R v Hong Phuc Truong [2002] VSCA 27

P.A. Coghlan, Q.C., Director of Public Prosecutions,

2. I have had the considerable advantage of reading the reasons for judgment of Ormiston, J.A. I agree with his Honour, and for the reasons which he gives, that the Crown was entitled - consistently with s.42 (a)(i) of the Extradition Act 1988 (Cth) - to present the applicant for trial, and to try him, upon the offences of which he has been convicted; namely the offences of kidnap and murder. Accordingly, I agree that the application should be dismissed.

7. This application for leave to appeal against convictions for counts of kidnapping[1] and murder in the Supreme Court is most unusual, in that no ground relied upon in argument sought to assert any error in the conduct of the trial, but raised for the first time were grounds, added over a year later and just before the hearing of the application[2], that the convictions were either unlawful or nullities or they amounted to a substantial miscarriage of justice because of a failure by the prosecution to comply with the requirements of the Extradition Act 1988 (Cth) ("the Act") and in particular s.42 of that Act embodying[3]

what has come to be called the principle or rule of speciality.[4] Whether or not at other times and in other jurisdictions the right to complain of a breach has been confined to the country which has surrendered the subject person, it was contended that the statutory provision makes mandatory the principle in this country so as to give rise to a right or a privilege in that person to object to a trial for any offence other than the ones

contemplated by s.42, with the consequence that the trial should be treated as a nullity or at least the verdicts should be set aside as of right whether or not the issue was raised before the trial judge.

13. In the present case the applicant was extradited by the United Kingdom on charges of conspiracy to kidnap and conspiracy to murder, notwithstanding that substantive charges of kidnapping and murder were also the subject of the Australian Government's request to the Secretary of State for Home Affairs for the purpose of obtaining the applicant's surrender for trial in this country. He was tried and convicted on the substantive charges, being sentenced to be imprisoned for life on the count of murder and for 15 years on the count of kidnapping, the judge fixing a period of 23 years 8 months before he will become eligible for parole.[5] It was not contended on behalf of the respondent that the applicant was tried in respect of the precise offences in respect of which he was surrendered; but it was argued on the Crown's behalf that he was charged with and convicted in each case of "[an]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".[6]

18. 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.

22. It is desirable here to summarise the facts alleged for the purposes both of the extradition proceedings and of the trial. Unfortunately it will be necessary to return to them in greater detail in due course in order to see how the case was put by the prosecution at both stages of the proceedings and what conclusions the examining magistrate reached and what conclusions one may fairly infer that the jury reached in coming to their verdicts, for the differences between them are said to be critical to the applicant's contentions. To a degree and for ease of reading some of the allegations now described are matters which could only be the subject of inference, albeit that on each occasion the prosecution invited those inferences to be drawn from stated evidentiary materials.

25. 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.

28. While this persuasion continued, Mrs Van rented a house at Glendale Road, Springvale for reasons said to be connected with the kidnapping. At about the same time, in mid-April 1996 two brothers born in Vietnam but living in the United States, named Bui Tai Huu and Bui Quang Thuan, flew into Sydney allegedly for the purpose of participating in the kidnapping. Mrs Van is also said to have used the $20,000 to buy a green Toyota Vienta, likewise said to have been used for the kidnapping. Later that month one Le Thanh Long, a driver also alleged to be involved in the kidnapping, collected the two brothers Bui and brought them to Melbourne in that car.

31. The applicant and his colleagues continued to try to persuade Mrs Ha but without success. Then, on 29 April 1996, her son Le Anh Tuan, was assaulted both inside and outside his home in Regal Court, Glen Waverley and kidnapped by two large men of Asian appearance said to be the Bui brothers, and he was thrown into the boot of the green Toyota said to be driven by Le Thanh Long. A ransom note was found inside the house in Vietnamese which appeared to come from Mrs Ha's son stating that he had "gone with the guys from brother Phuc's company" and that his mother had "72 hours to pay the money".

34. Each day thereafter it is said that the applicant continued to make threats to Mrs Ha but reassured her that he would be able to help her with her son if she paid the $400,000. Eventually by 3 or 4 May a ransom drop-off was arranged by her to take place at the bus depot at Spencer Street Railway Station. On 4 May 1996 four ransom collectors in fact came to Spencer Street Station and, although it was intended merely to follow them after the hand-over of the money, it became apparent that they realised that the police were observing them, so that it was necessary to arrest the four men immediately. During this time it is alleged that Mrs Ha's son Le Anh was being held at the Glendale Road house, the Bui brothers being seen in the vicinity and one of them dropping his passport in the street between 2 and 4 May.[8]

37. Eventually, on 7 June 1996, Le Anh's body was discovered in an aqueduct in the Mile Creek drain not far from Glendale Road. A post-mortem examination revealed the cause of death to be a single gunshot wound to the head. The prosecution alleged that the Bui brothers, at the instigation of the applicant, were responsible for the death of Le Anh and that it is likely that that death occurred on or shortly after 3 May 1996, as within days the Bui brothers and Le Thanh Long flew out of Australia. At all relevant times the applicant, after his meeting Mrs Ha, remained in Hong Kong before eventually returning to London.

42. Regrettably, therefore, it will be necessary to spend a considerable time examining the bases upon which the Bow Street magistrate determined to give his certificate pursuant to s.9(9) of the Extradition Act 1989 (U.K.) and upon which the prosecution sought at the trial in this State to secure convictions for the substantive offences. Some other facts must first be briefly described. The applicant, although born in Vietnam in 1959, was a resident in the United Kingdom at the time of his arrest. Although he visited Australia, so it was alleged, for a short time not long before the kidnapping and murder were committed, he was in Hong Kong at the relevant time.

45. After the death of Le Anh Tuan and the discovery of his body on 7 June an elaborate investigation took place which led to the bringing and filing of eight charges against the applicant and a number of other alleged participants in the offences, which included charges of murder and kidnapping, of conspiracy to murder and conspiracy to kidnap, as well as blackmail and making a demand with a threat to kill of Mrs Ha, and additionally two charges relating to the importation of heroin into Australia contrary to the Customs Act 1901 (Cth). After an extradition brief was forwarded to the Commonwealth Attorney-General seeking the extradition of the applicant, a request by Australia for his surrender for all eight offences was made pursuant to s.40 of the Act under authority of the Commonwealth Attorney-General to the Secretary for State for Home Affairs of the United Kingdom in late September 1997.[9]

48. That request was received pursuant to s.7 of the U.K. Act which led to the Secretary of State on 2 October 1997 issuing an authority to proceed pursuant to sub-s.(4) of that section directed to the Chief Metropolitan Stipendiary Magistrate sitting at Bow Street, which described the subject matter of the inquiry as being "conduct in the jurisdiction of the Government of Australia which appears to the Secretary of State to be conduct which, had it occurred in the United Kingdom, would have constituted offences of murder, false imprisonment, conspiracy to commit murder, conspiracy to commit blackmail, kidnap, conspiracy to kidnap, threats to kill, conspiracy to be knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, namely heroin". On the same day the Secretary of State also granted a certificate pursuant to s.6(7) of the U.K. Act (commonly known as a certificate of speciality) whereby he stated that "an arrangement as mentioned in s.6(4) of the Act" had been made with the Government of Australia substantially in the following terms:

"In submitting this request for the extradition of Hong Phuc Trung ... the Government of Australia states that the accused, unless he has first had an opportunity to leave Australia, will not be dealt with in Australia for and in respect of any offence committed before his return under the Extradition Act 1989, other than: (a) the offences in respect of which his return under the Act is ordered; (b) an offence, other than an offence in relation to which an order for his return could not lawfully be made[10], which is disclosed by the facts in respect of which his return was ordered; or (c) any other offence being an extradition crime in respect of which the Secretary of State of the United Kingdom may consent to his being dealt with." (Emphasis added.)

It will be noted that, although the Government of Australia is stated to have agreed that the applicant should not be dealt with in the stated way, that agreement was not expressed in terms of s.42 of the Australian Act, but in terms of sub-s.(4) of s.6 of the U.K. Act, the words italicised in (b) being somewhat differently expressed from the equivalent provision in paragraph (a) of s.42(1) of the Australian Act.

53. Evidence as to what precisely occurred during the committal proceedings at Bow Street Magistrates' Court has not been easy to gather and attempts made to get further information from the relevant officers at the Home Office were largely unsuccessful, primarily because of the time which had gone by and an inability now to remember some of the details with which the Court is concerned. Mr Nicholas Evans, a Metropolitan Magistrate at the time, conducted the proceedings but when they commenced is not entirely clear. An opening note of the case on behalf of the Australian Government was signed by counsel and dated 28 May 1998, from which it might be inferred that the hearing itself commenced a few days later. It was estimated that the prosecution case would take only about two days, but one gathers that the matter started and stopped over several weeks and the magistrate did not deliver his reasons and make his finding until 30 September that year. It appears that there were ten bundles of evidence running to many thousands of pages, at all of which the magistrate said it was not necessary to look. Among the affidavits in support was what is called an Affidavit of Laws sworn by a member of the Office of Public Prosecutions in this State setting out the various offences and the prescribed maximum penalties, provided among other materials to ensure, as I would understand it, that the principle of double criminality was observed and that the prisoner was not committed for offences outside the scope of the extradition laws.

