R v Hong Phuc Truong [2002] VSCA 27

R v Hong Phuc Truong [2002] VSCA 27 - VSCA 2002 case summary — Zoe

[9]

It may be seen, therefore, that what has now arisen is a highly technical argument effectively as to jurisdiction which was not drawn to the learned trial judge's attention nor, so it would appear, did it occur to any of the experienced counsel appearing at the trial. Although it may be argued in simple terms, as indeed it was, that the charges of conspiracy to kidnap and conspiracy to murder did not require proof of one element in each case which had to be proved at the trial, namely, the actual kidnapping and the actual murder, respectively, the argument poses certain difficulties in any case where a similar but different offence is later charged. Although the comparison which must be made is between the counts at any proposed trial and the charges in this jurisdiction which led to the request for surrender, the conduct supporting the latter charges, which were the subject of the request for surrender to the other jurisdiction, namely in this case the United Kingdom, that conduct must formally be set out and expressed in terms of acts and omissions sufficient to satisfy that other jurisdiction that it is proper to grant a surrender warrant. Although the elements of the charges in each country were here substantially similar, and so were not identical in all respects, such charges are often expressed in significantly different terms (especially in non-common law countries), and, moreover, the enquiry which is made in the surrendering jurisdiction is not whether the facts proved satisfy the requirements of the law in the requesting country, in this case in Victoria in particular, but is, by long hallowed practice and frequently statutory requirement, to be resolved by a consideration of what constitutes the equivalent of the stated offence in the country to which the request is made. As I would understand it, that is why ordinarily the other well-known principle of extradition law, that of double criminality, must be applied by the magistrate or other tribunal invested by the requested country with the duty of determining whether an extraditable offence has been established. Although it will not be necessary to examine the latter principle as such in detail for present purposes, the need to provide particulars sufficient to satisfy the requested country's requirements suggests the difficulty which will here have to be resolved, whether the "conduct constituting any such offence" can properly be confined to the elements which make up the offence, at least in this jurisdiction, or whether some broader concept is being described. To add to the Court's difficulties, this is the first time in this country, to our knowledge, that an issue of this kind has arisen under the present legislation, although by chance some months before the hearing of this application I was party to an order in R. v. Ken Ha Khanh Phong[7], in which the Commonwealth Director of Public Prosecutions conceded that a count brought in the trial of that applicant went beyond that permitted in consequence of an extradition order made in Hong Kong, so that the matter was not then the subject of any argument.

[11]

The applicant was said, at each stage of the proceedings, to be "the most senior member of a network of Vietnamese criminals" involved in peddling drugs, who was resident in London but who had links with Hong Kong, Vietnam and Australia at least. One may observe, and so the learned judge concluded at the stage of sentencing the applicant, that the evidence went no higher than allowing an inference that the applicant had a significant role as an organiser and enforcer in a substantial drug cartel. At the beginning of the events relevant to this application, in February 1996, the applicant flew into Melbourne from Hong Kong under an alias to secure the assistance of a number of persons of Vietnamese origins to arrange bank transfers of large sums of money. It is said that he made clear that he wished to import a substantial shipment of heroin into Australia and needed people to assist, and for that purpose he enlisted the aid of his older sister Truong Thi Van (Mrs Van) who lived in Melbourne. Through her the applicant came to know of Ha Que Thi Mai (Mrs Ha) who was a wealthy importer and exporter of clothing and footwear. The applicant met Mrs Ha on 16 March 1996 at a Melbourne hotel at which he asked her to assist him to import heroin into Australia or, it may be, to transfer $400,000 in cash overseas for him. The prosecution case was that the applicant asked Mrs Ha to use consignments of clothing as a means of sending heroin, but she refused his request, whereupon he asked her to think over the matter again. Other attempts were made to persuade Mrs Ha, and on the second occasion he made clear that there would be unfortunate consequences resulting to her or her family if she did not take part. At this stage the applicant flew to Hong Kong but he continued from there to telephone Mrs Ha seeking to persuade her to assist him. If she did not, so she alleged, she would have to pay $400,000 protection money because of her knowledge of the applicant's involvement in drug importation. Mrs Van also sought to put pressure on Mrs Ha and eventually the latter agreed to pay her some $20,000 to be transferred to the applicant, but this was said not to be enough.

