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[2001] NSWCCA 539
Court of Criminal Appeal (NSW)
2001-10-29
Beazley JA, Hulme J, Barr J, Mr P
Original judgment source is linked above.
Reported Decision : 53 NSWLR 726 127 A Crim R 70
CITATION : R.V. HAMZY [2001] NSWCCA 539 FILE NUMBER(S) : CCA 60301/01; 60383/01 HEARING DATE(S) : 29 October 2001, 30 October 2001 JUDGMENT DATE : 21 December 2001
PARTIES : Regina (Commonwealth)- Appellant/Respondent Bassam HAMZY - Appellant/Respondent JUDGMENT OF : Beazley JA at 1; Hulme J at 2; Barr J at 3
LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0457; 99/11/0217 LOWER COURT JUDICIAL Coorey DCJ OFFICER :
COUNSEL : Mr R.F. Sutherland for the Crown Mr P. Kintominas for the Appellant/Respondent SOLICITORS : S.E. O'Connor for the Crown J.B. Hajje for the Appellant/Respondent CATCHWORDS : Extradition -appellant voluntarily returned to Australia in custody to face charges - whether extradited to Australia - Extradition - appellant voluntarily returned to Austalia in custody to face charges - whether surrendered to Australia - Extradition - appellant voluntarily returned to Australia in custody to face charges - later charged with offences arising out of different facts - whether entitled to rely on speciality rule LEGISLATION CITED : Extradition Act (Commonwealth) Crimes Act (Commonwealth) R v Davies (1981) 76 Cr.App.R 120 AB v The Queen [1999] HCA 46 Schneckloth v Bustamonte 412 US 218 (1973) Peretz v United States 501 US 923 (1991) United States v Mezzanatto 513 US 196 (1995) Faretta v California 422 US 805 (1975) CASES CITED: Hempel v Attorney General (1987) 77 ALR 641 R v Keys [2001] NSWCCA 232 R v Wong & Leung (1998) 108 A Crim R 531 Wong & Leung v The Queen [2001] HCA 64 Pearce v The Queen (1998) 194 CLR 610 Malvaso v The Queen (1989) 168 CLR 227 R v Jermyn (1985) 2 NSWLR 194 DECISION : See Judgment at Paragraphs 86, 113
60301/01 60383/01 Beazley JA Hulme J Barr J
Judgment 1 Beazley JA: I agree with Barr J. 2 Hulme J: I agree with Barr J. 3 Barr J: The appellant, Bassam Hamzy, appeals against convictions entered in the District Court after he pleaded guilty to charges that between 1 October 1998 and 29 December 1999 he was knowingly concerned in the importation of a prohibited import, namely 772.6 grams pure of cocaine and that between 1 October 1998 and 20 January 1999 he was knowingly concerned in the importation of a prohibited import, namely 713.6 grams pure of cocaine. He originally sought leave to appeal against the resulting sentences but abandoned his application at the commencement of the hearing. The Crown appeals against what is said to be the inadequacy of the sentences.
THE CONVICTION APPEAL 4 There is a single ground of appeal against conviction, namely that the prosecution of the charges was contrary to law in that it contravened s 42 Extradition Act (Commonwealth) ("the Act"). 5 The Crown case was that throughout October, November and December 1998 the appellant and a man called Keys planned the importation into Australia of a quantity of cocaine. Some of their conversations were had on the telephone and were lawfully listened to and recorded by investigating police officers. The officers continued to observe the doings of the appellant, Keys and persons associated with them. On 29 December 1998 officers arrested a courier named Danine at Sydney Airport and seized from his possession a quantity of cocaine. On 20 January 1999 a courier by the name of Layoun was arrested at Brisbane International Airport in possession of a further quantity of cocaine. 6 Throughout the period of investigation the appellant was overseas, residing principally in Belize and the United States of America. He also visited Colombia. He left Australia, it was said, because on 30 May 1998 he had been criminally involved in a fatal shooting at Darlinghurst. He wanted to avoid being spoken to by the police. 7 The whereabouts of the appellant during that time were ascertained by police officers who listened to his conversations when he telephoned his home in Sydney. Things that he said made the police suspicious that he was planning to import drugs into Australia. Police also learned that he was likely to travel from South America to Lebanon via Miami, Florida. An official of the Attorney General's Department in Canberra sent to the United States Department of Justice a request for the provisional arrest of the accused. In accordance with the request, United States authorities arrested the appellant. In due course he was returned to Australia in custody and was later charged with the offences the subject of this appeal. 8 Extradition involves the partial surrender by one state in favour of another of an attribute of its sovereignty. It also involves a serious interference with the freedom of the person sought to be extradited. Partly because nation states are jealous of the sovereignty which they surrender by agreeing to extradition treaties and by enacting laws to give them effect and partly because of their concern to avoid abuse of the process of extradition, certain limitations and controls exist. 9 One of those limitations is called the speciality rule. It provides that where a person is surrendered by a foreign State pursuant to an extradition agreement with that State, the person will not be triable or tried for any offence committed prior to the surrender other than any offence that may by proved by the facts on which the surrender is grounded, at least until that person has been restored to or has been given an opportunity of returning to that foreign State. R v Davies (1981) 76 Cr.App.R 120; AB v The Queen [1999] HCA 46 10 In this country the speciality rule is given effect to by s.42 of the Act. Relevantly, it is in the following terms - 42 Where an extraditable person in relation to Australia is surrendered to Australia by a country… the person shall not, unless he or she has left, or has had the opportunity of leaving, Australia…: (a) Be detained or tried in Australia for any offence that is alleged to have been committed, or was committed, before the surrender of the person, other than: (i) any offence in respect of which the person was surrendered or any other 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 person could be convicted on proof of the conduct constituting any such offence: or (ii) any other offence in respect of which the country consents to the person being so detained or tried, as the case may be… 11 By s 3 the principal objectives of the Act are:
(a) 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; (b) to facilitate the making of requests for extradition by Australia to other countries; and (c) to enable Australia to carry out its obligations under extradition treaties.