56. In addition there was a far more detailed affidavit by Detective Senior Constable Tragardh extending for some 70 pages which included the factual basis for the Australian Government's case set out with admirable clarity, together with detailed cross-references to the statements and other exhibits upon which it was based. It also set out a list of the pending charges in Australia against the applicant and also against Ly Quoc Chuong, his brother-in-law, who was also a resident of the United Kingdom and against whom one gathers separate extradition proceedings were brought. The magistrate was also provided with schedules of witnesses, skeleton arguments on both sides and a list of five draft charges, to which I shall return. In the course of his reasons the magistrate noted that his duty under s.9 of the U.K. Act was to determine whether the offences in question were extradition crimes and whether he was satisfied "that the evidence would be sufficient to make a case requiring an answer ... if the proceedings were the summary trial of an information ...".[11]

59. Unfortunately it is necessary to examine, so far as is practical, the course of those proceedings for at least one principal reason. Undoubtedly the list of charges referred to in Detective Senior Constable Tragardh's affidavit, as well as the authority to proceed to which I have referred, listed substantive charges of both murder and kidnapping. At the end of the day, as will be seen, the dual criminality certificate dated 1 October 1998 had attached to it, for some unexplained reason, a schedule of only four charges, including conspiracy to murder, conspiracy to kidnap, conspiracy to blackmail and conspiracy "to be knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug namely heroin", but described no other offences. The list of charges in the schedule had almost certainly been prepared by counsel for the Commonwealth, as it was originally headed "draft charges", but somebody, presumably the magistrate, had crossed out the word "draft" and there was a fifth charge on the sheet, being a charge of making an unwarranted demand with a view to gain, which was deleted as having been "discharged", to which the magistrate specifically referred in his reasons.

62. It is necessary therefore, to go in the first place to counsel's "opening note" to ascertain, as best one can, how the case was originally put to the magistrate. Counsel introduced his note in the following unexplained way. He said that the applicant was "wanted by the Government of Australia for murder, kidnapping, conspiracy to commit murder, conspiracy to kidnap, blackmail, extortion with threat to kill, conspiracy to import a prohibited drug namely heroin, and knowing involvement in the importation of heroin." It noted his arrest in August 1997. The charges there listed included all original eight charges expressed in terms of Victorian or Australian law. Nevertheless, after referring to the arrest and the authority to proceed, he stated then that "the draft charges upon which his extradition is sought are set out below". There then followed only the five charges which were the subject of the "draft charges", to which I have referred, and expressed in terms of offences against English law, including the charges of conspiracy to murder and conspiracy to kidnap. Whether counsel had determined to abandon the substantive charges is by no means clear, for in then setting out an "overview of the facts", he stated inter alia: "The murder charges[12] relate to the kidnapping and murder of Le Anh Tuan, aged 21, who was kidnapped from his home on April 29, 1996 ...". He described the fact that Le Anh was assaulted and forced into the boot of the Toyota car and then set out the substance of the note which had been left for his mother, as set out above. He then stated that the body had been found by a school boy in June 1996 and that he had been killed by a single gunshot to the head. His brief summary continued by referring to the following facts:

"Mrs Ha ... stated that her son introduced her to a Mrs Van who asked her if she wanted to get involved in drug dealing ... Mrs Van was Phuc's mother. Phuc asked her to import drugs. She states she refused to do business with him and he demanded $400,000 Australian because she knew of his drug business ... He continued to demand money and threatened her family if she didn't pay ... Mrs Van met her at a hotel and gave her a note concerning the money Phuc was demanding. Mrs Van and her husband began visiting her son Le's house about two weeks before the kidnapping and asking a lot of questions. Mrs Van told her after the kidnapping that Le Anh was still alive and well and that he would be home in three or four days ... Mrs Ha spoke with Phuc after Le Anh was kidnapped. The conversation was as follows: `Why did you take Anh, how is my son?' He said: `Look I have told you already I can do whatever I want. When you have the money prepared ring me'."

The summary then continued by describing the heroin charges, which need not be examined further, except that they contained a reference to another threat by the applicant to a person in Sydney, in which it was alleged that the applicant said: "The woman down there has resisted our proposals and instructions so she had to collect all the bad results of consequences" (sic).

67. Before turning to the factual basis upon which extradition was sought, as revealed in Detective Senior Constable Tragardh's affidavit, I shall first deal with the reasons which the magistrate gave for ultimately committing the applicant to custody. The magistrate noted that he had adjourned the proceedings to allow the defence to call alibi evidence but, although identification of the applicant was a critical matter, no such evidence was called. The magistrate then said:

"It is conceded by the defence that there is prima facie evidence that Le Anh Tuan was kidnapped and murdered, that Ha Mai was blackmailed and that heroin was imported. The only factual issue that I have to decide is whether the man in the dock is adequately identified as being the person called `Phuc' in the evidence. If he is so identified then he will have ... a case to answer, as there is the clearest evidence that `Phuc' was a conspirator in each of the conspiracies."

One might comment that there seemed not the slightest doubt that there was evidence of kidnapping and murder and that likewise the magistrate thought that there was "the clearest evidence" of the applicant's participation in the conspiracies, but, whatever be the persuasiveness of the material, the issue at that stage was being put only in terms of the relevant conspiracies, although logically they might have led to an inference of complicity in the substantive offences. There is a possible clue to a perceived difficulty when the magistrate turned, after dealing with an issue of formal authentication of evidence which he resolved firmly in favour of the Commonwealth, to "territorial jurisdiction" about which he said:

"This submission was advanced on the incorrect basis that the government was seeking to establish extraterritorial offences within the meaning of s.2(1)(b) of the 1989 Act. That is not the position. If it had been, the authority to proceed would not have needed to have so stated. What is required is for the government to satisfy me that the alleged offences are extradition crimes within the meaning of s.2(1)(a). Mr Wood [counsel at that time for the applicant] invited me to consider the terms of the Australian criminal law and in particular s.321 of the Crimes Act 1958 (Victoria) ... It is not for me to try to interpret the effect of foreign law. Should that ever be necessary it would require me to receive evidence from an expert on that law. All the overt acts in each of the conspiracies were committed in Australia. There is evidence that `Phuc' was at various times during the period of the conspiracies both in Australia and also outside Australia ...".

He then referred to evidence of Mrs Ha to the effect that, when the first threat was made, the applicant told her that he was staying at Mrs Van's house in Melbourne, and that thereafter the applicant had called her from Hong Kong demanding the ransom of $400,000. The magistrate continued:

"The evidence shows that whichever jurisdiction `Phuc' was in he continued to play an active part in each of these conspiracies."

He concluded that he was satisfied that each of the conspiracies was an extradition crime. Finally, he came to the question of identification, which he dealt with by saying that, having considered the photographs and other evidence, and noting that no alibi evidence that he was in London at the time was in fact called, he had concluded:

"I am satisfied on the totality of all the evidence put before me that Mr Truong [the applicant] does have a case to answer on each of the conspiracy allegations."

The Metropolitan Magistrate therefore stated that he proposed committing the applicant under section paragraph 9(8) of the U.K. Extradition Act "to await the decision of the Secretary of State as to his return to Australia". This last observation was a reference by the magistrate to the fact that, having committed a person the subject of an extradition application to custody under s.9(8), the final stage of return under warrant to Australia devolved under the U.K. Act upon the Secretary of State pursuant to s.12(1), which stated:

"Where a person is committed under s.9 above and is not discharged by order of the High Court ..., the Secretary of State may by warrant order him to be returned unless his return is prohibited ... by this Act, or the Secretary of State decides under this section to make no order in his case."

80. Because it is contended that the relevant basis for determining the conduct constituting the offences in this case should be construed as comprehending "the acts or omissions, or both, by virtue of which [those offences, in respect of which his return to Australia was ordered were] alleged to have been committed", or alternatively the "facts" "disclosed" for that purpose, conformably with the certificate of speciality given pursuant to the U.K. Act, one must examine those "acts or omissions" or "facts", which were alleged in the proceeding before the Metropolitan Magistrate. I shall do my best to summarise that material but, regrettably, it will be necessary to compare it, insofar as there were any differences, with the evidence which was relied upon in order to make out at the trial the substantive counts upon which the applicant was convicted.

83. The 65-page description of the factual basis[13]

for the allegations began with an "overview" setting out substantially the matters already referred to above.[14]

A more detailed statement of the basis for those conclusions appeared thereafter, essentially in a chronological form. It began by describing the deceased's arrival with his mother Mrs Ha in Melbourne from Russia in July 1993. It was he who first met Mrs Van and her husband Ta Van Doanh. Mrs Van then met Mrs Ha who told her of her interest in a clothing business. Then in January 1996 the applicant, when in Hong Kong, approached an associate to obtain a mobile telephone. I shall not list the number of phones acquired in this way, either by the applicant or by those who were said to have been involved on his behalf in his drug dealing, and in the kidnapping and murder. It is sufficient to say that part of the prosecution case was that the applicant thereby acquired phones which were not directly traceable to him or his colleagues. Many hundreds of phone calls were traced in this way, but it was not subsequently possible to identify the persons who used the phones, although the time at which the calls were made and the length of the conversations were recorded and given in evidence. So there was evidence on 14 January 1996 that the phone acquired by the applicant was used to make a call to the phone owned by Mrs Van. Two days later her phone was used to call the applicant's telephone in London, registered in the name of H.P. Chuong, said to be one of the applicant's aliases. Later that day Mrs Van left Australia for Hong Kong. The applicant was in fact in Hong Kong when she arrived, together with one of the Bui brothers and one of the applicant's brothers-in-law, Ly Quoc Chuong. On 27 January Bui Tai Huu flew from Hong Kong to Melbourne and then to Sydney where there is evidence that he registered at a hotel in the name of Nguyen Michael, a name used fraudulently to obtain a U.S. passport.