[79]

As explained to the jury in his charge, the learned judge did not find it necessary to examine the various legal principles in great detail for he correctly observed that, if the jury accepted the Crown case, it was of little consequence precisely what role the applicant played in terms of a doctrine of complicity. He would clearly be seen to have been planning and instigating those acts which led to the kidnapping of Mrs Ha's son. Moreover, the learned judge pointed out that in these circumstances it was of little consequence whether the applicant and those connected with him originally formed an intention to kill Le Anh, for if the jury accepted that he was directly concerned in the kidnapping of the young man, then he would nevertheless be guilty if they were satisfied that the death of Le Anh was, in his terms, "a realistically possible consequence" of his involvement in the kidnapping itself. This followed even though the actual acts of kidnapping and murder were carried out by others. So far as the notion of concert was concerned, the learned judge felt it unnecessary to examine the matter in detail. As he put it, if two or more persons agree to commit a crime and all play a part in its commission, then they were all equally guilty of the crime. Whether or not that correctly dealt with the requirement of presence in a case somewhat different from the instant case, in substance the judge said that, if they accepted the Crown allegation that the applicant was the initiator, instigator or controlling force behind the kidnapping, then he must be taken as responsible for its commission and for its consequences. It was the participation in the plan which was challenged by counsel for the accused but, from the judge's description, and from the lack of objection to any aspect of his charge in this respect, one may take it that counsel accepted that, if the facts were made out to the satisfaction of the jury, then there could be little doubt that the applicant was guilty of the relevant offences. On this application counsel for the applicant examined the concepts of concert in far greater detail, as will be seen below, but a sophisticated analysis was not seen necessary by the learned judge in the circumstances of the present case and there was in fact no ground argued on this application relating to the judge's directions to the jury.

[90]

The section and the speciality rule, however, are not intended to be confined in their operation to extradition between England and Victoria, for s.42 applies to every person extradited to Australia from whatever nation is prepared to surrender persons to this country.[28] One must bear in mind that the "offence in respect of which the person was surrendered" is not ordinarily resolved, so far as the surrendering country is concerned, by reference to Victorian or Australian law, but, by reason of the principle of "double criminality", it is ordinarily determined in practice by asking whether the factual basis of the "requested" offence would give rise to an offence in that country. One can speak only in generalities in this area, unfortunately, because the legal systems for extradition in each country vary to a greater or lesser extent. Essentially the double criminality rule "requires that an act shall not be extraditable unless it constitutes a crime according to the laws of both the requesting and the requested states".[29] The rule howsoever defined has never been disputed for the last century or more as it primarily rests on the basic principle of reciprocity "which underlies the whole structure of extradition".[30] It importantly prevents the extradition of persons for offences not known to the requested state but its application has caused difficulties in practice over the years. In broad terms, upon an examination of the quite extensive and sometimes conflicting authority, it can be seen that there have been differences as to whether, or the extent to which, the relevant tribunals or authorities in the requested state must examine the nature and constituent elements of the offence described by the requesting country. It must be remembered that in most, if not all, jurisdictions the enquiry made in the requested state is not a judicial enquiry but is essentially administrative, although, to confuse matters greatly, the executive almost invariably relies upon a finding made by a magistrate, judge or other legally qualified tribunal as to the legal requirements which must be satisfied before any request leads to any surrender of the accused.[31] Although in most common law countries those decisions, as are those of the relevant minister or other official, are frequently the subject of some form of judicial review, the task of determining eligibility is ordinarily given to a judicial officer at a relatively low level in the hierarchy. It would be difficult enough for any judge to embark on a comparative exercise as to the legal significance of each of the constituent elements which are alleged to make up an offence in a foreign country and thereafter to compare those elements with those of a relevant offence in his or her own jurisdiction. But for the most part it has been seen to be impracticable for a magistrate to do so, thus placing the emphasis for the purpose of the double criminality rule on ascertaining whether the conduct alleged by the requesting country would amount to an offence in the jurisdiction with which the examining magistrate or other judicial officer is familiar. That is why in Australia s.19(2)(c) provides that one of the conditions of determining whether a person sought from Australia is eligible for surrender is that -

[95]