12 By s 5 "Extradition Country" means any country other than New Zealand that is declared by the Regulations to be an extradition country. 13 By the same section "Extradition Treaty" in relation to a country means a treaty to which the country and Australia are parties (whether or not any other country is also a party), being a treaty relating in whole or in part to the surrender of persons accused or convicted of offences. 14 S 55 empowers the Governor General to make regulations not inconsistent with the Act prescribing all matter required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act. 15 By Reg 3 Extradition (United States of America) Regulations 1988 the United States of America is declared to be an extradition country. 16 By Reg 4 the Act applies in relation to the United States of America subject to the Treaty on Extradition between Australia and the United States of America, which is set forth as a schedule to the Regulations ("the Treaty"). It was amended in 1992 in terms of a Protocol of 1990. The relevant portions of the Treaty are as follows -
TREATY ON EXTRADITION BETWEEN AUSTRALIA AND THE UNITED STATES OF AMERICA
Australia and the United States of America, desiring to make more effective the cooperation of the two countries for the reciprocal extradition of offenders, agree as follows:
Each Contracting Party agrees, under the conditions and circumstances established by this Treaty, reciprocally to deliver up persons found in its territory who have been charged with or convicted of any of the offences mentioned in Article II of the Treaty committed within the territory of the other Contracting party, or outside that territory under the conditions specified in Article IV of this Treaty.
(1) An offence shall be an extraditable offence if it is punishable under the laws in both Contracting Parties by deprivation of liberty of more than one year, or by a more severe penalty. However, if the request for extradition relates to a person convicted of such an offence who is wanted for the enforcement of a sentence of imprisonment, the executive authority of the requested State shall have authority to refused extradition if a period of less than six months remains to be served.
(2) The following offences shall be extraditable if they meet the requirements of paragraph (1): conspiring to commit, attempting to commit, aiding or abetting, counselling or procuring the commission of, or being an accessory after the fact to, any offence described in that paragraph.
(3) For the purposes of this Article, an offence shall be an extraditable offence: (a) whether or not the laws in the Contracting Parties place the offence within the same category of offences or describe the offence by the same terminology; and (b) whether or not the offence is one for which United States federal law requires proof of interstate transportation, or use of the mails, or of other facilities affecting interstate or foreign commerce, such matters being merely for the purpose of establishing jurisdiction in a United States federal court.
(4) If the offence has been committed outside the territory of the requesting State, extradition shall be granted if the laws in the requested State provide for the punishment of an offence committed outside of its territory in similar circumstances. If the laws in the requested State do not so provide, the executive authority of the requested State may, in its discretion, grant extradition.
(5) Subject to the laws in the requested State, if extradition has been granted for an extraditable offence, it shall also be granted for any other offence specified in the request even if the latter offence is punishable by deprivation of liberty of one year or less, provided that all other requirements or extradition are met.
The determination that extradition based upon the request therefor should or should not be granted shall be made in accordance with the law of the requested State and the person whose extradition is sought shall have the right to use such remedies and recourses as are provided by that law.
(1) All requests for extradition shall be made through the diplomatic channel.
(2) The request for extradition shall be supported by: (a) documents, statements, or other types of information which describe the identity and probable location of the person sought; (b) a description of the conduct constituting the offence; (c) a statement of the law describing the essential elements of the offence for which extradition is requested; and (d) a statement of the law describing the punishment for the offence and the law relating to the limitation of legal proceedings.
(3) A request for extradition of a person who is sought for prosecution or who has been found guilty in his absence shall also be supported by ; (a) a copy of the warrant or order of arrest issued in the requesting State for the arrest of the person for the offence; (b) a copy of the charging document, if any; and (c) a description of the facts, by way of affidavit, statement, or declaration, setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it.
(4) A request for extradition of a person who has been found guilty of an offence for which extradition is sought, other than a person who has been found guilty in his absence, shall also be supported by: (a) A copy of the judgment of conviction, if available, or a statement by a judicial authority that the person has been found guilty; (b) information establishing that the person sought is the person to whom the finding of guilt refers; (c) a copy of the sentence imposed, if the person has been sentenced, and a statement establishing to what extent the sentence has been carried out; and (d) if the person has been found guilty but no sentence has been imposed, a statement affirming that it is intended to impose a sentence.
(5) The documents which accompany an extradition request shall be received and admitted as evidence in extradition proceedings if: (a) in the case of a request form the United States, they (i) purport to by signed or certified by a judge, magistrate, or officer in or of the United States, and (ii) purport to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal of the requesting State or of a Minister of State or of a Department or officer of the Government of the requesting State. (b) in the case of a request from Australia, they are certified by the principal diplomatic or consular officer of the United States resident in Australia, as provided by the extradition laws of the United States; or (c) they are certified or authenticated in any other manner accepted by the law of the requested State.
(1) In case of urgency, either Contracting Party may request the provisional arrest of the person sought pending the presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the Department of Justice in the United States and the Attorney-General's Department in Australia. The facilities of the International Criminal Police Organisation (Interpol) may be used to transmit such a request.
(2) The application for provisional arrest shall contain: (a) a description of the person sought; (b) the location of the person sought, if known; (c) a brief statements of facts of the case, including, if possible, the time and location of the offence; (d) a description of the laws violated or alleged to have been violated and, where applicable, the penalty which may be imposed; (e) a statement of the existence of a warrant of arrest or finding of guilt or judgment of conviction against the person sought; and (f) a statement that a request for the extradition of the person sought will follow.
(3) On receipt of the application, the requested State shall take appropriate steps to secure the arrest of the person sought. The requesting State shall be notified without delay of the disposition of its application and the reasons for any denial.
(4) A person who is provisionally arrested may be discharged from custody upon the expiration of sixty (60) days from the date of arrest pursuant to the application of the requesting State if the executive authority of the requested State has not received the formal request for extradition and the supporting documents required in Article XI.
(5) The fact that the person sought has been discharged from custody pursuant to paragraph (4) of this Article shall not prejudice the subsequent rearrest and extradition of that person if the extradition request and supporting documents are received at a later date. ARTICLE XIII
(1) If the requested State requires additional information to enable it to decide on the request for extradition, that State may request that such information be furnished within such period as it specifies.