90. By 8 February 1996 the applicant had likewise visited Australia from Hong Kong using a false United Kingdom passport in the name of Cheung Duc Minh. Largely from telephone calls it was sought to be shown that he stayed with his sister Mrs Van. Evidence was also given of his travelling to Sydney so as to arrange for some complex money transfers to Hong Kong and the United States amounting to some $364,000. Apart from bank records, statements from three persons involved in the transactions, Hoang Trong Tai, Nguyen Van Manh and Pham Thi Men, showed that the bank accounts in Hong Kong, though not in the applicant's name, were used by him and that the account in America was in the name of Bui Huu Thanh, an older brother of the Bui brothers. There was further evidence at this time relating to the transfer of money overseas by the applicant, including $10,000 to his mother in Vietnam.

93. On 16 March 1996 the applicant travelled to Melbourne, the journey being tracked by calls made from various places on the way on a mobile phone acquired by the applicant. That night, according to a statement by Mrs Ha, the applicant met her at the Regent Hotel where he was staying. Mrs Van had told her by phone from Vietnam that the purpose was to discuss a partnership in importing clothing, but the applicant made it clear that his interest was in the importation of heroin into Australia. He put a proposition that Mrs Ha could assist him by concealing it inside shipments of the clothing. She refused the offer but was told to think about it further. Phone conversations to like effect resulted in continued refusal by her, which was followed by a threat from the applicant as to bad "consequences for her family". On 19 March the applicant left Australia for Hong Kong, as traced on airport records. Mrs Ha told of further threats by telephone and a demand for the payment of $400,000. She was told to speak of the money as a debt owed to the applicant relating to clothing and shoes and it seems that this was the code that they thereafter used.

96. For some time Mrs Van had been in Vietnam but she returned to Australia on 23 March, according to Mrs Ha, for she immediately spoke to Mrs Ha about the applicant's demand. On 28 March the applicant sent a fax to the victim Le Anh's address setting out four Hong Kong bank accounts into each of which his mother was to deposit $100,000. They were the same as the bank accounts used by the applicant in making his earlier money transfers and the fax was sent from "Happy Excel International", a copy of the fax forming part of the evidence. The same day the alleged driver for the kidnapping, Le Thanh Long, returned to Melbourne from Saigon. On 3 April a package of heroin in a Buddha statue valued at $3m. was sent to an address in the Australian Capital Territory and was marked as having been sent by Happy Excel International Ltd. It was seized in a controlled delivery and two persons were arrested and charged, one of whom was convicted.

99. More phones were acquired by various acquaintances of the applicant for use by him and his colleagues. In particular, Pham Thi Minh Hanh, stated that on 7 April 1996 she acquired one in Hong Kong for the applicant which at no time was used by her but for which the applicant agreed to pay the bill. It was used to make a considerable number of calls from that date to 4 May 1996. For example, two days later the applicant is believed to have rung Mrs Van, according to telephone records. The following day, according to Mrs Ha, she received a letter left for her by Mrs Van. It complained that she had waited for Mrs Ha at the latter's home, because Mrs Ha had asked her to come to Mrs Ha's place in order to pick up money to give to the "other man", but Mrs Ha had failed to be present. She was asked: "What was the reason you [? not] answer to me immediately. I have wasted too much time". Mrs Van required an immediate answer and in fact later that day Le Anh paid $20,000 in cash to Mrs Van for which he was given a receipt. According to Mrs Ha this was to appease the applicant. Mrs Van later told her that it was not adequate. Later that day a call was recorded from the mobile phone number used by the applicant to Mrs Ha's telephone number.

102. There followed detailed evidence of the arrival of the Bui brothers in Australia. Bui Tai arrived from Hong Kong using an alias on 11 April 1996. About that time the applicant phoned Mrs Ha and referred to "a member of his company" who had come to collect the money from her. Mrs Ha said that she became increasingly concerned at this time, so that she decided to begin recording her conversations with the applicant. Two days later she received a call from Mrs Van about the money and thereafter there were a series of calls from one to the other, as well as a call from another person believed to be Bui Tai, all of which were recorded. The caller suggested Mrs Ha was delaying and she said she was having difficulty raising the money. The applicant told her that she had until the end of the week to pay, "otherwise the company will deal with the matter".

105. By this time it is believed, from call charge records, that Bui Tai was now living with Mrs Van in Clayton South. In particular, calls are recorded to California, Mrs Ha, the applicant and one of his associates in Hong Kong, and to the driver Le Thanh Long, or, more precisely, to the numbers used by them. On 13 April a daughter of Mrs Van, Ta Ngoc Mai, in company with two males of Asian appearance, purchased a mobile phone from Hutchison Telecom in Dandenong. It is this phone which is believed to be the one used thereafter by an unrecognised male to threaten Mrs Ha into paying the money. The following day there was another threatening phone call, which was followed by a call from Mrs Van to the applicant. Also at this time there was evidence about the renting of the house in Glendale Road, Springvale by Mrs Van from an estate agency in that suburb. The property manager alleged that she wanted to rent the house for her recently married daughter, but that daughter, Ta Ngoc Mai, was in fact divorced at the time. The former husband stated that Mrs Van told him that she intended to rent a house for his divorced wife and her two brothers, but sought his help by putting his name on the contract as he was in full employment. A bond and a month's rent were paid. Shortly afterwards a resident nearby saw three males of Asian appearance moving three mattresses into the premises. A series of phone calls recorded over the 16th to 19th April showed the applicant making frequent calls, especially to the Bui brothers both in Melbourne and Los Angeles and then to Mrs Van. Then on 19 April Mrs Van's son, Ta Quang Huy, is shown to have purchased a 1994 Toyota Vienta (or Camry as it was most frequently called) for $23,723 which was registered in his name. This car was noticed in the driveway of the house in Glendale Road by two residents of that street.

108. On 20 April 1996 the second Bui brother, Bui Quang Thuan, left Los Angeles International Airport with a friend after buying two cartons of Marlboro cigarettes with which they were given two promotional baseball caps, according to the salesman. The cap was of a kind which could only be obtained from duty free outlets at that airport and on the Canadian and Mexican borders between June 1995 and June 1996. Bui Quang first travelled to Hong Kong. Then on 23 April he arrived in Sydney, according to an incoming passenger card. Two days later Le Thanh Long drove Bui Tai to Sydney in the Toyota car but its registration number was noted when it was intercepted for a routine check on the Hume Highway. Again the next morning Le Thanh Long was pulled up for exceeding the speed limit at Marulan. Eventually they arrived at the Marco Polo Motor Inn at Summerhill where both Bui Tai and Le Thanh Long booked in, according to hotel records. There was evidence of observations of both the Bui brothers and the car in Sydney. However, on 27 April the car was seen driving out of the hotel and by 28 April Le Thanh Long was again phoning Bui Tai in Melbourne.

111. In the days leading up to the kidnapping Mrs Ha said that Mrs Van had asked Le Anh and his girlfriend to travel to Hong Kong for business, but Mrs Ha had told her son not to go there as she thought it was a trap. From time to time Mrs Van and sometimes her husband visited Mrs Ha, asking many questions about her son's house. Mrs Ha said that on one occasion a house key left in a rice container went missing and it was never found.

114. Then on 29 April 1996 Le Anh and his fiancée went to premises recently purchased for their occupation, but an electrician they were expecting did not arrive. Le Anh said he would return home to Regal Court, Glen Waverley to find the electrician's phone number. This was the last time Le Anh was seen alive by his fiancée. Then there are recorded a series of telephone calls from Bui Tai to Le Thanh Long broadly in the relevant area. One neighbour stated that he saw three Asian males running out of Regal Court, one of whom was about five metres in front of the others. At the same time a green car reversed into Regal Court. Two of the males caught the third and they all went behind the car, the boot was raised and then closed, leaving only two persons other than the driver. The neighbour wrote down the car's registration number which was identical to that of the Toyota bought by Mrs Van's son. Similar observations were made by another neighbour. She said the two Asians were quite tall and wore dark clothes. She saw the smaller man pushed into the boot. When the police arrived they found a jacket belonging to Le Anh near the car and also a black Marlboro baseball cap outside on the footpath. Inside the house they found the note in Vietnamese written by Le Anh on the kitchen table. It was translated:

"You call mother to tell her that I have gone with the guys from brother Phuc's company, the younger brother to Mrs Doanh[15]. Those guys said to give mother seventy-two hours to pay the money."

118. The prosecution case then stated a number of conclusions which might fairly be inferred from what had preceded. In substance it asserted that the Bui brothers had been dropped off in Regal Court by Le Thanh Long and had then entered Le Anh's house with the key taken by Mrs Van. Le Anh was attacked in his house which was ransacked by the Bui brothers. Le Thanh Long was then told to return to Regal Court while Le Anh was forced to write the ransom note. A fight took place on the way out with the cap being knocked from the head of one of the Bui brothers but Le Anh was eventually caught and forced into the boot of the Toyota. He was then driven to the house at Glendale Road, Springvale.