Although the relevant offences for the purpose of the present case may be said to be very similar in content and the constituent elements in both jurisdictions substantially the same, that cannot be said of many other jurisdictions, so that the enquiry as to eligibility for surrender will frequently have involved and will involve an enquiry as to an offence, though similarly named (often in translation), where the elements are different, not necessarily as a matter of practical fact, but as a matter of legal description at the very least. That would seem the reason for the qualifications contained in sub-s.(3) of s.10 of the Act as to the definition of "conduct constituting an offence" which are laid down for the enquiry to be made pursuant to s.19(2)(c)[34], in that it is said (in para.(a)) that "where the conduct or equivalent conduct consists of two or more acts or omissions - regard may be had to all or to only one or some of those acts or omissions" and, pursuant to para.(b), that any difference between the categorisation or denomination of offences under the laws of the two countries "shall be disregarded". Doubtless para.(a), at least, was designed to overcome what I shall describe as the "A + B + C + D" argument espoused by O'Dalaigh, C.J. in State (Furlong) v. Kelly[35], by Lord Bridge in Government of Canada v. Aronson[36] and in a dictum by Deane, J. in Riley v. The Commonwealth[37], to the effect that, if the similar offence in the requested state contains a further element beyond that which forms part of the offence which forms the basis of the request by the requesting State, then the mere fact that the evidence or other particulars forming part of the basis for the eligibility hearing contains the required element under the law of the requested State will not overcome the absence of that element as a matter of law in the offence which founds the basis for the request. Thus in Aronson, as in a number of other cases, the relevant offence under the Forgery and Counterfeiting Act 1981 (U.K.) contained an additional element requiring proof of an intention to induce somebody to accept the subject document as genuine, so that that person would act to his or her prejudice, which was not a requirement of the Canadian legislation. In Aronson that meant that there was a failure to satisfy the required test under the Fugitive Offenders' Act 1967 (U.K.), which required proof that "the act or omission constituting the offence" would amount to an offence under United Kingdom law. Again the Australian provision is not strictly relevant to the basis upon which persons may be extradited to this country, but the present section and the cases to which I have just referred reflect the variety of approaches taken by extraditing countries in determining the basis upon which a person may be surrendered and in applying what is loosely called the double criminality rule. It is unnecessary to examine authorities in other jurisdictions which have considered the concept: it is sufficient to say that either the legislative basis for imposing the test has varied from country to country or the interpretations placed on the relevant statutory provisions and on the various provisions of different treaties, where those provisions may be directly invoked, has meant that it is not possible to state that there is any universal or common basis upon which the comparison is made, whatever be the desire, at least in many jurisdictions, to restrict extradition to circumstances where the claimed offence would on the face of the matter amount to criminal conduct in the requested State.[38]

[96]

What follows from this discussion is that one ought to be cautious about giving a rigid interpretation to the language of s.42, as modified by s.10, for the purpose of ascertaining what offences are comprehended by the restriction contained in s.42. If one takes too narrow and technical approach, then it will be open, in every case in which an accused has been surrendered to Australia pursuant to some extradition arrangement or the other, to claim that the offence in respect of which he was surrendered was different in kind, by reference to its constituent elements, from that which is the subject of the presentment or indictment, or alternatively that no other offence can come within the second part of the restriction in sub-para.(i) of s.42(a) in that the conduct constituting the relevant offence was inherently different by definition from that for which an accused is later prosecuted. Of course, if it could be said that there was some overriding principle of speciality which would lead to that conclusion, then there would be strong ground for contending that the section should be read narrowly. On the other hand, if there are a variety of tests posed and procedures adopted to obtain extradition pursuant to treaties or other mutual arrangements, then it would be strange if the section were given an interpretation which denied practical efficacy to the provisions contained in such treaties and arrangements. It must again be remembered that, although s.42 is essentially a provision independent of such arrangements in the sense that it cannot be said to have been passed in order to give effect to them, the consequence of a narrow interpretation of this section, and especially the words "the conduct constituting the offence", will, as like as not, have equal consequences for the interpretation of the other sections which require a similar test to be applied in relation to double criminality and, more particularly, will place a restricted meaning upon the speciality assurance which other nations are required to give in order to obtain extradition. If this is seen by other nations to place unreasonable restraints upon them, in that they would view the agreed obligations under the relevant treaty to have been to a degree thwarted, then one of the objects of the Act will not have been carried into effect namely, as appears from s.3(c), "to enable Australia to carry out its obligations under extradition treaties".

[98]

The obvious answer to any assertion that the speciality principle ought to affect the interpretation of the section is, seemingly, that the statute represents a deliberate choice by the legislature to express the principle in the manner it has now chosen. It cannot be said directly that the intention was to codify the rule appearing in s.42, for that is a section which deals with extradition to Australia and object (a) in s.3 of the Act, "to codify the law relating to the extradition of persons", is explicitly confined to extradition to extradition countries. That is, however, an oversimplification for the part of the Act which is said to be a codification includes those provisions contained in sub-ss.(3) and (4) of s.22 requiring the "speciality assurance" to be given by countries seeking extradition of persons from Australia. As the language is for all intents and purposes identical in the relevant respects to that used in s.42, and the language in each case reflects an apparent change from that which appeared in the former legislation, it would be strange if the same language were to be given different meanings according to whether the provision fell within that part of the Act which was said to be codified or that which was not so said. Upon this basis the section would then mean no more and no less than what its language could properly bear. Nevertheless the codification, and indeed the whole Act, is said also in object (c) of s.3 as being intended "to enable Australia to carry out its obligations under extradition treaties". Many of those treaties, indeed the majority of them, contain speciality provisions, so that one cannot ignore the fact that both provisions were intended to reflect Australia's international obligations, which may be said to include an obligation to observe at least the concept contained in the speciality principle in international law. The absence of an intention to codify s.42, therefore, is too simple an answer to the question raised.