(2) If the person sought is under arrest and the additional information submitted as aforesaid is not sufficient or if such information is not received within the period specified by the requested State, he shall be discharged from custody.
(3) The discharge of a person from custody under paragraph (2) of this Article shall not bar the State from submitting another request in respect of the same offence.
(4) If the person sought, after being personally advised by the competent authority of the requested State of his right to formal extradition proceedings, consents to surrender to the requesting State, the requested State may surrender the person as expeditiously as possible and without further proceedings.
(1) 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 documents specified in Article XI.
(2) A person extradited under this Treaty by a Contracting Party may not be extradited to a third State for an offence committed prior to his surrender unless that Contracting Party consents.
(3) Paragraphs (1) and (2) of this Article shall not prevent the detention, trial or punishment of an extradited person, or the extradition of that person to a third State, if: (a) that person leaves the territory of the requesting State after extradition and voluntarily returns to it; or (b) that person does not leave the territory of the requesting State within fifteen days of the day on which the person is free to do so. 17 Relevant United States domestic law is set forth in the United States Code, Title 18, Crimes and Criminal Procedure, as follows - 3184. Fugitives from foreign country to United States.
Whenever there is a treaty or convention for extradition between the United States and any foreign government…any justice or judge of the United States, or any magistrate authorized so to do by a court of the United States, or any judge of a court of record of general jurisdiction of any State, may, upon complaint made under oath, charging any person found within his jurisdiction with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention…issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or magistrate, to the end that the evidence of criminality may be heard and considered. Such complaint may be filed before and such warrant may be issued by a judge or magistrate of the United States District Court for the District of Columbia if the whereabouts within the United States of the person charged are not known or, if there is reason to believe the person will shortly enter the United States. If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention…he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made.
The Secretary of State may order the person committed under sections 3184 or 3185 of this title to be delivered to any authorized agent of such foreign government, to be tried for the offense of which charged.
Such agent may hold such person in custody, and take him to the territory of such foreign government, pursuant to such treaty.
A person so accused who escapes may be retaken in the same manner as any person accused of any offense. 18 The Court received evidence by affidavit from Mr Michael Bernard Edwards, an acting Principal Legal Officer in the Extradition Unit of the Commonwealth Attorney-General's Department, who had the conduct of the application to the United States Government. Also tendered was an affidavit of Ryon McCabe, an Assistant United States Attorney, who acted on behalf of the Australian Government in the relevant proceedings in the United States District Court, Southern District of Florida. It appears from this material that the following events happened. 19 On 14 December 1998 Mr Edwards forwarded a request to the United States Department of Justice. The document commenced in the following terms -
TO THE DEPARTMENT OF JUSTICE OF THE UNITED STATES OF AMERICA
REQUEST FOR PROVISIONAL ARREST BY THE GOVERNMENT OF AUSTRALIA The Government of Australia, Attorney-General's Department, presents its compliments to the Department of Justice of the United States of America and has the honour to request the urgent provisional arrest in the United States of America, pending transmission of a formal request for extradition, of a male Australian citizen Bassam HAMZY. The Australian authorities believe that the said Bassam HAMZY will travel through Miami on his return to Lebanon. Bassam HAMZY travelled to Belize from Lebanon via Miami on 5 September 1998.
Bassam HAMZY is a fugitive from justice. He is unaware that his extradition is sought by the Australian Government. His urgent provisional arrest is requested in accordance with Article XII of the 1974 Extradition Treaty between Australia and the United States, as amended by the 1990 Protocol ("the Treaty").
The Australian Government will transmit to the United States of America a request for the extradition of Bassam HAMZY through the Diplomatic Channel as soon as possible.
The extradition of Bassam HAMZY is sought by the Australian Government for the following specific offences:
Murder contrary to section 19 A of the Crimes Act 1900 (NSW) which carries a maximum penalty of penal servitude for life;
2 counts of shooting with intent to murder contrary to section 29 of the Crimes Act 1900 (NSW) which carries a maximum penalty of penal servitude for 25 years;
1 count of wounding with intent to do grievous bodily harm contrary to section 33 of the Crimes Act 1900 (NSW) which carries a maximum penalty of penal servitude for 25 years;
1 count of shooting with intent to do grievous bodily harm contrary to section 33 of the Crimes Act 1900 (NSW) which carries a maximum penalty of penal servitude for 25 years;
1 count of attempting to shoot with intent to murder contrary to section 29 and 344A of the Crimes Act 1900 (NSW) which carries a maximum penalty of penal servitude for 25 years;
1 count of threatening use of an offensive weapon with intent to avoid lawful apprehension contrary to section 33B(a) of the Crimes Act 1900 (NSW) which carries a maximum penalty of penal servitude for 12 years;
1 count of possess unlicensed firearm contrary to section 7(1) of the Firearms Act 1996 (NSW) which carries a maximum penalty of 10 years imprisonment; …
20 There followed a description of the appellant and a reference to relevant documents which were attached to the request according to the requirements of Article XII(2). The attached documents included a warrant for the apprehension of the appellant on each of the charges particularised in the request. The request ended with the following paragraph -
The United States authorities may contact the following Australian authorities in connection with this request for provisional arrest and extradition: (and there followed a departmental reference for purposes of correspondence). 21 Notwithstanding the statement that the request was made pending the transmission of a formal request for extradition, no further formal request was made. 22 On 21 December 1998 a United States magistrate judge of the United States District Court for the District of Columbia issued a warrant for the arrest of the appellant. The warrant cited the offences particularised in the request and violation of Title 18 United States Code s3184 pursuant to the Treaty. It is to be assumed that the complaint pursuant to which the warrant was issued was filed in the District of Columbia in accordance with the provision to that effect made by s3184 of the United States Code, the whereabouts of the appellant within the United States being then unknown. 23 The appellant was arrested at Miami International Airport, Florida on 30 January 1999 and held in custody at the Federal Detention Center, Miami. He was taken before the United States District Court, Southern District of Florida on 1 February 1999. A complaint and request for provisional arrest warrant were filed in that Court to replace the documents filed in District of Columbia court and the warrant issued by that court. The appellant was ordered to be held without bond. A hearing, called a Status re Extradition was fixed for 1 March 1999 and a Final Status hearing was fixed for 5 April 1999. 24 On 1 March 1999 the appellant again appeared before the court in Florida and executed a document called Affidavit of Waiver. The document was also signed by the attorney representing him and by the magistrate judge. The text is as follows -
I, Bassam Hamzy, having been fully informed by my attorney, David B Javits, of my rights under the extradition treaty in force between the United States and Australia and pursuant to the applicable sections of Title 18, United States Code, do hereby waive those rights and petition the Court to expedite my return, in custody to Australia.
