criminal conduct, but the passage cited from judgment needs to be reproduced, as follows:
"Is extradition to be refused in respect of acts covered by the treaty, and gravely criminal according to the law of both countries, because in a particular case, the falsification of accounts is not forgery according to English law, but falls under that lead according to French law? I think not. To decide so would be to hinder the working and narrow the operation of most salutary international arrangements."
After that citation from Arton, the judgment in Budlong at 1120 interposed the following observation, upon which the Respondents have placed emphasis:
"Here again the emphasis is placed not in the definition of the crime but on the acts that constitute the criminal conduct."
Next followed at 1120 the further citation from Arton, which affords more precision to the immediately preceding observation made in Budlong:
"We are here dealing with a crime alleged to have been committed against the law of France; and if we find, as I hold that we do, that such a crime against the law of both countries, and is, in substance, to be found in each version of the treaty, although under different heads, we are bound to give effect to the claim for extradition."
It is in the context of the last passage cited from Arton that the judgment at 1120 in Budlong then stated:
"Here too, it is the substance of the two offences that must correspond, not their precise definitions."
The Respondents contended that the substance of the offences is to be found in the charges reproduced in the Appeal Book.
94 The Respondents also placed reliance on dictum of Lord Bridge in Government Of Belgium v Postlethwaite and Others [1988] 1 AC 924 at 947 which related to requirements of the Anglo-Belgian Extradition Treaty concerning the consequences of non-presentation of statements, tendered under s 102 of the United Kingdom Extradition Act 1870, within the two months time limit laid down by Article V of that Treaty, by reason of the circumstances that the same had not been tendered in evidence without objection or, in the case of objection, with oral evidence to substantiate the contents of the statements given by the makers thereof. The issue arising there related to procedural requirements of a treaty for extradition, rather than to the elements of alleged offences. It had been found in the court below that such circumstances did not mean that there was sufficient evidence for the committal of the persons involved in relation to the extradition sought by Belgium: the passage cited by the Respondents in that regard is set out below:
"I also take the judgment in that case as good authority for the proposition that in the application of the principle the court should not, unless constrained by the language used, interpret any extradition treaty in a way which would "hinder the working and narrow the operation of most salutary International arrangements." The second principle is that an extradition treaty is "a contract between two sovereign states and has to be construed as such a contract. It would be a mistake to think that it had to be construed as though it were a domestic statute:" Reg. v Governor of Ashford Remand Centre, Ex parte Beese [1973] 1 W.L.R. 969, 973, per Lord Widgery CJ. In applying this second principle, closely related as it is to the first, it must be remembered that the reciprocal rights and obligations which the high contracting parties confer and accept are intended to serve the purpose of bringing to justice those who are guilty of grave crimes committed in either of the contracting states. To apply to extradition treaties strict canons appropriate to the construction of domestic legislation would often tend to defeat rather than to serve this purpose."
The reference in the above passage to dictum of Lord Widgery J is often to be found in extradition cases. The passage generally reflects the contention of the Respondents already touched on in [85] above.
95 Having considered each of the authoritative statements of principle which I have cited above, I have derived the most assistance from the two speeches in the House of Lords in Al-Fawwaz which I have extracted in [78] above, and propose to apply the same in the resolution of the issues now under consideration. I should add for completeness nevertheless reference to the following dictum of Deane J in Riley v The Commonwealth (1985) 159 CLR 1 at 16-19, which related to extraditing a fugitive from Ireland to England at the request of England, being a request falling for consideration by an Irish Court. After introducing the subject of double criminality at 16, his Honour said this in particular at 17-18:
"One can find, in the writings of some publicists and in some judgments of international and domestic courts, support for the view that the principle of double criminality requires correspondence or substantial correspondence between an entire offence under the law of the requesting state, being an alleged offence for which extradition is sought, and an entire offence under the law of the requested state. This approach is likely to result in primary emphasis being placed upon labels and correspondence of legal elements. If unqualified, it would significantly and arbitrarily frustrate the effectiveness of extradition arrangements between states with dissimilar systems of criminal law. The preferable view - and that which commands general acceptance - rejects the need for precise correspondence between labels or between the constituent elements of identified legal offences under the criminal law of the requesting and requested states and defines the principle of double criminality in terms of substance rather than technical form. On this view, the requirement of double criminality is satisfied if the acts in respect of which extradition is sought are criminal under both systems even if the relevant offences have different names and elements: O'Connell, op. cit., vol. 2, p.723. This view places primary emphasis upon the acts constituting the offence alleged against the accused in the warrant rather than upon general theoretical correspondence between the legal elements of the offence which he is alleged to have committed against the law of the requesting state and some offence recognised by the law of the requested state."