[99]

The language adopted for the purposes of the Act must be assumed to have been chosen in order to achieve compliance with those obligations and it should be noted that where the objects section refers to Australia's obligations "under extradition treaties", the latter word is defined in s.5 to include also conventions, protocols, agreements or arrangements. "Treaty" (so defined) obligations have a special significance so far as the Act is concerned. Part II of the Act which relates to "extradition from Australia to extradition countries" is confined to "extradition countries", whereas Part IV relating to "extradition to Australia from other countries" and containing only a limited number of provisions, including s.42, is not so confined. As a matter of practice all countries with whom Australia has treaty arrangements have been declared by regulation to be "extradition countries", as have been a number of other countries, including a large proportion of Commonwealth countries, who, in circumstances which need not be here examined in detail, are parties to what, though it is not a treaty, was originally known as the "London scheme", which was originally agreed in 1966 and which is now described as the "Scheme relating to the rendition of fugitive offenders within the Commonwealth", as amended in 1990.[39] The unusual aspect of this need to have "extradition countries" proclaimed by regulation is that s.11 of the Act contains an elaborate scheme permitting the regulations also to vary the content of certain parts of the Act, the object being to bring the relevant provisions of the Act into conformity with Australia's treaty and other obligations to those countries. On its face it would normally be remarkable if the executive government of the Commonwealth could vary the substantive content of a statute by "limitations, conditions, exemptions or qualifications" as it saw fit, but that is here permitted by s.11(1), to the extent (in the first place)[40] that they are "necessary to give effect to a bilateral extradition treaty", although power is also given[41] to provide for similar limitations etc. in relation to other extradition countries. The purpose of the latter paragraph is to permit provision to be made in conformity with the Commonwealth scheme. In the case of the United Kingdom regulations have been passed, but the relatively small number of limitations and the like do not affect any of the sections here under consideration.[42] By contrast the regulations relevant in the case of Ken Ha Khanh Phong derived from the treaty known as the "Agreement for the Surrender of Accused and Convicted Persons" between the government of Australia and the government of Hong Kong signed in 1997, which was given effect to by the Extradition (Hong Kong) Regulations 1997 and which by Article 18 imposed a limitation on s.42 and s.22 by requiring that any alternative offence for which a person could be returned under the agreement should be "any lesser offence, however described, disclosed by the facts in respect of which return was ordered ...".

[143]

Before examining authority further, it must be said that any enquiry into "the elements or ingredients" of the offence which is the subject of a request, seems to impose difficulties of analysis and application which should not be imposed on magistrates in the performance of their duties under s.19. In the first place there seems to be a firm line of authority[95] now to the effect that: "The magistrate does not have to be satisfied that the `conduct constituting the offence' as set out in the section 19(3)(c)(ii) statement constitutes the foreign offence described in the section 19(3)(c)(i) statement ...". This view, which seems consistent with similar views expressed in other jurisdictions[96], essentially protects the magistrate from having to engage in a complex, and likely to be frequently disputed, exercise in examining precisely what constitutes the offence in the foreign jurisdiction which has made a request and confines the magistrate's attention to seeing whether the acts or omissions in question would have constituted an offence in the relevant jurisdiction in Australia coming within the description of an "extradition offence". If that be so, and it seems to me to be the only sensible way of dealing with such problems at the level of determining eligibility for surrender, a comparative exercise in determining the acts and omissions which make up the foreign offence and the acts and omissions which make up the local offence ought equally to be precluded. Doubtless one could require, as part of the proper materials making up "a duly authenticated statement in writing setting out the conduct constituting the offence", that a police officer or other official should asseverate what makes up the elements or ingredients of an offence in the requesting country. But that seems not to have been so far required and in any event might itself pose problems of analysis. One might also observe, on the opposite side of the coin, and from the viewpoint of determining satisfaction with s.42, that there must inevitably be a wide variety of documents which would satisfy the tribunals of extraditing countries which could not be analysed in those terms. Even in the present case, where there was a request from one common law country to another, the supporting affidavit did not examine the matter in terms of elements or ingredients but merely gave a detailed statement as to the evidence relied upon in support of the request, in accordance with the requirements of the English statute.[97] Moreover, whether looking at it from the viewpoint of proceedings under s.19 or from that of a country responding to a request by Australia, a description of what amount to elements or ingredients of a foreign offence may in many cases, and certainly when the system of jurisprudence is very different from that of this country, merely add to the problems of analysis, for those elements or ingredients would then have to be "translated" into language or at least concepts familiar to magistrates in Australia. In other words, the test literally imposed by the dictum earlier set out[98]