I am familiar with the extradition treaty in force between the United States and Australia, the applicable sections of Title 18, United States Code, and the Complaint filed by the United States Attorney for the Southern District of Florida on behalf of the United States of America. I concede that I am the individual against whom charges are pending in Australia and for whom process is outstanding there. I fully understand that I cannot be compelled to be returned to Australia unless this Court certifies its finding of extraditability and the Secretary of State of the United States orders my extradition by issuing a warrant of surrender.
Nevertheless, I waive my rights to a hearing and agree to return to Australia without any promise or threats being made or any other form of inducement or intimidation being exercised on the part of any representatives, officials, or officers of the United States or of Australia, or of any person whatsoever; I execute this waiver of rights, therefore, entirely of my own free will and accord. 25 On the same day the Court made an order in these terms -
The Court having received the Complaint filed on February 5, 1999, by Ryon McCabe, Assistant United States Attorney for the Southern District of Florida, for and on behalf of the Government of the United States of America, pursuant to the request of the Government of Australia, for the provisional arrest and extradition of Bassam Hamzy, and an affidavit executed by Bassam Hamzy and witnessed by his attorney, David B. Javits;
And, further the Court having been advised in open session that Bassam Hamzy is a fugitive from the justice of the Government of Australia; that he is aware that the Government of Australia has filed charges against him and has obtained a warrant for his arrest; that he has reviewed the Complaint filed by the United States Attorney for this judicial district; that he has been fully advised of his rights in this country pursuant to the extradition treaty in force between the United States and Australia, and pursuant to the applicable sections of Title 18, United States Code;
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that the United States Marshal for the Southern District of Florida shall deliver Bassam Hamzy to the duly authorised representatives of the Government of Australia for the purpose of transporting him from this District to the Territory of Australia to be held for trial or other dispositon; and it is further ORDERED, ADJUDGED AND DECREED that the transfer of physical custody of Bassam Hamzy shall be at such time and place as mutually agreed upon by the United States Marshal for the Southern District of Florida and the duly authorized representative of Australia.
The Clerk of the Court is directed to forward a certified copy of this order to the United States Secretary of State and to the Attorney General of the United States in Washington, D.C.
26 It was submitted on behalf of the appellant that he was an extraditable person, that he had been surrendered to Australia by a country, that he had been detained or tried in Australia for an offence other than an offence in respect of which he was surrendered, that the surrendering country, the United States, had not consented to his being so detained or tried and that he had not been given the opportunity to return to the United States. 27 It is clear that the applicant fell within the definition of the term "extraditable person", which is defined in s 6 as follows -
(a) either: (i) a warrant or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act; or (ii) a person has been convicted of an offence or offences against the law of a country either before or after the commencement of this Act and: (A) there is an intention to impose a sentence on the person as a consequence of the conviction; or (B) the whole or a part of a sentence imposed on the person as a consequence of the conviction remains to be served (b) the offence or any of the offences is an extradition offence in relation to the country; and (c) the person is believed to be outside the country; the person is, for the purposes of this Act, an extraditable person in relation to this country. 28 It was common ground that the convictions the subject of this appeal were for offences committed before the applicant was returned to Australia and were other than the offences in respect of which the applicant was arrested and returned to Australia. It was agreed that the applicant had not been given the opportunity of returning to the United States before facing criminal proceedings for the offences leading to the present convictions. The only question arising on appeal was whether the United States had surrendered the appellant to Australia. 29 The Act does not define the word "surrender". 30 The provisions for Australia to surrender persons to extradition countries (other than New Zealand, for which special arrangements exist which are not relevant here) are contained in Part II of the Act. 31 By s 12 an extradition country may apply in the statutory form for the issue of a provisional warrant for the arrest of a person; a magistrate may issue such a warrant; the Attorney General may direct the magistrate to cancel it. 32 S 15 provides for the remand of persons arrested under such a warrant, for making particular custodial conditions and for granting bail. 33 S 16 provides for the receipt by the Attorney General of an extradition request from an extradition country in relation to a person and gives the Attorney General a discretion (in the circumstances set forth in the section) whether to direct to any magistrate a written notice stating that the extradition request had been received. 34 S 17 provides for a person on remand under s 15 to be released from custody or from the obligation of bail conditions if the Attorney General so directs or, if the Attorney General has given notice under s 16, after the expiry of a specified time. 35 By s 18(1) a person on remand under s 15 in respect of whom the Attorney General has given a notice under s 16 -
…may inform a magistrate that the person consents to being surrendered to the extradition country concerned in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought by that country. 36 By subs (2) unless there is reason to believe that the consent is not voluntary the magistrate must advise the person that the effect of consenting will be committal to a prison without proceedings under s 19 to determine eligibility for surrender and that the person will be surrendered if the Attorney General issues a surrender warrant or a temporary surrender warrant. 37 S 19 provides for a magistrate to determine the eligibility of the person for surrender and sets out criteria and procedures for doing so. Subs (9) provides for the magistrate to commit the person to prison to await surrender by the issue of a surrender warrant or temporary surrender by the issue of a temporary surrender warrant. If the person is found not eligible for surrender the magistrate may order the person's release. 38 By s 22 when a person consents to surrender or is found eligible for surrender the Attorney General is to determine whether the person is to be surrendered. Subs (3) requires the Attorney General to be satisfied of a number of things, namely -