121. As a result Mrs Ha came into contact with the police at the Glen Waverley CIB for the first time and shortly afterwards she received a demand for a ransom. She spoke to the applicant by phone from the CIB. The applicant was recorded as stating: "You have three days to transfer the money to Hong Kong, if no money, everything happen to Anh." Mrs Ha was then told to telephone the applicant on her own phone and to record the conversations. When she asked the applicant about her son's welfare the applicant is said to have answered: "Look I have told you already I can do whatever I want. When you have the money prepared ring me."

124. Further evidence of these events was given by way of interviews with Mrs Van and her son Ta Quang Huy, but one may doubt whether their evidence was relevantly admissible, certainly as the prosecution appeared to rely primarily on inconsistencies in their stories. Inferences were also sought to be drawn from phone conversations made from public telephone boxes near to the Glendale Road house, which were said to have been made to the Bui brothers' girlfriends in Sydney.

127. Thereafter a judge of the Federal Court issued a warrant authorising telecommunication interceptions on a mobile phone given to Mrs Ha. On 1 May the applicant called Mrs Ha, who asked about her son, to which the applicant replied that she was to pay the money first and then he would help her. There was no direct discussion of her son. He alleged she owed him money and asked: "Are you going to pay me or not? You tell me. Do not discuss any other matter. Everything has its place." He asserted that she was playing games with the payment of the $400,000. He said that the day after tomorrow "I am not going to wait ... Then you better hurry up. That is all." When she spoke about her son the applicant simply said: "Why did you allow it to reach that stage?". There was further evidence of a phone call relating to the cleaning by a professional cleaner of the house in Glendale Road. On 2 May there were further calls from the applicant to Mrs Ha. He told her that he had given her enough time already and threatened that if he had not received the money that evening in full, "then from now on you no longer have to phone me any more", as there would be no use for the phone. Later Mrs Ha rang to say that she could not get the money until the next day. The applicant told her that this was her final chance and it had to be paid by 12 noon the following day. He required it to be delivered to Sydney for him. He said that she had brought all this on herself. Mrs Ha's attempts to speak about her son were met with the answer that she was not to mention the matter and that she had to sort out the matter of the money first. He said that, if he collected the money in full, "all matters shall be happy".

130. There followed a large number of other conversations from which it might be inferred that arrangements were being made to collect the ransom money from Mrs Ha. Detective Senior Constable Tragardh's affidavit then stated the belief that, as the payment deadline, which had been extended to 12 noon on 3 May, had expired and the ransom not paid, Le Anh was then "shot in the head, execution style" and dumped in Mile Creek Drain, Noble Park. The alleged kidnappers then arranged to leave Melbourne.

133. Essentially these conclusions as to the timing and causing of the shooting rested on circumstantial evidence. The applicant's threats and the precision of his demand, followed by the departure shortly afterwards of the Bui brothers and their driver and the later finding of the body, pointed strongly to these conclusions as to Le Anh's death, according to the prosecution case.[16] In particular, Bui Tai's mobile is recorded as making calls from Melbourne Airport at 2.35 and then at Sydney Airport at 6.15 p.m. on 3 May 1996 suggesting that he had left Melbourne. Then evidence from the Lansdowne Motor Inn on the outskirts of Sydney showed that the Bui brothers booked in at about 11 p.m. that night. At about this time Bui Quang's passport was found in Glendale Road, as mentioned above[17]

138. Nevertheless the applicant still demanded the money from Mrs Ha that same afternoon. By this stage Mrs Ha says that she had the necessary money and asked for instructions. She was told by the applicant to bring the money personally and it would be collected by a "black pawn", not aware of any other details. The applicant said he would not speak to her any more on the subject. In this respect he was true to his word, for it was his last phone conversation with Mrs Ha.

141. Less than half an hour later Mrs Ha rang the same phone number but it was answered by Ly Quoc Chuong, who said that the applicant did not have the time to speak to her. She was told that, if she wanted to pay, others would have to contact her. He refused to discuss her son, maintaining that he and his colleagues were not to be treated like children. Mrs Ha agreed to pay the ransom, so she was told that someone would contact her. She rang later to enquire about her son's condition, but spoke again to Ly Quoc, who accused her of not playing fair and saying that those who would collect the money had no idea of what was happening. Somebody was watching her every move. She must wait for a call, but if she played fair, she would not have to worry about anything.

144. The next day Ly Quoc arranged for one Ta Van Hung and two others to go to Melbourne, where they were met by Pham Tinh Xuan, according to statements made by each of them. Mrs Ha then received a series of phone calls from a person believed to be Ly Quoc. She was told to take the $400,000 to the bus stop at Spencer Street Railway Station, and to hand it over to an unnamed male person. Then, shortly afterwards, Ly Quoc rang again accusing her still of "playing games", saying that she was being watched and that she had wasted time on the phone, so that she was not to ring him again. He knew her every move and that people had been listening and keeping watch that morning. In fact, surveillance police were already in position and from this complaint or warning the magistrate was asked to infer that the four "money collectors" had seen the police and therefore knew Mrs Ha had already involved them.

147. Consequently the police thought it best not to await any hand-over of the ransom moneys and decided to arrest the four "collectors". Two were immediately arrested and the other two shortly afterwards in Spencer Street. From records of phone calls it may be inferred that news of the arrest was passed quickly to the applicant, who in turn rang the Bui brothers. A final call from Ly Quoc to Mrs Ha told her that, if she intended to pay the debt, she should use a public phone.

150. The Australian Government's case also included evidence as to what the four collectors had said on interview, although that could not be admissible at trial against the applicant. The same may also be said of the evidence that in custody one of the collectors attempted to swallow a piece of paper which had Ly Quoc's phone number on it and of further interviews with Mrs Van and her son.[18]

153. From airport records it appears that the driver Le Thanh Long left for Vietnam on 4 May 1996. On the same day the Royal Hong Kong Police carried out search raids at various addresses in Hong Kong, including that of Happy Excel International Ltd. At one address they found the original of the fax setting out the four bank accounts, a passbook in an alias name of the applicant, telephone bills for the "borrowed phone" and a book with the phone number of the Lansdowne Motor Inn. The affidavit asserts that no more phone calls were recorded from this phone number and both the applicant and Ly Quoc are believed to have left for the United Kingdom at about this time.

156. The following day the Toyota was found at Seaford, having been cleaned with an industrial strength cleaner. Ten days later Bui Tai flew to Vietnam. The same day Mrs Van contacted the estate agent for 24 Glendale Road and, upon paying an additional month's rent, it was agreed that the lease be determined. On 23 May Bui Thanh also flew to Vietnam, according to airport records.

159. Of course during this period Mrs Ha was unaware of what had happened to her son after his kidnapping. She therefore went to see Mrs Van, who told her that he was alive and well, and that she might let him go home in three or four days time, but that Mrs Ha could not "buy him back", whatever that might have meant. Later attempts to contact Mrs Van were rebuffed by her.

162. For some reason apparently not connected with the subject offences, the Bui brothers returned to Australia for a period of time on 2 June 1996, again staying at the Lansdowne Motor Inn. Their purpose was probably connected with the alleged importation of a large consignment of heroin, which, though relevant to the extradition proceedings, has relevance in only one respect to the counts the subject of this application.

165. For the rest there was considerable forensic evidence, though primarily connecting the Bui brothers and others to the kidnapping and murder, as it was alleged. That included evidence of searches of the car, of the house at Glendale Road and of various interviews. At the rented house a Melway's directory with Regal Court circled was found on the back verandah. One further fact may be said to be presently relevant. A witness, arrested in August 1996 because of his connection with the heroin importation, made a statement that the applicant had threatened him if he did not co-operate, by referring to a "woman down [in Melbourne who] has resisted our instructions so she had to collect all the bad results [in] consequence."

168. It may be seen, therefore, that the case against the applicant, especially that necessary to prove his connection with the kidnapping and murder and with the arrangements leading up to them, was essentially a circumstantial one.

172. Having committed the applicant to custody to await the Secretary of State's decision as to his return to Australia under paragraph 9(8) of the U.K. Act, the Metropolitan Magistrate then on 1 October 1998 issued, pursuant to s.9(9) of that Act, a certificate of the offences against the law of the United Kingdom "which would be constituted by his conduct". The certificate, commonly known as a "dual criminality certificate", stated that, having committed the applicant to custody to await the Secretary of State's decision, his Worship certified under the section "that the conduct alleged within the jurisdiction of the Government of Australia would amount to the following offences against the law of the United Kingdom". To that certificate he attached a schedule which set out four charges, in the form of the draft charges previously referred to (but deleting the charge numbered 3)[19]

, the first two of which were the only ones relevant to the present application and read as follows[20]

"1. That you between 16th March 1996 and 7th June 1996 conspired with Bui Tai Huu, Bui Quang Thuan, Le Thanh Long and others to murder Le Anh Tuan. 2. That you on or about 29th April 1996 conspired with Bui Tai Huu, Bui Quang Thuan, Le Thanh Long and others to kidnap Le Anh Tuan."