[151]

Although his Honour proceeded to state that the relevant emphasis should be on the "facts on which the request for [the] return is grounded", he appears to retreat[105], with great respect, into an analysis which depends upon a comparison between the legal constituent or essential elements as laid down by one jurisdiction in comparison with the legal constituent elements applicable in the other jurisdiction. Having regard to the rest of the judgment, however, it would seem his Honour placed heavy emphasis for this purpose on the use of the expression "the act or omission constituting the offence ..." contained in the 1966 Extradition (Foreign States) Act 1966 as in some way requiring a comparison of the constituent elements of the offences in both requesting and requested States. To that extent, with great respect, I do not believe that his analysis reflects what was intended either by that legislation or by the international principle which he suggests it was intended at least in part to reflect. In any event the words "constituting the offence" were not then qualified by any provision similar to the present s.10(2). Indeed it is fairly arguable that one may disregard[106], again with respect, the later more stringent statements[107] of the rule in Riley by Deane, J. in that they appear to depend substantially on the terms of the statute as it then stood and on the reasoning of O'Dalaigh, C.J. in Kelly.[108] The latter case must be seen as arising out of the interpretation of that part of the Irish statute[109] giving effect to the peculiar warrant-backing scheme in operation only between the United Kingdom and Ireland, under which the relevant test was set out in a section which denied power to make a backing order if "the offence specified in the warrant does not correspond with" any Irish offence.[110] Moreover, O'Dalaigh, C.J.'s approach was itself considered too restrictive in several judgments of the Irish Supreme Court[111] so that "it seems tolerably clear that [it] does not represent current Irish law", as was recently stated and explained by Lord Steyn (with whom the rest of their Lordships agreed) in R. v. Governor of Belmarsh Prison ex parte Gilligan.[112]

[153]

Although the broad principle of double criminality is relevant to an understanding of the provisions in that respect now contained in s.19 of the 1988 Act, I do not see it as being useful to examine all the other case law relating to those provisions seeking to import that principle into the two 1966 Acts or into earlier legislation, primarily because the language employed at various times in those Acts was sufficiently different from the present (as was the structure of each Act) for the exercise to be largely unproductive. I therefore do not think it necessary to examine cases such as Linhart v. Elms[114] and Wiest[115]. It is sufficient to note that the quotation treating "the acts or omissions" as equivalent to the elements of an offence, set out in para.[85] above, cited in Zoeller (No. 2)[116], was derived from an almost identical statement in the judgment of Gummow, J. in Wiest[117], which was not a judgment on the meaning of the present Act but on the meaning of the Extradition (Foreign States) Act 1966. As authority for the proposition Gummow, J. in turn referred to five earlier judgments, including Riley: see R. v. Hull (No. 2)[118]; Connolly v. Meagher[119]; Riley[120]; Linhart[121]; and Grace Bros Pty. Ltd. v. Magistrates of the Local Courts (N.S.W.)[122]. The first two of those cases raised questions of autrefois which necessarily involves careful consideration of the elements of specific criminal counts, to be satisfied according to the law of the jurisdiction in which the plea is made. Grace Bros involved a not dissimilar inquiry arising out of the potential inconsistency of prosecutions under State laws and the Trade Practices Act 1974 (Cth), again directed to the avoidance of possible double prosecutions.[123] The passage cited from Linhart related to the meaning of the expression "equivalent act or omission" in s.4(1A) of the Extradition (Foreign States) Act 1966, in a later form from that discussed in Riley but nevertheless not directly analogous. In short then, the passage in Wiest itself related to the meaning of sub-subpara. (C) of s.17(6)(a)(i) of that Act relating to the requirement in that legislation for a duly authenticated statement setting out the acts and omissions in respect of which surrender was requested. That has a resemblance to the requirement of s.19(3)(c)(ii) of the present Act except that it now refers to "conduct constituting the offence". The comment was, nevertheless, made in relation to the Extradition (Foreign Relations) Act as it then stood[124], so that the subsequent discussions of those reasons in the context of the 1988 Act must themselves first be examined and cannot be ignored.