(a) that there is no extradition objection (this term is defined in section 7. An extradition objection exists where the extradition offence is a political offence, where the purpose of extradition is to prosecute or punish the person on account of his or her race, religion nationality or political opinions, or where the person sought may be punished, detained or otherwise disadvantaged because of such considerations, where the extradition offence would be regarded in Australia as an offence under the military but not the ordinary criminal law or where the person has been acquitted, pardoned or already punished by the extradition country or by Australia for the same or a similar offence); (b) that the person will not on surrender be subjected to torture; (c) that the person will not be put to death for any offence; (d) that the extradition country has given a speciality assurance in relation to the person and that certain special limitations that may be made under s11 do not apply to the extradition country. 39 Such matters are mandatory. However, subs (3)(f) preserves in addition the discretion of the Attorney General in deciding whether the person should be surrendered. 40 By s 23 where the Attorney General determines that the person is to be surrendered the Attorney General must issue a surrender warrant or a temporary surrender warrant. 41 It is not necessary for present purposes to say any more about a temporary surrender warrant. 42 It will be observed that Part II contains no provision for a person generally to waive rights which arise on a request for surrender. Even when such a person consents to surrender the only step in the extradition proceedings which is avoided is the magistrate's enquiry and finding as to eligibility. In no case can a person be surrendered to an extradition country for an extradition offence unless the Attorney General first decides whether the criteria under the Act have been met and otherwise in the exercise of the Attorney General's discretion that a surrender warrant should be issued. A procedure as such as the appellant underwent in the United States District Court would not have been possible in Australia. 43 Throughout Part II the word "surrender" is only used in relation to a person in respect of whom the Attorney General has received an extradition request under s 16. Throughout the rest of the Act the ideas of extradition and surrender are linked. I have noted above the statutory meanings of the terms "extradition country" and "extradition treaty". Also by s 5 -
"extradition offence" means: (a) in relation to a country other than Australia - an offence against a law of the country; (i) for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months; or (ii) if the offence does not carry a penalty under the law of the country - the conduct constituting which is, under an extradition treaty in relation to the country, required to be treated as an offence for which the surrender of persons is permitted by the country and Australia: or (b) in relation to Australia or a part of Australia - an offence against a law of Australia, or a law in force in the part of Australia, for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for period of not less than 12 months.
"extradition request" means a request in writing by an extradition country for the surrender of a person to the country. 44 The term "surrender offence" is so defined by the same section that it can refer only to a person in respect of whom the Attorney General has received an extradition request; cf ss 22(2), 21(9)(c), 19,18, 16, 15. 45 However, there is an apparent difference in Part IV, which is concerned with the extradition of persons to Australia from other countries. Immediately before s 42 are these sections -
Where, in pursuance of any arrangement with a foreign State, any person accused or convicted of any crime which, if committed in England, would be one of the crimes described in the First Schedule to this Act is surrendered by that foreign State, such person shall not, until he has been restored or had an opportunity or returning to such foreign State, be triable or tried for an offence committed prior to the surrender in any part of Her Majesty's Dominions other than such of the said crimes as may be proved by the facts on which the surrender is grounded. 67 Article XII of the Extradition Treaty of 1972 then in force between Great Britain and the United States provided in part as follows -
A person extradited shall not be detained or proceeded against in the territory of the requesting Party for any offence other than an extraditable offence established by the facts in respect of which his extradition has been granted… 68 At the request of the British Home Office, the Foreign and Commonwealth Office made a formal request to the United States Government in the terms of the Treaty for the surrender of Davies, accompanied by such documents as the Treaty required. Davies was brought before the United States District Court for the Central District of California, which after enquiry certified to the United States Secretary of State that the evidence was sufficient, under the provisions of the Treaty, to sustain the extradition charges. That was on 31 July 1979. 69 The report of the judgment of the Court of Appeal does not reveal what, if anything, then happened in the Office of the United States Secretary of State. However, on 24 August 1979 the United States Government was informed that so far as the British authorities were concerned the extradition arrangement still applied to the case and that the speciality conditions under Article XII would be observed. 70 On 31 August 1979 Davies petitioned the District Court to expedite his return forthwith in custody to Great Britain. The Court made an order including the following - It is further stipulated between the parties - (1) that Mr. Davies is familiar with the extradition treaty in force between the United States and the United Kingdom of Great Britain and Northern Ireland, the applicable sections of Title 18, United States Code, and the court's finding of extraditability on all 31 extradition charges against him; (2) that Mr. Davies fully understands that he cannot be compelled to be returned to Great Britain unless and until the Secretary of State orders his extradition by issuing a warrant of surrender; and (3) that Mr. Davies intends to waive such right without any promise or intimidation being made or exercised on the part of the representatives, officials, or officers of the United States or Great Britain, or of any person whatsoever, and entirely of his own free will and control.