There was no further description of those offences in the certificate except that they were stated to have been committed "all within the jurisdiction of the government of Australia".

181. Some weeks later[21], on 16 November 1998 a warrant for the applicant's return to Australia was signed pursuant to s.12[22]

of the U.K. Act by Ms Kate Hoey, one of the Parliamentary Under Secretaries-of-State for the Home Office, in the form prescribed pursuant to s.28 of that Act.[23] The warrant, directed to the Governor of Brixton Prison and members of the Metropolitan Police Force, began by reciting the request from the Commonwealth of Australia for the return of the applicant "who is accused of offences of conspiracy to commit murder, conspiracy to kidnap, conspiracy to commit blackmail and conspiracy to be knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, namely heroin". It then recited that a Metropolitan Stipendiary Magistrate, being "satisfied that the evidence given before him would be sufficient to warrant the [applicant's] trial for these offences if they had been committed in the inner London area", had committed the applicant to await his return to Australia. Finally, having recited that there had been no High Court order discharging the applicant, it stated: "Now, therefore, it is hereby ordered that the [applicant] be returned to Australia in respect of the offences for which he was committed by the Metropolitan Stipendiary Magistrate." Except in the indirect way referred to in the warrant, there was no description of either the offences or the evidence in the warrant itself, and it is, as may be seen, necessary therefore to go to the other documents and materials to which I have earlier referred to ascertain the subject of the surrender.

187. In due course the applicant was brought to trial together with one co-accused, Mrs Van, who had been arrested in this State. Although there were a number of preliminary issues which had to be dealt with by the trial judge, it is unnecessary to examine those having regard to the single issue raised on this appeal.

190. What is important is the nature of the case made against the applicant and the extent to which it differed, if at all, from that made in the extradition proceedings. It is significant to note, however, how little the case differed from that which I have already summarised as forming the basis for the extradition proceedings, notwithstanding that the charges were technically different and that Mrs Van was now a co-defendant in respect of each of the substantive counts. The evidence outlined in the prosecutor's opening to the jury can hardly be said to differ at all, except in inessential matters, and the evidence in fact given at the trial was not significantly different, although it did cover matters raised by cross-examination on behalf of each of the accused. Even then, most of the detail was not challenged and there were only about four witnesses whose evidence was the subject of any extensive cross-examination.

193. I have attempted to compare in detail the matters raised by way of opening by the prosecutor with the evidence earlier summarised. In the result there seems to be only one fact which was not made before the magistrate at Bow Street, which was of any real significance. Among the materials found by the Royal Hong Kong Police in examining the premises of Happy Excel International Ltd. was the phone number of the Lansdowne Motor Inn, but it appeared from the opening and at the trial that that number included the room number of one of the Bui brothers, namely, room 128, which hotel records showed was the room in which Bui Quang stayed at the relevant time. A small additional piece of evidence opened and proved was that the house in Glendale Road was occupied by a series of persons, who ultimately gave evidence at the trial, although only for short periods before Mrs Van terminated the lease.

196. So far as the way in which the Crown opened the case against the applicant and his co-accused, it should be said, notwithstanding the detailed analysis attempted in the course of the submissions made on his behalf on this appeal, that the legal case against him was very simply expressed. It was contended that the applicant (and his co-accused) procured the commission of both the kidnapping and the consequent murder. It was said that they planned and organised both the kidnapping and the subsequent murder and that the applicant was the mastermind and Mrs Van was the facilitator in that she passed on the demands to Mrs Ha. So it was said that both the applicant and Mrs Van were actively involved and thus directly responsible for the kidnapping and that, inasmuch as they were fully aware of the consequences if the ransom were not paid, they were also responsible for the young man's murder, even though the later execution was carried out by others.

199. So far as the evidence at the trial was concerned, again the evidence-in-chief departed very little from that which I have earlier described. Although counsel for the applicant had originally said that he was going to challenge little of the evidence, a number of the more important individual witnesses were cross-examined in detail, largely in an attempt to show that their recollection of events was mistaken if not deliberately wrong. In particular, Mrs Ha was cross-examined on a large number of details. It was suggested that much information relating to her private financial affairs and as to her contacts with the applicant had been deliberately omitted. The substance of the case put against her was that the applicant had in fact given her $400,000 which she had in the first place agreed to transfer to his bank accounts in Hong Kong, but which was never paid, except for the $20,000 referred to above. It should be remarked that the attack was sufficiently cogent for counsel for the prosecution to concede that that may have been the basis upon which the applicant's demands for the $400,000 arose. Whether or not that was so, it could not have justified the methods adopted to recover the money, if the jury were satisfied, as clearly they must have been, that he had planned to strengthen his demands by the kidnapping of her son and then, if the money were not forthcoming, to have him murdered. Nevertheless, the attack meant that some matters of detail may not have been accepted by the jury and this may have been the explanation why the jury failed to agree on a verdict in relation to the co-accused, Mrs Van.

202. 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.

Whether placing the applicant on trial breached the provisions of s.42 - General

206. In these circumstances it is necessary to examine whether it was unlawful for the trial against the applicant to proceed on the substantive counts of kidnapping and murder. The simple question is whether the principle of speciality, in the form it was seemingly adopted in s.42 of the Act, precluded the Crown from bringing those counts against the applicant after he had been surrendered by the government of the United Kingdom for charges, inter alia, of conspiracy to kidnap and conspiracy to murder. The language of that section, which one would think was critical to the decision on this point, reads, so far as relevant, as follows:

"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 ... 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. ...".

However, "the conduct constituting any such offence" is further defined for the purposes of this section in sub-s.(2) of s.10 of the Act, as follows:

"A reference in this Act to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed."[24]

214. Section 42 of the Act is said to give expression to the principle of speciality, which is in fact the heading given to the section. That principle is said to be fundamental to the modern law of extradition, as is that of double criminality. For present purposes, although I should emphasise that it will be necessary to examine the concept in greater detail later in this judgment, one may take this basic, but unelaborated, definition, given by Barwick, C.J. in Barton v. The Commonwealth[25], and adopted by Gummow and Callinan, JJ. in AB v. The Queen[26], to the effect that it derives from an "assurance to the country surrendering the fugitive that the surrendered person will only be dealt with in the requesting country for the crime in respect of which his surrender was sought and given".

217. If one were to confine the concept of speciality to the very offence which was the subject of the request and surrender, then on the surface it would seem that there was little that could be said against the applicant's contentions, for in the present case the two counts of kidnapping and murder upon which he was convicted were different from those which were the subject of the surrender by the United Kingdom government, namely conspiracy to kidnap and conspiracy to murder. As a matter of strict analysis and looking only at the required constituent elements of each of the crimes, it is obvious that in order to prove conspiracy it is unnecessary to show that the completed crime has been carried out, so that in the present case it would have been unnecessary for there to be proof of the kidnapping and the murder respectively either for the purpose of the charges in this jurisdiction or for the purpose of the extradition hearing before the Bow Street magistrate in order to satisfy him that the two surrender offences were established to the extent required under the Extradition Act 1989 (U.K.). Upon this assumed basis there would be nothing further that would have to be shown for the applicant to satisfy this Court that he was in fact tried on different offences from those which were the subject of the relevant order for surrender, which of course appeared not merely from the conclusions reached by the magistrate but which in strictness were to be seen in those offences described in the request for surrender which became the subject of the surrender warrant.

220. So also it was contended that the elements sought to be proved at the trial were different from those which the Australian government sought to, and were obliged to, prove at the extradition hearing in England. For a conspiracy to murder it was necessary to prove an arrangement or understanding that the victim be murdered and that the applicant intended that that result should occur. By contrast it was pointed out that the jury was directed at the trial that, in order to convict the applicant of murder, they need find only that he was a party to the kidnapping and that he knew or was aware that "a realistic possible consequence" of that action was that the victim would be murdered. In other words, as the judge also directed them, it was not necessary that they find that the applicant intended that the victim be killed. So it would follow, if one accepted that the elements required to prove guilt at the trial should be substantially identical to those required to prove each of the surrender offences, that there was no co-incidence of those elements sufficient to satisfy the principle of speciality as defined for the purposes of s.42. It is unnecessary for the present to examine the rest of the applicant's contentions as to the elements of the relevant offences.

223. The answer to the question posed by the single ground of appeal would then, upon this view of the law, appear to be simple, that s.42 was not satisfied and the trial was a nullity. But can s.42 be properly construed in this way? Although by using the expression "conduct constituting the offence" the legislature might appear to be pointing to (only) acts of an accused which would make up the required elements of an extraditable offence, surely the extended meaning given in s.10(2) points to wider considerations being both relevant and necessary, let alone the additional "other" offences described in the latter part of para.(i) of s.42(a). More particularly, if speciality be a general principle of international law which is intended to be reflected in the Australian Act, then does not the understood content of that principle reflect on the meaning of the section? Further, the section and its requirements are of general application to the trial of all persons surrendered to Australia pursuant to a considerable number of mutual treaties and other international arrangements relating to extradition, many of which have explicit, but varying, provisions designed to achieve similar restrictions at trial. Moreover, it must be remembered that the Act also imposes an obligation on "extradition countries", to give, as a condition of obtaining extradition of a person from this country, a "speciality assurance"[27] to Australia expressed (for relevant purposes) in identical terms: see s.23(3)(d), as explained by s.23(4), especially para.(d)(ii) thereof. For obvious reasons the two provisions should be given the same interpretation.