[165]

In De Bruyn the Full Federal Court[145] returned[146] to the requirements of s.19 in a case where only a draft indictment was (successfully) relied upon as the necessary statement, with no additional statement setting out the conduct constituting the offences. The majority[147], citing passages from Zoeller (No. 2) and Holt, stated[148] that the production of a statement setting out the relevant conduct was "an essential step in the extradition process". They also accepted that, although the expression "the conduct ... constituting the offence" might be "ambiguous"[149], it should be taken not to be limited to merely the definition of the offence but to comprehend "the acts or omissions of the person sought to be extradited by virtue of which the offence is alleged to have been committed". More importantly, they also rejected[150] a contention that the acts or omissions in question should be confined to what were essential elements of the foreign offence, and they did not accept a construction which resulted in "the exclusion of acts or omissions which are not instrumental to the commission of the offence".[151] In this they accepted the approach in Zoeller (No. 2), reiterating[152] that "the magistrate is not an expert in foreign law, and cannot be expected to determine the minimum facts necessary to constitute the foreign crime". However, after stating that Zoeller (No. 2) supported the view that the magistrate might have regard to all of the facts, beyond the minimum necessary to constitute the foreign offence, in order to determine whether those facts would constitute the local offence, they conceded[153] that that approach had been criticised by Aughterson also in The Laws of Australia[154], but that the resolution of the debate would not assist in the resolution of the appeal. After repeating the passage from Wiest relating to the elements or ingredients of the offence, the majority continued[155] that, although that was accepted in Zoeller (No. 2), "it was made clear (at 297) that what is required is a statement of what is alleged to have been actually done or omitted, not a mere restatement of the charge in respect to which extradition is sought".

[175]

It is necessary now to reach conclusions as to the proper meaning of s.42 for the purposes of this application. The analysis of the expression "conduct constituting [the] offence" made by the Federal Court for the purposes of s.22 and especially s.19 of the Act has emphasised the need to take a practical approach to the language adopted. For obvious reasons that has been done in a context where the analysis has concentrated on issues relating to extradition from Australia, in particular in applying the legislative version of the double criminality rule. There are, however, aspects to the use of the expression in s.42 which do not arise when considering s.19. In the first place, s.19 is directed to the question whether the "surrender offence" has been established by reference to elements of the equivalent offence in an Australian jurisdiction. Sections such as s.42, embodying a particular version of the speciality rule, raise at least two questions as to the equivalence of relevant conduct, one, whether the charge is in fact that for which the accused was surrendered by a foreign country and, two, if not, whether it satisfies the description of being "any other offence" of which the accused could be convicted on proof of the relevant conduct. The other significant difference is that s.11 is more likely to be called in aid in relation to the "conduct" requirements of s.42 than of s.19, in that particular treaty provisions adopted by regulation as to the speciality rule may not infrequently be inconsistent with the language of s.42 and the regulations may then qualify it in the manner laid down in s.11. If the treaty contains some restriction on the speciality rule as stated in s.42, then it seems to be accepted that the narrower provision in the treaty as applied by the regulations will apply to a trial in Australia of a person extradited pursuant to the treaty in question. In particular, if there is no "other conduct" provision in the treaty, then the older, more limited speciality rule will apply in the form laid down in the treaty.[174] In that respect, at the least, there is no uniform speciality rule applicable to the prosecution of persons extradited to Australia.

[188]

It should be remembered again that sections such as s.42 must be construed in the light of the complex and varied procedure for extradition between Australia and the rest of the world. The system must make allowances not only for requests for the surrender of persons to Australia, but also for the manner in which requests by Australia are dealt with before surrender in a variety of foreign jurisdictions. Although the present case may not pose the problems which could be experienced in other cases, many requests by this country will be dealt with by courts and tribunals which have little or no familiarity with our law and many will have little or no familiarity with the common law, such that criminal concepts will be expressed in very different terms, whatever their essential purport might be. The application of the double criminality rule, whether here, in England, in the U.S.A. or in many other countries, is such as to require concentration on whether the factual basis behind a request for extradition satisfies local tests as to what amount to offences in the particular jurisdiction to which the request is directed. There cannot be expected to be precise coincidence as to liability, as so many of the reported cases demonstrate, so that one must look at the process which leads to the issuing of a surrender warrant in broad rather than narrow legalistic terms. State v. Kelly is just one example, in a kind of extradition (warrant-backing) between two common law jurisdictions, where conceptual changes to the definitions of crimes can give rise to great difficulty unless one takes such a broad approach. That does not mean that a country to which a surrender has been made can disregard the effect of what has been determined in the foreign jurisdiction so as to charge an accused with some unrelated offence once he has been brought back within the jurisdiction; rather it requires one to concentrate on the essential nature of the offences in question instead of the specific conclusionary facts which form what we call the constituent elements of each charge. The speciality rule, as presently expressed, is simply designed to protect persons extradited from the unfair use of the procedure, but it is likewise intended to overcome the practical difficulties which may arise when converting criminal concepts from one legal system to the other. Having regard to the use of s.10(2), as a common interpretation provision, it would seem highly unlikely that the conduct constituting the relevant offence should be confined to the constituent elements of an offence (in whatever jurisdiction), so that the section should be seen as referring to the acts and omissions which form the factual basis for the allegation that the offence has been committed.