Finally, it is stipulated between the parties that Mr. Davies is waiving only his right not to be returned to Great Britain without an extradition order from the Secretary of State, and that he is retaining his right not to be tried in great Britain for any crimes on which the evidence has not been found sufficient to sustain a finding of extraditability. 71 On 13 September 1979 the District Court made an order in the following terms -
It is therefore ordered, adjudged and decreed, that the United States Marshal for the Central District of California shall deliver up to the duly authorised representatives of the United Kingdom of Great Britain and Northern Ireland the person of David William Martin Davies from the Central District of California to Great Britain to be held for trial or other disposition. It is further ordered that the transfer of physical custody of the said David William Martin Davies shall be at such time and place as mutually agreed upon by the United States Marshal for the Central District of California and a duly authorised representative of Great Britain. 72 Davies was handed over to agents of the British Government and returned in custody to Great Britain. By the time he came before the Crown Court the prosecution had decided to proceed with six only of the theft charges. Then the prosecutor thought it better to charge Davies instead with a single count of fraudulent trading under the British Companies Act, 1948. 73 Prosecuting and defence counsel believed that Davies had been extradited and that charging him with such an offence would breach the speciality rule, since proof of its commission would require proof of facts other than those asserted in the request for extradition and certified by the United States District Court. Counsel conferred and came to the view that the problem they believed existed would be solved if Davies waived his rights under the Extradition Treaty. Accordingly, Davies executed a document in the following terms -
I am aware of the fact that having been extradited on a number of counts of theft I am protected by the terms of the Extradition Act 1870 and the Extradition Treaty made with the United States in 1972 from being prosecuted for other offences. I have been advised by my counsel and solicitor that the indictment which I now face would not be amended to include an offence under section 332(3) of the Companies Act 1948 unless I consent to such an amendment. After receiving this advice, and discussing the matter with my advisers I am prepared to consent to this amendment, and I waive any right that I may have to object to such an amendment, and this amendment only. 74 The indictment was amended and Davies was charged with the new offence. He pleaded guilty and was convicted and sentenced. 75 When the Home Office and the Foreign and Commonwealth Office heard about Davies' conviction they were disturbed, particularly because of the undertaking which had been given to the United States Government on 24 August 1979. The Home Secretary referred the matter to the Court of Appeal. Davies was there represented by counsel who had appeared for him in the Crown Court. The Secretary of State for Home Affairs was represented by counsel. 76 The position of both sides was that Davies had been surrendered within the meaning of that term as used in s 19 of the British Act and extradited within the meaning of that term as used in Article XII of the Treaty. That had long been the view of the British Government and underlay its concern. Davies, of course, had no interest in arguing that he had not been surrendered and extradited. The submissions of counsel are not recorded in the report, but nothing in the speech of Lawton LJ, who delivered the judgment of the Court, suggests that either party contended for a conclusion that Davies had not been surrendered and extradited. 77 Speaking of the order made in the United States District Court, which had followed upon Davies' petition to that Court for expedition of his return to Great Britain, Lawton LJ said this
This was an unusual procedural step for the appellant to take, but it is important for this Court to remember that it was all done against a background of knowledge on the part of the relevant department in the United States and of the Foreign and Commonwealth Office. 78 His Lordship referred to the undertaking of 24 August 1979 and continued - We have had to consider the effect of the appellant's waiver. In our judgment, it was a waiver of a procedural step in the United States and nothing more. The appellant was saying to the United States authorities: "You need not write out a piece of paper with my name on it. I am going with the United States Marshal, as ordered by the court". 79 Relevantly, the Act and the British Act and the two treaties are not couched in precisely the same terms, but the steps necessary for Davies' extradition were not materially different from those necessary for the extradition of the appellant to Australia. The United States District Court had to certify that the offences were extradition offences and that the evidence was sufficient to prove them. The Court has to send its certificate to the Secretary of State. The Secretary of State had to consider whether it was appropriate to issue a warrant of surrender and, if so, to issue such a warrant. The question of extradition would be determined (against Great Britain) if the District Court found proofs insufficient. Then no certificate would be sent to the Secretary of State. On the other hand, certification by the District Court of Davies' extraditability would not determine the question in favour of Great Britian. The receipt of the certificate by the Secretary of State would do no more than enliven the discretion of that office. 80 It is not to be assumed, I think, that the Secretary of State issues a warrant for the surrender of any person for the sole reason that the District Court has furnished a certificate of extraditability. The Secretary of State is an official of the executive government of the United States and performs a function different from that of any member of the judicial arm of government. The Secretary of State may be aware of matters unknown to the District Court and unnecessary for it to know that make it inappropriate to issue a warrant of surrender. As to the exercise by the relevant executive officer of this discretion see generally Hempel v Attorney General (1987) 77 ALR 641. 81 The Court of Appeal thought that Davies had waived a procedural step and nothing more and that the order of the District Court and the handing over of Davies in custody to a representative of Great Britain combined to constitute surrender and extradition. I disagree. I do not think that the obligation of the Secretary of State to consider the matter and decide whether or not to issue a warrant for Davies' surrender could accurately have been described as a procedural step and nothing more. 82 Their Lordships did not refer to the discretion of the Secretary of State or to the fact that the Secretary of State did not issue a warrant of surrender. The Court appears to have assumed that Secretary of State was bound to issue a warrant and that all Davies did by his waiver was expedite his inevitable extradition. 83 The form of the Court order in Davies was in terms similar to those used in the appellant's case. For the reasons which I have explained, the words used were not intended to exercise powers arising under the Treaty or to attract the speciality rule. 84 The final stipulation of the order made by the District Court on 31 August 1979 that Davies was retaining his right not to be tried in Great Britain for any crime on which the evidence had not been found sufficient to sustain a finding of extraditability and the assertion in the waiver he later executed in the Crown Court of the fact that he had been extradited and was protected by the Extradition Treaty and the British Act were without effect. Davies had no such rights and could not have acquired them without the issue by the Secretary of State of a warrant for his surrender. 85 I do not think that Davies is authority that there can be a surrender and extradition of a person from the United States without the issue by the Secretary of State of a warrant for the surrender of that person. 