226. As a matter of principle the interpretation put forward by the applicant and outlined above would appear too narrow. This is perhaps an unfortunate example in which to test the propositions as to what matters should coincide in order that the "principle" of speciality, as expressed in s.42, be satisfied, in that the extradition took place from one common law jurisdiction to another, indeed between jurisdictions in which the common law and statute law have both common origins and in theory little basis for divergence, whether one looks at the laws of conspiracy, murder or kidnapping. One knows that both jurisdictions' development of the law in each area has not in fact been identical, although statutory amendments, especially as to conspiracy, have attempted to keep divergence small. At least the relevant elements of each offence may be said in large respect to be the same.

229. 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 -

"The magistrate is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia."

Notwithstanding the language used, the term "extradition offence" is defined differently according to whether one is describing an offence in a country other than Australia or in relation to a part of Australia, so that for the purposes of s.19(2) the term means "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 a period of not less than twelve months".[32]

234. What we are here concerned with, of course, is not the process in Australia for extradition but that which may give rise in other countries to extradition to Australia, but the Australian provisions are not entirely dissimilar to those which apply elsewhere and I have already attempted to explain in detail the process adopted in the United Kingdom for the extradition of the applicant. It would have been apparent that the concern of the Bow Street magistrate was essentially an enquiry as to whether the alleged conduct constituted offences cognisable by the English courts.[33]

It is fair to say that not dissimilar procedures are adopted and not dissimilar limited enquiries are engaged in by the relevant tribunals in most other countries with whom Australia has extradition arrangements.

239. 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]

242. 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".

245. It was suggested in argument that the principle of speciality dictated a strict view of the section. That may, on the surface, also appear to flow from the use in s.42(a)(ii) of the expression "conduct constituting any such offence", pointing, so it was said, to the need to find substantial equivalence in the constituent elements of both local and foreign offences. The precise meaning of the section will be examined later but for the present the role of the speciality principle should be examined in order to see whether it may legitimately be called in aid in interpreting the section.

248. 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.

251. 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 ...".

254. Consequently it is hard to see how the interpretation of any particular section of the Act could be required to comply with any preconceived notion of what is stated to be some general "principle" of international law such as speciality, here said to control the meaning of s.42 and, it would appear to follow, that of s.22(4) of the Act. In fact, as will appear, what is generally called the "speciality principle" has been and is by no means certain in its content in international law and in its application in various municipal laws.

The nature and applicability of the principle of speciality

258. The variability of the concept expressed in the speciality principle may be seen not only in the manner which it is presently expressed but historically. There are two factors which have varied over the years: in the first place the broad principle itself has varied in its formulation and, secondly, it has been restated with riders or qualifications. In the latter category may be seen the provision now frequently appearing in treaties and reflected in sub-para.(ii) of s.42(a) of the Act which enables the requested country to "consent" to trial upon a different charge. More controversially, as such provisions may go to the content of the rule itself rather than to any qualification strictly so described, there is frequently a stated power, again appearing in s.42(a) permitting the requesting country to try the surrendered person for any other offence upon which he could be convicted on proof of conduct constituting the offence, or a power expressed in words to like effect.

261. If one goes to recent statements of the principle in this country, which may be a fair starting point as they were used in the context of litigation raising s.42 itself, one may detect subtle differences in the manner in which the rule has been expressed. The passage from Barton of Barwick, C.J. cited by Gummow and Callinan, JJ. in AB[43]

was simply expressed in terms of confining the requesting country to trying the accused for a crime "in respect of which his surrender was sought and given". The compendious "sought and given" wraps up a further difficulty which arises out of the generally observed double criminality rule, although it again has been expressed over the years in different ways. It is obvious that, so far as the requesting country is concerned, the relevant crime must be one in the criminal calendar of that country or of one of its constituent parts such as the States of Australia or the United States.[44] Furthermore, the crime "in respect of which [the] surrender was ... given", in such a definition and in conjunction with the word "sought", connotes satisfaction with the double criminality rule inasmuch as the requested country will ordinarily, if not invariably, require that the stated offence (or the conduct therein alleged) should be a crime or offence in that country also. Since the expression assumes that the double criminality test has been observed, the definition of speciality adopted by Gummow and Callinan, JJ. may, with respect, seem to be restrictive, indeed restrictive beyond the natural language of s.42. The other judge who formed the majority in AB, Kirby, J., expressed the test of speciality in somewhat different terms, when he stated[45]:

"However, from early times in extradition law there has been a rule that a fugitive, surrendered to the jurisdiction of the courts of another state, will not, without being afforded certain privileges, be detained or tried for an offence committed before surrender other than the extradition crimes proved by the facts on which the surrender is grounded."[46]

His Honour's apparent concentration is upon offences which are defined by the criterion that they have been "proved by the facts on which the surrender [was] grounded". That is a broader statement of the rule, indeed one which gives recognition to more recent statements of the principle which permit alternative charges to be preferred. The language his Honour uses, however, is not that of the present section (or of s.22), and in fact bears closest resemblance to the rule as stated in s.3(2) of the Extradition Act 1870 (Imp.), although its terminology is also very close to the language adopted in the two Acts which preceded the 1988 Act in this country, namely the Extradition (Foreign States) Act 1966 and the Extradition (Commonwealth Countries) Act 1966, the language used in both being "the offence in respect of which the person was surrendered or any other [lesser] offence of which the person could be convicted upon proof of the facts on which the surrender of the person was granted".[47] It may be noted that Kirby, J. used the expression "the extradition crimes" without examining (since it was unnecessary to do so) whether that comprehended only the explicit subject matter of the request to the foreign country.[48]

268. If one returns to earlier formulations of the speciality principle, similar differences may be observed, although it may be said that in the first place a somewhat more broad brush approach was taken. It is unnecessary here to examine the history of the rule; rather it is sufficient to give examples of what some have described as a universal rule in international law relating to extradition. In Stanbrook[49] it is said that the rule which "forbids the detention or trial of an extradited person ... for any offence ... other than that for which he was extradited" is one which "appears to be universally recognised and therefore merits the status of a general principle of international law". Gilbert, on the other hand, takes a more sceptical view as to what exactly is connoted by the rule, stating[50] that "its precise scope is little understood" and that: "On a strict analysis it would mean that the fugitive could only be tried for the precise offences for which he was surrendered."[51]

271. To see the variety of provisions relating to speciality one may take first the statute referred to earlier, namely the Extradition Act 1870 (Imp.)[52]

, of which the relevant provision for present purposes was s.19, which read:

"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 of returning to such foreign state, be triable or tried for any 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."

The terms of the section seem, especially for its time, remarkably wide in that, having regard to the principle of double criminality, it concentrates upon the facts and permits trial effectively for any offence established by the facts relied on in support of the request, so long as the offence is a treaty offence. Such a view is endorsed also by modern writers such as Shearer.[53] On the other hand at about the same time the government of the United Kingdom was entering into a number of treaties in which the test was expressed in far more narrow terms. One may take only one, namely the treaty between Her Majesty and the French Republic for the Mutual Surrender of Fugitive Criminals, signed in 1876, under which by Article IV it is provided (in the English text):

"The present treaty shall apply to crimes and offences committed prior to the signature of the treaty; but a person surrendered shall not be tried for any crime or offence committed in the other country, before the extradition, other than the crime for which his surrender has been granted."

It was held in R. v. Corrigan[54] that the broader language of s.19 of the 1870 Act prevailed over the terms of the French treaty.

280. With these statements of the principle one must compare that of the United States Supreme Court given in 1886, though provoking a vigorous dissent from Chief Justice Waite, in United States v. Rauscher[55]. One may note, for the purpose of considering any other authority from that country, that it was also held in that case, and in a number of other decisions of that court, that, in contrast to the rule applicable still in this country and in England, "a treaty, then, is a law of the land, as an act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined".[56] More importantly for present purposes it was held in that case that, notwithstanding the absence of any treaty provision concerning the principle of speciality in the relevant treaty between the United States and Britain, the court would imply that such a principle applied in all such circumstances in terms which are expressed by Miller, J. for the majority of the Court[57], as follows, "The country receiving the offender against its laws from another country had no right to proceed against him for any other offence than that for which he had been delivered up". The implication was said to have been made in order that the United States might satisfy its treaty obligations and to assure other countries that the principle would be observed in the United States, a factor which was indeed relied upon by the Queen's Bench Division in Re Alice Woodhall[58], described only in Sir Edward Clarke's Treatise Upon the Law of Extradition.[59]

283. Rauscher was decided on general principles[60] because the specific treaty under which the respondent had been extradited contained no explicit term as to speciality. With the greatly increased numbers of treaties entered into by the United States the particular problem does not seem to have been quite so common and it is recognised that often the principle must now be looked at in the light of the specific provisions of those treaties. Thus in the Restatement of the Law (3d) relating to The Foreign Relations Law of the United States (1987) the current principle is stated cautiously by reference to those arrangements in these terms[61]:

"Doctrine of Specialty Under most international agreements, state laws and state practice: (1) A person who has been extradited to another state will not, unless the requested state consents, (a) be tried by the requesting state for an offence other than one for which he was extradited; or (b) be given punishment more severe than was provided by the applicable law of the requesting state at the time of the request for extradition. (2) A person who has been extradited to another state for trial and has been acquitted of the charges for which he was extradited must be given a reasonable opportunity to depart from that state."[62]

On its face the present rule so stated would seem to be strict, but the following appears as Comment (a) immediately thereafter:[63]

"Variance between request for extradition and prosecution. Courts in some states construe the doctrine of specialty strictly, so that any variance between the charge on which the extradition was based and the charge on which the prosecution is founded must lead to dismissal of the prosecution. In other states, including the United States, the prosecution may go forward if it is based on the same facts as those set forth in the request for extradition, even if there is some difference in terms between the request for extradition and the indictment."[64]

289. The precise basis upon which the principle is expressed in recent U.S. authorities need not be presently examined further. It is sufficient to say that one well-known U.S.-based writer, M. Cherif Bassiouni, in his International Extradition: United States Law and Practice[65] deals with the principle on the basis that it reflects international law and states[66]:

"This principle stands for the proposition that the requesting state, which secures the surrender of a person, can prosecute that person only for the offense for which he or she was surrendered by the requested state or else must allow that person an opportunity to leave the prosecuting state to which he or she had been surrendered."