After then referring to some further learned writings on the subject, his Honour provided the following reference to Irish authority:
"The principle of double criminality is satisfied where, and only where, any alleged offence against the law of the requesting state in respect of which extradition is sought would necessarily involve a criminal offence against the law of the requested state if the acts constituting it had been done in that state. As O'Dalaigh CJ of the Irish Supreme Court commented in The State (Furlong) v Kelly (16) (a case in which England was the requesting state and Ireland was the requested state):
'The basic inquiry is to discover whether the several ingredients which constitute the offence specified in the warrant, or one or more of such ingredients, constitute an offence under the law of the [requested] State… If the English offence consists of, say four essential elements a + b + c + d, then a corresponding Irish offence exists only if it contains either precisely these same four essential elements or a lesser number thereof. If the only Irish offence that can be pointed to has an additional essential ingredient (that is to say, if the Irish offence may be defined as a + b + c + d + e), then there is no corresponding Irish offence… for the simple reason that, ex-hypothesize, conduct a + b + c + d falls short of being an offence under Irish law or, in plainer words, is not an offence. It is fundamental to extradition that no one shall be extradited for acts or omissions (the offence alleged in the warrant) which, if repeated within the State, would not offend against our law.' [Emphasis added]."
Applying that approach to the situation here of Australia as the "requesting" state and Poland as the "requested" state, what must be found within the elements of subss 229(1) and 229(4) of the Code is that of fraud by a director, if the terms of the relevant Treaty offence are to be satisfied in either or both cases.
96 The offence the subject of subs 229(4) of the Code may be put aside as outside the scope of "Fraud by a… director…". The notion of impropriety, inherent in the statutory expression "improper use", according to the ordinary usage of the expression, does not necessarily extend to or encompass fraud, and no allegation of fraud is made in any of the eight charges or counts based upon subs 229(4). The Macquarie Dictionary defines "impropriety" as "1. the quality of being improper; incorrectness. 2. inappropriateness. 3. unseemliness. 4. An erroneous or unsuitable expression, act etc 5. an improper use of a word.", and therefore does not necessarily or inherently encompass the legal notion of fraud. The submission of the Appellants summarised in [82(c)] above is therefore in my opinion correct.
97 The offence the subject of subs 229(1) of the Code presents however an issue of greater difficulty. The eight charges or counts based upon subs 229(1) each allege conduct in contravention thereof with intention to defraud, thereby indicating a misconception of the meaning and elements of the offence the subject of the sub-section for the reasons earlier explained, in that fraud is not a necessary or essential ingredient of the offence, but if nevertheless present in the circumstances of the case, constitutes a basis for increase in the penalty to be imposed. The fact that fraudulent contravention of subs 229(1) has been erroneously pleaded by reason of reference to paragraph (b) of subs 229(1), which only appertains to penalty, must nevertheless be addressed. In my opinion, essentially in the light of the authoritative dicta I have cited in particular from Riley (in the High Court proceedings), Arton and Al-Fawwaz, it should be concluded that the absence of fraud as an essential element in the statutory offence the subject of subs 229(1) should carry the consequence that irrespective of the apparent intention of the Attorney-General to establish the existence of fraud, albeit that the existence of fraud is only relevant to penalty, there yet remains the irrefutable circumstance that the ingredients of the offence the subject of subs 229(1) do not constitute "fraud… by a… director" within the Treaty, and consequently there remains an absence of corresponding "essential elements" between the offence which has been charged, and the nearest description of an offence contained in the Treaty. If my strict approach to analysis is incorrect, there would be no logical stopping place to propound an allegation of fraud in the pleading of any statutory offence said to have been committed in the capacity of a bailee, banker, agent, factor, trustee, director, member or public officer of a company, simply because by so doing, the penalty would be potentially more severe, yet on that footing the operation of an extradition treaty would be attracted. I would therefore conclude that the contention of the Appellant is correct, and that the Treaty is not engaged by an offence charged under subs 229(1) of the Code. I observe that in De Bruyn v Republic of South Africa (1999) 96 FCR 290 at 298, Gyles J (though in the minority) observed obiter, in relation to the reverse situation of requests of foreign states to Australia, the principle that "… it would be unfortunate if this Court gave the impression to countries seeking extradition, and to magistrates hearing applications under s 19, that a statement pursuant to s 19(3)(c)(ii) should not descend to precision as to the acts or omissions alleged but can allege relevant conduct in the form of general conclusions from primary facts". In my opinion, the reverse is also true in relation to requests made by Australia for extradition of offenders from foreign countries, particularly given the bilateral nature of extradition treaties such as is the case here. A failure to strictly adhere to the principles in Al-Fawwaz in what is in substance a field analogous to criminal law carries potentially unfortunate and undesirable implications.
98 In the result, I would conclude that the Request fell short of the Attorney-General's obligation in law to engage any offence the subject of the Treaty, with the result that the Request was ineffective and invalid according to the law of Australia, and of the 1988 Act in particular.