86 As Article XIV makes plain, the specialty rule is intended to apply only to persons extradited under the Treaty. The appellant was not extradited. He was not surrendered to Australia. He did not acquire the right not to be detained or tried for the offences the subject of this appeal. I would dismiss the appeal. THE SENTENCE APPEAL 87 For these purposes I shall continue to call Mr Hamzy the appellant. The two offences the subject of the Crown appeal against sentence were constituted by the importation at Sydney on 28 December 1998 of 1.067 grams of cocaine, equivalent to 772.6 grams of pure cocaine and the importation at Brisbane on 20 January 1999 of 1.01 kilograms of cocaine, the equivalent of 713.69 grams pure. In each case the cocaine was found concealed in the shoes of the courier. Each amount imported was worth $500,000. 88 The appellant pleaded guilty on the first day of his trial, 14 February 2000. For reasons which do not need to be explained, the sentencing proceedings did not begin until 2 June 2000 and remained part heard for a further eleven months. The sentencing judge imposed sentence on 3 May 2001. Before imposing sentence on the two importing counts his Honour had sentenced the appellant to concurrent fixed terms of nine, five and five months respectively on each of three offences of supplying heroin, amphetamines and LSD respectively. The sentences commenced on 30 March 1999 and the longest expired on 29 December 1999. On each of the importing counts his Honour sentenced the appellant to imprisonment for nine years, each sentence to commence on 29 December 1999, the date of expiry of the longest of the fixed terms. A non-parole period of five years six months was fixed. 89 The appellant was on bail for the supply offences when he committed the importation offences. 90 Although the two offences were quite separate and distinct acts of criminality, they must be viewed as part of a continuing enterprise to import cocaine into Australia between the appellant, operating from abroad and obtaining the cocaine for importation, and Keys, his associate in Australia. It is clear from the intercepted telephone calls that the appellant was the initiator of the enterprise and directed its operation. There were conversations recorded which suggest that there had been another importation involving them both in respect of which no charge was laid. There were also conversations indicating that other importations were to take place had the appellant and Keys not been arrested. The only relevance of these uncharged matters is to show that the two offences on the indictment were not isolated acts and that the enterprise only came to a conclusion because of the intervention of police. 91 Keys acted upon the appellant's instructions in recruiting the couriers and obtaining the shoes in which the cocaine was to be concealed. The respondent gave Keys directions about buying plane tickets for the couriers, the amount that the couriers should be paid and the amount to be given to the couriers to take to Central America. The appellant also instructed Keys as to alternative routes to Australia to be taken by the courier Layoun after Danine's arrest. 92 The appellant was charged with the offences on 30 April 1999 after his return to Australia. 93 Although no question of parity arises on a Crown appeal, it is nevertheless informative in evaluating the sentences imposed upon the appellant to consider them in the context of the sentences imposed upon the other participants in this enterprise. In his remarks on sentence his Honour referred to submissions made by counsel appearing for the appellant to the effect that the sentence imposed upon Danine should be a guide to the sentence to be imposed upon the appellant notwithstanding their different criminality. 94 Danine pleaded guilty to one charge of importation and received a head sentence of 6 years' imprisonment with a non-parole period of 3 years and 9 months. Layoun also pleaded guilty to a single charge relating to his importation and was sentenced by the Supreme Court of Queensland to a head sentence of 8 years' imprisonment with a non-parole period of 3 years. Taking into account remissions available in Queensland this was the equivalent of a sentence of about 6 years in New South Wales. 95 Keys pleaded guilty before a magistrate and was committed for sentence to the District Court for offences identical to those charged against the appellant. His Honour sentenced him to concurrent terms of imprisonment of 8 years with a non-parole period of 3 years and 6 months. A successful Crown appeal resulted in this Court's increasing Keys' sentence to a total sentence of 11 years' imprisonment with a non-parole period of 5 years: R v Keys [2001] NSWCCA 232. 96 The Crown submitted that having regard to the sentences imposed upon the other participants in the enterprise and their lesser criminality the total sentence imposed for the appellant's involvement in this enterprise was manifestly inadequate. Further, the Crown contended that, there being two discrete importations through two different ports of entry and by way of different couriers at different times, his Honour erred in imposing concurrent sentences for what were quite separate and serious acts of criminality. Finally, the Crown submitted that his Honour paid too much regard to the subjective features relating to the appellant. As a result of these alleged errors it was submitted that the sentences imposed fell outside a proper exercise of the sentencing judge's discretion. 97 It is clear from both the oral and written submissions of the Crown before the sentencing Judge and from what his Honour said in his sentencing remarks that the foundation upon which the sentences were determined was the judgment of this Court in R v Wong and Leung (1998) 108 A Crim R 531. That judgment set out as a guideline an appropriate range of sentences for persons charged with offences concerned with the importation of narcotics where those persons were couriers or persons low in the hierarchy in the organisation behind the importation. It is no longer appropriate to have regard to that case insofar as it purports to lay down guidelines for other cases: Wong & Leung v The Queen [2001] HCA 64. 98 In its written submissions in the District Court the Crown indicated that the appellant and Keys were "clearly more culpable than the couriers they recruited". In oral submissions the Crown indicated that the appellant and Keys were "more than couriers" and that there should be a distinction between the sentences imposed upon them and that imposed upon the two couriers. Defence counsel submitted than in the present case there was not as great a disparity in the criminality between the couriers and the appellant as might normally be the case, because of the increased role of the couriers. His Honour found some favour with that submission although recognising that the appellant was the organiser of the enterprise. Defence counsel suggested that a range of six to nine years was appropriate. 99 At the conclusion of the sentencing proceedings on 11 December 2000, the matter was adjourned until January 2001. His Honour stated the following: I will tell him nine months, six for the State and five and a half years for the Commonwealth. I will backdate this date (the State?) to the early 1999 date, 30 March. I will backdate the conviction to the December date in 1999. He knows what he is getting. 100 When the sentencing proceedings resumed on 3 May 2001 the Commonwealth Crown sought to make further submissions both in writing and orally as to what the appropriate sentence should be. In effect the Crown indicated that a sentence of the order indicated by his Honour would constitute appealable error. The Crown had notified the respondent's legal representatives of this view in February. The basis of the Crown submission was that a starting point of 14 years before an application of the appropriate discounts did not reflect both the objective seriousness of the two acts of importation and the appellant's role in them. 101 Notwithstanding the Crown's further submissions the sentencing judge imposed the sentence he had earlier indicated, principally it seems because he would have imposed that sentence on 11 December had the court had sufficient time to complete the matter on that day. The question arises whether there has been any conduct by the Crown which would require this Court to refuse to intervene even if error were found in the sentences imposed by his Honour. I shall return to that matter later. 102 The appellant was but nineteen years of age when he committed these offences. As I have already indicated, he committed them after he had absconded on bail for the supply offences. He had a minor criminal record involving matters dealt with in the Local Court, mostly by way of the imposition of a fine. He had never been sentenced to a period of custody. He himself commenced using prohibited drugs at the age of fifteen years. His Honour referred with apparent approval to the submission that the appellant had a disadvantaged background which contributed to his involvement in drug use and his failure to consider the consequences of his actions. His father was in custody serving sentences. The probation report indicated that the appellant had now become aware of the effect of drugs on himself and others. 