[189]

If one has regard, then, to the potential difficulties in interpreting statutory or treaty expressions embodying the speciality principle, it is remarkable how little reported authority there is as to the meaning of such speciality provisions in England and Australia.[181] As I have already pointed out there has been no analysis of s.42, as such, except to the extent it was referred to in AB, and there was very little analysis of the former provisions: see Boog and Wong v. Evans[182]. Even then, at the relevant time (Wong v. Evans was decided on the legislation before the 1985 amendments came into effect), the enquiry as to the primary offence was one as to "the offence to which the requisition for his surrender relates"[183], which made clear that the offence was the Australian offence described in the Australian government's requisition to the requested country. Further, as will have been seen, the variety of language adopted in English legislation makes it hard to apply any of the authorities which have considered what were effectively the equivalents of the first and second clauses of s.42(a)(i), such as Corrigan and R. v. Davies[184], for they depended on differently expressed legislation or treaties. It so turns out that ss.18 and 19 of the 1989 U.K. Act employ very similar language to the Australian statute, namely, "the offence in respect of which he was returned", but to my knowledge they have not been the subject of any judicial observation. Davies should be dealt with since the applicant placed some reliance upon what was said in that case. That was decided under the United States of America (Extradition) Order 1976[185] which effectively incorporated the Anglo-United States Extradition Treaty 1972, but the particular article relied upon, Article XII, need not be examined in detail because it precluded prosecution "for any offence other than an extraditable offence ...". The added charge of fraudulent trading under the Companies Act 1948 (U.K.) was not such an offence in that it was not one included in the relevant schedule to the treaty as amended and so not an "extraditable offence" as defined by Article III. It was thus simply not an offence which could be charged against a person who had been extradited pursuant to the Order and the treaty, howsoever otherwise they might have been analysed.[186] United States decisions are likewise of little assistance in this regard having regard to the fact that they either depend upon the implied rule laid down in Rauscher or depend upon the interpretation of a particular treaty. However, I shall return to some of those cases briefly below.

[194]

It would follow that, for the purposes of seeing whether another offence comes within the second clause of s.42(a)(i), one may look at the totality of the alleged acts and omissions relied upon by the Australian government to support its request for surrender and which one may assume has been provided to satisfy the requested country that the offence satisfies the relevant tests to justify extradition. Sometimes the necessary factual statement will be limited to the bare essentials or the legal particulars of the case and sometimes it will be necessary to set out the basis of a circumstantial case (as was here the case), but in any case the stated acts and omissions may possibly support more than one offence. Here in fact the same narrative was the basis of the request for some eight offences, and in the end it was thought sufficient to support the four charges in the surrender warrant. It is not difficult, though it may be tedious, to work out which acts or omissions supported each of those four charges, indeed the original eight charges, but the purpose of the second clause in the sub-paragraph, in my opinion, is to give Australia as the requesting country greater flexibility in laying appropriate charges after surrender has taken place. That flexibility is appropriate, as many of the American cases have demonstrated, because the lack of precise coincidence between the legal elements of Australian and overseas offences is likely to lead to surrender warrants which, by definition (at least in this country and most other countries with whom conventional treaty arrangements have been entered into), will have the offences expressed in terms of the surrendering country's law, not in terms of the law of the requesting country. Thus in the present case the eight offences in the Australian government's request were expressed in terms of Australian and Victorian law, whereas the four offences identified in the surrender warrant were expressed in terms of English law. In many cases, however, especially where the law of the requested country is not based on the common law, the task of identifying the offences in respect of which surrender has been made will not always be straightforward. That is why the relevant sections referring to conduct must concentrate on the acts and omissions by virtue which Australia as the requesting country alleges that the specified Australian offences have been committed.

[199]

seem to have had consistent recent judicial acceptance. Accepting that explicit treaty provisions often have dictated different and not infrequently narrower conclusions, nevertheless it can be seen from just a few of the more recent cases that there are two significant elements in particular of the U.S. rule, one not mentioned so far in this country but pointing to a wider view, and the other consistent with the need to look to the factual basis of the requesting country's case. In U.S. v. Saccoccia[198] it was said that "the inquiry into specialty boils down to whether ... the surrendering state would deem conduct for which the requesting state actually prosecutes the defendant as interconnected with, as opposed to independent from, the acts for which he was extradited". An inquiry into what a country "would" think may seem surprising, but it seems prompted by two factors, one that for various reasons a relevant consent has not been or cannot be obtained and secondly, it makes due allowance for the nature of any speciality undertaking given, which not infrequently, as in the present case, might be said to contain a less stringent requirement as to prosecution than otherwise would apply. Secondly, in U.S. v. Sensi[199] the Court said: "What the doctrine of specialty requires is that the prosecution be `based on the same facts as those set forth in the request for extradition'."[200] Each of these cases was cited with approval and applied in U.S. v. Tse[201] where the Federal Court had to apply the speciality rule in circumstances where there was a treaty between the United States and Hong Kong, which used identical words to those appearing in s.6(4) of the U.K. Act. It was held that, although the Hong Kong authorities had chosen to extradite the appellant solely on a count of conspiracy to murder[202], the prosecution in the United States then charged the appellant with a further count of attempted murder on which he was also convicted. A ground of appeal alleging the unlawful prosecution on the latter count in breach of the speciality rule was rejected by the Court in that the offence was established "by the facts in respect of which his extradition had been granted".[203]