The text suggests that in identifying the principle in this form, which appears to concentrate on the fact of surrender rather than of request, the learned author was attempting to express rules in international terms rather than on the basis of United States law.[67] Although seemingly expressed in very limiting terms, the rest of the discussion makes clear Bassiouni's recognition of various qualifications which presently affect the principle, whether stated in international terms or whether dependent on treaties or local legislation. It is useful to describe some of those qualifications expressed by the author for, as he recognises, they are by no means uniform. It can be seen already that the primary description of speciality sometimes concentrates on the offence which was the subject of the request and sometimes, and occasionally in addition, on the offence which is the subject matter of the surrender, which usually brings with it recognition of the double criminality rule.

294. The first possible qualification is that variance may be permitted with the consent of the surrendering state. Bassiouni[68] expresses the qualification:

"In order to prosecute a relator for an offence at variance with the offence for which the extradition request was granted, the requesting state must obtain the consent of the requested state while the relator is still in custody based on the offence for which extradition was granted."

Reference is then made to the commonly stated qualification that, if the accused has been given the opportunity to leave the requesting state or has left and returned voluntarily, then a different offence may be charged.[69] Further the learned author states two further potential qualifications, seemingly recognised in the United States at least, the first of which would permit prosecution for included or lesser alternatives comprehended by the charge.[70] Moreover he then states an important and frequently recognised qualification[71]:

"In addition the relator can be tried for any offence established by the facts supporting the original request, provided it is a kindred offence based on the same facts, but which would be an extraditable offence and satisfy the requirement of double criminality in accordance with the extradition relations of the respective states. Any variance from the above will be deemed a violation of the principle of specialty." (Emphasis added.)

Finally he states[72] that an individual may "waive the application of the principle by consent to be prosecuted for an offence at variance with the offence charged in the extradition request", asserting that it appears that the surrendering state cannot then claim the benefit of the doctrine. An elaborate examination of the case law in U.S. federal courts[73] appears in the relatively recent annotation "Application of doctrine of specialty to federal criminal prosecution of accused extradited from a foreign country" by David B. Sweet.[74]

301. It is sufficient to conclude this discussion with a reference to the former Australian provisions and to the present English statutory provision, to which brief reference has already been made[75]

and which was the basis of the certificate of speciality given in relation to the request seeking the applicant's extradition. Sub-section (4) of s.6 of the 1989 U.K. Act in substance reads:

"A person shall not be returned ... unless provision is made, or by an arrangement made with the relevant ... Commonwealth country ... for securing that he will not, unless he has first had an opportunity to leave it, be dealt with there for or in respect of any offence committed before his return to it other than - (a) the offence in respect of which his return is ordered; (b) an offence, other than an offence excluded by sub-s.(5) below[76], which is disclosed by the facts in respect of which his return was ordered; or (c) subject to sub-s.(6) below, any other offence being an extradition crime in respect to which the Secretary of State may consent to his being dealt with."[77] (Emphasis added.)

Sections 18 and 19 of the U.K. Act contain similar but not identical restrictions in relation to the trial of persons extradited to the United Kingdom, the test being related to the "particulars furnished to the ... country ... on which his return is grounded".[78] Detailed expositions of the present United Kingdom law, as well as its history, may be found in Stanbrook, primarily in Chapter 3 on "The speciality rule", and in Jones in his discussion in Chapter 2 Part 2 on "Specialty".[79] From the relevant provisions it will be seen that one alternative under the English legislation permits prosecution in requesting countries for offences "disclosed by the facts in respect of which ... return was ordered."[80] On that basis, whatever be the proper construction of s.42 of the Australian Act, it would seem that the counts at trial came within the speciality certificate and so it would have been highly unlikely that any objection would have been made to a request for consent under para.(c) of s.6(4).

308. What is interesting is that similar terminology was used in the legislation in force immediately preceding the passing of the 1988 Australian Act. For present purposes one may look at s.22 of the Extradition (Commonwealth Countries) Act 1966[81], which provided:

"Where a person accused ... of an extraditable crime is surrendered by a declared Commonwealth country, the person shall not, unless he has been returned to that country or has had an opportunity of leaving Australia - (a) be detained or tried in Australia for any offence that is alleged to have been committed ... before his surrender other than - (i) the offence in respect to which the person was surrendered or any lesser offence of which the person could be convicted upon proof of the facts on which the surrender of the person was granted; or (ii) any other extraditable crime in respect of which that country consents to his being so detained or tried as the case may be ...". (Emphasis added.)

The use of the expression "lesser offence", in contrast to that of "other offence" found in s.23 of the Extradition (Foreign States) Act, would seem to have been in compliance with clause 15(2) of the Commonwealth scheme, although that sub-clause has not been incorporated directly in the Extradition (Commonwealth Countries) Regulations referred to above[82]

and which seems to have been deliberately ignored when drafting both those regulations and the 1988 Act. A discussion of both the present Australian law and its history may be found in Aughterson_: Extradition: Australian Law and Procedure_ (1995).[83] It is not practical to refer to the provisions of the many treaties entered into by Australia on the subject, except to say that there is a considerable variation in language used and the majority of treaties are incorporated in regulations having the effect of relevantly modifying the Act pursuant to s.11 of the 1988 Act. It may thus be said that, notwithstanding the provisions of s.42 of the Act, there are no uniform speciality requirements laid down by Australian law in relation to persons extradited to Australia.

315. In my opinion, therefore, notwithstanding the broader statements of some of the text writers, there cannot be said to be any uniform rule, whether of international law or municipal law, embodying the principle of speciality. The lack of uniformity makes it impossible to construe the principle embodied in s.42 by reference to any supposed general principle of speciality. Not only have there been variety of qualifications imposed relating to such issues as consent and the extent to which an extradited person may reject the opportunity of leaving the jurisdiction before being charged with other offences, but, more importantly, the essential statement of the rule has sometimes reflected concern with the subject matter of the request and sometimes the subject matter of the extradition order by the requested country, and also often has permitted the possibility under various laws and treaties that an alternative offence may be charged if based on the conduct or the facts alleged or the nature of the relevant charges themselves. It certainly cannot be said that the speciality principle has been generally expressed in such restrictive terms that it will not permit the later charging of alternative offences in all circumstances. Consequently one must look for conclusive guidance on the proper meaning of s.42, and the related sections, to something other than any universally defined "speciality principle", howsoever that may be described.

319. What I have so far said and the conclusion that I have reached in the preceding paragraph does not mean, however, that s.42 should be construed in any narrow way or without regard to the variety of extradition arrangements which Australia has entered into with other countries. What is not clear is why the Australian legislature moved from the test based upon "the facts on which the surrender ... was granted" to a test based on "the conduct constituting any such offence", as modified by s.10. I have examined the explanatory memorandum for the bill, the Hansard Debates, a number of working papers, textbooks and articles and made a number of direct and indirect enquiries, but I have not been able to find any explanation for the change in language from the 1966 legislation to that of the current Act. The only treaty I have found adopting the same language is that with the United States of America, as amended by the 1990 protocol[84], which, again for reasons not explained, uses the expression "conduct constituting the offence" (otherwise not defined), notwithstanding that the principle as applied in America by the courts seems to have been based on a very broad view as to what other offences may be charged.

322. One must therefore recognise that it is not immediately obvious whether there was a deliberate decision to change the language and thus the meaning of the speciality provision as applied in Australia, or whether the legislature was merely intending to restate the earlier provisions in different terms. The task of interpretation is, moreover, not assisted by the decision to employ the language now appearing in s.42 (and similar sections) and then to qualify its meaning, which some might say is by no means clear, by the use of similar but by no means identical words in s.10. As an exercise in drafting it must be said, with due respect to those responsible, to be one conducive to confusion.