103 As is so often the case in sentencing appeals the errors attributed to the sentencing judge are only disclosed, if at all, by the sentences imposed. There does not appear to me to be any patent error in anything said by his Honour during his remarks. However, it seems to me that his Honour was clearly in error in imposing concurrent sentences upon the appellant for the two offences of importation. Identical concurrent sentences were inappropriate because there was a degree of overlap between the criminality involved in each offence and according to the principles laid down by the High Court in Pearce v The Queen (1998) 194 CLR 610 at 624, it should not appear that an offender is being punished twice for the same criminality. As this Court indicated in Keys there was a large amount of common criminality involved in the two offences even though they were separate importations. 104 Further, there was clearly more criminality revealed by the fact that there were two actual importations than would have been the case if there had been only one. Nowhere in his remarks does the sentencing judge appear to have appreciated this fact. His Honour seems to have determined the sentence on the basis of a single importation of 1.5 kilograms, rather than two importations each of about 700 grams. The appropriate sentence for either of the counts in the indictment taken individually could not reflect the overall criminality that arose from the commission of the two offences, each in itself a serious act of importation. 105 The maximum penalty prescribed for each offence was 25 years' imprisonment. His Honour determined that the appropriate sentence to be imposed upon the appellant for these two offences was 14 years' imprisonment which he then discounted by a little more than a third to take account of the unavailability of remissions in accordance with s 16G. In my view that sentence fails in a very substantial way to reflect the objective criminality involved, given the appellant's role in the two importations. The appellant was entitled to only a minimal discount for his pleas of guilty coming as they did on the first day of his trial. They were no evidence of remorse. Apart from the appellant's youth and the delay in sentencing there was little to mitigate the objective seriousness of the offences. The fact that he had been himself a user of drugs had no significant relevance in light of the commercial nature of these offences. 106 The sentences imposed were in my view so inadequate that this Court should, notwithstanding the limitations which are placed upon this Court when it deals with Crown appeals and putting discretionary matters to one side, intervene and increase them .In my view, the sentences indicate that a considerable error in principle has occurred in his Honour's evaluation of the seriousness of the appellant's criminality and his Honour's assessment of a sentence calculated to deter any person from embarking upon an enterprise of importing cocaine into this country for profit. It is not often that the principals in drug importations are before the courts for sentence. When they are, the courts should take the opportunity to denounce their conduct by salutary and condign punishment. The fact that the organisation in the present case was able to function efficiently with only three levels in the hierarchy does not detract from the significance of the appellant's role. 107 The question arises whether this Court should decline, in the exercise of its discretion, to intervene. I return to the matter of the effect of the Crown's asserted concession that an appropriate starting point for the determination of the sentence to be served was 14 years and that his Honour announced the sentence he intended to impose based upon that concession. The transcript does not reveal what was said by the representative of the Commonwealth Crown on 11 December. But apparently from notes taken by the solicitor instructing counsel on that day there was a suggestion that the Crown had, at least indirectly, permitted the judge to proceed on the basis that there was no error in the approach he was taking. 108 The stance taken by the Crown before the sentencing court is an important consideration when this Court is considering whether it should intervene on a Crown appeal. Clearly if the Crown seeks to change the nature of the case and arguments it presented below: Malvaso v The Queen (1989) 168 CLR 227 at 240, or if in some way it led the sentencing court into the error that it alleges was made by the sentencing judge, for example by conceding that the sentence passed was open to the judge: R v Jermyn (1985) 2 NSWLR 194 at 198, this Court is ordinarily reluctant to interfere notwithstanding that error has been established. But it is a matter of discretion and whether or not the Court will interfere and to what extent depends upon the particular circumstances of the case. One such circumstance is whether the error was so apparent that the sentencing judge ought to have been aware of it and another is the extent to which the sentence imposed is erroneous. 109 In the present case, assuming that the Crown at least acquiesced in the suggestion that the sentence of 14 years was an appropriate starting point, the Crown withdrew that concession before sentence was passed. The sentencing judge was obliged to take into account the conduct of the Crown in so far as the appellant may have been disappointed in his belief that a manifestly inadequate sentence would be passed upon him. But the fact that his Honour had indicated a sentence to the prisoner or that the particular sentence may have been passed had the court been in a position to do so before the Crown's concession was withdrawn, did not in my view require or justify that his Honour simply impose the sentence indicated without any further consideration of what sentence was appropriate. 110 In any event, it should have been obvious to his Honour that the sentence proposed was totally inadequate regardless of any concession obtained from the representative of the Crown. The principles and sentencing pattern applicable to this type of offence were well-established. The fact that the sentencing error by the judge was not a result of anything done by the Crown is apparent from this Court's judgment in Keys. The sentence passed on that offender, which was imposed before the sentencing of the respondent, was equally erroneous and there was nothing to suggest that that his Honour was led into error by the Crown in that case. 111 In my opinion the Court should allow the appeal and resentence the appellant. Apart from the discount of about a third due to the appellant under s 16G the respondent is also entitled to a discount of about 10 per cent for the plea of guilty. There are also the subjective matters to which I have already referred and the delay in the sentencing proceedings being finalised. Because this is a Crown appeal the sentences imposed by this Court should be towards the bottom of the available range. In determining the sentence which I propose I have taken into account the matters contained in s 16A Crimes Act (Commonwealth). 112 There should be an overall sentence imposed of 13½ years dating from 30 December 1999 and made up of 9 years imprisonment on the first count and 4½ years on the second count, the two sentences being served cumulatively. Notwithstanding the appellant's age I see nothing in his circumstances which would require a non-parole period of less than the 60 per cent which is at the lower end of the range normally fixed in relation to a Commonwealth sentence. In accordance with s 19AB the Court should fix a single non-parole period in respect of the total sentence imposed. 113 I propose the following orders: (i) Appeal is allowed; (ii) Sentences imposed by Coorey DCJ are quashed; (iii) (a) On the second count the appellant is sentenced to 4½ years' imprisonment to commence on 30 December 1999 and to expire on 29 June 2004; (b) On the first count the appellant is sentenced to 9 years' imprisonment to date from 30 June 2004 and to expire on 29 June 2013; (c) There is to be a non parole period in respect of both counts of 8 years which commenced on 30 December 1999 and will expire on 29 December 2007.
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R
Davies
[2001] HCA 64
(1987) 77 ALR 641
(1998) 194 CLR 610
(1989) 168 CLR 227
(1985) 2 NSWLR 194