[205]

The second principal argument raised on behalf of the applicant was that the word "offence" should be read as if it "refers to an offence with specific elements" and that the Act, in particular the speciality provisions, refers to "conduct" and "acts or omissions" upon the basis that those expressions describe only the constituent elements of the relevant offences. I have already explained why I consider the expression "conduct constituting any such offence", as explained in s.10(2), should not be read so narrowly. If I be correct in my interpretation of the first clause of s.42(a)(i), the offence "in respect of which" a person is surrendered will necessarily be the offence identified in the request and thus will be an offence according to a jurisdiction in Australia as the requesting country. Even if one confined one's consideration to that offence, the second clause would, as I have said, have very little operation except for lesser true alternatives to such primary "offences", if the courts were obliged to look only to constituent elements. But the object of the scheme of the Act is to facilitate extradition and the carrying out of Australian extradition treaty obligations[207], so that is doubtless why s.10(2) makes clear that the relevant conduct consists of acts or omissions by virtue of which the offence is alleged to have been committed. Those allegations, for the purposes of the extradition process and in order to secure surrender, must be expressed in terms which are capable of satisfying a court or tribunal in another country that the "conduct" would be sufficient to prove the equivalent offence in that jurisdiction. I have already given examples where constituent elements vary now even in common law countries, but the scheme is intended to operate in relation to all countries with which Australia has extradition arrangements and many of them will almost invariably have offences of a like kind, but which are described in different terms and in which proof of different matters will be required. It is to overcome that difficulty that the acts or omissions are required to be stated in the material supporting a request to an overseas extradition country. The requirement also emphasises the likelihood, or at least the potentiality, that the double criminality rule will be applied in a way which may not result in particular offences being included in a surrender warrant, albeit that the facts would justify prosecution in this country. This broad approach to the expression "conduct constituting any such offence" must look to facts beyond the bare conclusions frequently forming the legal constituent elements of common law crimes[208] such as the ones which were made the subject of the extradition request in this case. The argument should therefore be rejected.

[207]

In consequence, I do not believe that the analysis of the various charges attempted by counsel is apposite to a determination of what offences may or may not be brought by virtue of the provisions of s.42. One may take an example, however, to show how artificial the exercise appears to be. It was said that at the trial the jury were directed that it was sufficient that they find beyond reasonable doubt, in addition to the fact that the victim was murdered, only that the applicant, being a party to the kidnapping of the victim, "knew or was aware that a realistic possible consequence of such was that the victim would be murdered". But it was said that, if the offence of conspiracy to murder had been charged, the jury would have had to be satisfied not only that an agreement had been reached with the other parties, but also that those parties had agreed that the course of conduct to be pursued by them would involve the commission of the murder and that the applicant and the other parties "each intended that the murder of Le Anh Tuan be committed". But the jury had been directed that in the circumstances of the case they need not find that the applicant intended to kill or intended that the victim be killed. From this it was argued that the relevant intent was different for the offences of conspiracy to murder and murder, effectively because a lesser intent was required to prove the murder charge, one based only on knowledge that murder was a realistic possible consequence. Little was said as to the element of complicity, although the jury were directed on the subject. Such contentions, however, seem to me to be highly artificial. On the murder charge the jury had to be satisfied that the applicant was complicit in the killing, for he was not the perpetrator[209], but such complicity, if directed towards the ultimate killing of the victim, must have consisted of the same agreement as would have supported the conspiracy charge, one which is conventionally treated as a lesser charge, though the penalty is the same, because it does not require proof of the actual murder. This case was one where the murder had been committed and indeed the conspiracy could only be proved satisfactorily in all the circumstances by inference based, at least in part, on the fact of the murder and the relationship of the applicant to those who participated in its perpetration. It seems to me to be an inversion of what is required by s.42 to treat the charge in fact brought and the charge the subject of surrender as significantly different merely because the intent required at the actual trial was a lesser intent than that which otherwise would have been required for a conspiracy count.

At a glance

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Judgment (358 paragraphs)

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Legislation Cited (4)