325. It is first necessary, therefore, to read in, as best one can, the provisions of s.10(2) into the prohibition contained in s.42(a)(i). In substance I believe that the section should effectively be read so as to require that the accused not be tried for "offences other than those ... of which the person could be convicted on proof of the acts or omissions, or both, by virtue of which the [relevant] offence ... is alleged to have ... been committed." The relevant offence is in terms of s.42 the offence "in respect of which the person was surrendered". The manner in which I have suggested that the two sections ought to be read together suggests, importantly, that the new test may not be all that different from the former test (and this is substantially the test under the English Act under which the applicant was surrendered), whereby one might look at that which was established, upon proof of the facts on which the surrender of the person was sought[85]

. Such a solution, if not inconsistent with binding authority, would enable the Court to look under s.42 at a range of other offences, so long as the relevant material was properly made available to the examining magistrate or tribunal in the surrendering country. Such a reading would overcome the difficulty inherent in having to make a comparison between materials tendered on different bases for the purpose of determining what are offences within the jurisdiction of the court trying the offender and those which might have satisfied the examining magistrate or tribunal in the foreign country for the purpose of compliance with the double criminality test as applied in that jurisdiction.

330. In other words the relevant interpretation and the consequent test must be determined in the light of the fact that not only will it be likely in the majority of cases that the constituent elements will be different for seemingly similar offences in each jurisdiction but also that what is considered sufficient evidence for the purpose of satisfying the double criminality test may well be different. Moreover, at the end of the day too rigid an adherence to what amount to constituent elements of offences would impose a severe burden in practical terms when considering the issue whether the requirements of s.42 should result in the stay of a trial, if the trial judge were required to examine whether and on what materials the magistrate or tribunal in the surrendering country had reached its conclusions as to double criminality. There have been sufficient difficulties in the present case in determining what in fact occurred where one might have expected similar procedures to be adopted and tests to be imposed which are familiar to common law courts, but the relevant test must be capable of satisfactory resolution in cases when materials setting out relevant acts and omissions are forwarded and tendered in jurisdictions where both constituent elements and procedures are significantly different.

333. It is for this latter reason that the tests for speciality in other jurisdictions become relevant, if only to show the variety of circumstances which must be satisfied in interpreting s.42 satisfactorily. It must be remembered that by reason of the principles of comity, as reflected in either treaties or joint arrangements, the speciality rule was designed to satisfy not merely the reasonable expectations of those arrested but, at least primarily in the first place, to satisfy surrendering countries to whom the equivalent of a speciality assurance was ordinarily tendered. It would be curious, though not impossible, for an undertaking, as here given, merely confined to the surrender offences and to other offences "disclosed by the facts", to lead to a more stringent consequence because the requesting country itself had a stricter regime.

336. As I have said, there are apparently no binding authorities as to the meaning of s.42[86], that is in cases where the accused has sought a stay or the avoidance of a verdict upon surrender to this country under the present legislation. There are however a number of decisions, including a number by the Full Federal Court, in which the expression "the conduct constituting the offence" has been considered in relation to the requirements of s.19 and the manner in which the examining magistrate must resolve the "double criminality" test as laid down by that section. Speaking generally, there is an ambivalence, if I may respectfully say so, in the approach taken to that expression as expanded by sub-s.(2) (and sub-s.(3)) of s.10, inasmuch as it has been stated, in a passage strongly relied upon by the applicant, on a number of occasions that: "The relevant `acts or omissions' are the elements or ingredients of the offence, and not the particular evidence that is supposed to prove them ...": see Zoeller v. The Federal Republic of Germany (No. 2)[87], De Bruyn v. Republic of South Africa[88] and McDade v. United Kingdom[89]. Cf. Wiest v. DPP (Cth) per Gummow, J.[90] To be fair, each of those judgments appears, at least at times, to contemplate that more than the bare bones of the necessary allegations have to be set out and relied upon for the purpose of s.19. For example, in Zoeller (No. 2)[91] it is contemplated that the statement of facts may well go beyond the facts which necessarily constitute the relevant foreign offence and, more importantly, the magistrate is not obliged to "have regard only to those facts which are absolutely necessary ingredients of the foreign crime". See Holt[92] and McDade[93]. It would be remarkable if more were not needed, but one must make allowance in interpreting the section for the variety of ways in which foreign jurisdictions may choose to formulate offences: see e.g. Timar v. The Republic of Hungary[94].

339. 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]

would be counterproductive, and not one, in my respectful opinion, required by the language of the section. Indeed, I would respectfully agree with the following statement of Kenny, J., which appears in McDade[99] by way of explanation or exposition immediately after that dictum:

"What is being sought is a clear and coherent statement of the actual acts and omissions which are said to constitute the offence. The statement must `speak with sufficient specificity' and coherence to serve its purpose ... The statement must be such as to permit the magistrate charged with conducting proceedings under s.19 to be satisfied, one way or the other, as to whether the conduct said to constitute the offence in the extradition country or the equivalent conduct, would constitute an extradition offence had it taken place in that part of Australia where the proceedings have been conducted ...".

345. Furthermore, the earlier dictum from Zoeller (No. 2) appears to assume that elements or ingredients will invariably stand as statements of fact sufficient to satisfy the description "acts or omissions" in s.10. What amount to elements or ingredients, at least in common law offences, are usually compendiously stated conclusions which are frequently secondary facts derived by inference from circumstantial evidence. Of course, in cases of simple theft or the infliction of injury certain ingredients will be obvious, but even in offences of that kind certain matters must be satisfied which can ordinarily only be established by evidence of acts and omissions, not by an assertion as to a conclusion. Take even the offence of intentionally causing serious injury in this jurisdiction. Whether the injury is serious is a matter to be proved by acts or omissions, not merely by assertions. If the requesting country were one where the broadly equivalent offence is the infliction of grievous bodily harm, one would not wish to ask for a detailed comparative analysis, even if one believed that they are almost identical offences, to see whether the injury satisfied the law of both jurisdictions. Likewise in a case of theft, notwithstanding the similarity of the two statutory offences in the United Kingdom and Victoria, one would not wish to have an examination as to the element of dishonesty in both jurisdictions, having regard to the analysis in Peters v. The Queen [100], but one would certainly require evidence of acts or omissions from which the necessary element of dishonesty could be inferred. [101]

348. In any event I do not believe a proper analysis of authorities requires that one take a narrow view of satisfaction as to what amounts to "conduct constituting the offence". For the purposes of s.42 it must be understood as requiring reference to the materials provided to the foreign jurisdiction by Australia as the requesting country and upon which the order for surrender has been sought. If that be the case, then the facts here in question, i.e. the acts or omissions by virtue of which the offence was alleged to have been committed, were wide enough not merely to comprehend the offences of conspiracy to kidnap and conspiracy to murder but also the substantive offences of kidnapping and murder, for, as I have already shown, the evidence at both the extradition hearing and at the trial was, if not identical, so similar that any differences must for the purpose of the proper interpretation of the section be disregarded.

Authorities on meaning of "conduct constituting [the] offence"

352. Before reaching any final conclusion on the meaning of the expression it is necessary to look at the authorities, which in practical terms are confined to cases on double-criminality. I take first a statement by Deane, J. in Riley[102] which, as I would understand it, states the international principle relating to double criminality[103] and which is cited as indicating a preferable approach not merely to the concept of double criminality but also, by reflection, to the principle of speciality:

"The preferable view - and that which commands general acceptance - rejects the need for precise correspondence between labels or between the constituent elements of identified legal offences under the criminal law of the requesting and the requested States and defines the principle of double criminality in terms of substance rather than technical form. On this view, the requirement of double criminality is satisfied if the acts in respect of which extradition is sought are criminal under both systems even if the relevant offences have different names and elements .... This view places primary emphasis upon the acts constituting the offence alleged against the accused in the warrant rather than on general theoretical correspondence between the legal elements of the offence which is alleged to have been committed against the law of the requesting State and some offence recognised by the law of the requested State."[104]

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]

359. The earlier statement by Deane, J. as to the nature of the double criminality rule in international law still provides, nevertheless, a suitable starting point for an examination of recent Australian authority, not only where expressions such as "the act or omission constituting the offence"[113] are under consideration, but also where the present expression has been considered.

362. 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.

365. So far as earlier analysis of the principle of speciality in the various Australian extradition Acts is concerned, apart from the broad statements appearing in Barton and in the first Zoeller case, to which reference has already been made[125]

, there is only one other decision on the earlier legislation which examines the concept of speciality in any detail, namely, Re Ditfort; ex parte D.C.T. (N.S.W.)[126]. Although the issue related primarily to the enforceability of the speciality assurance, the discussion by Gummow, J. is notable for the reference to a number of decisions decided in the United States[127], notable in the sense that citation of authority was made from a jurisdiction in which many aspects of extradition law are significantly different from those contained in the Extradition Act of this country. [128]

370. In addition there were three earlier decisions, which on their face appear to raise questions as to speciality, but which on proper analysis relate only to the question whether the offences in question were extraditable crimes in the sense that they were "offences in respect of which the person was surrendered" within the meaning of s.22(a)(i) of the Extradition (Commonwealth Countries) Act 1966: see R. v. Nicholl ex p. Boog[129]; R. v. Boog[130] and Wong v. Evans[131]. In each case there was no suggestion that an alternative charge could have been laid in this country and thus no argument was directed to the question what the words "the facts on which the surrender of the person was granted" or "facts on which the requisition was based", as appeared in s.22 before its amendment in 1985, for that section[132] permitted only charges for "lesser offences for which the person could be convicted" and in each of the three cases no "lesser offence" was charged or was appropriate.

373. Turning then to authorities on the meaning of relevant expressions in the 1988 Act, I have already observed that there are no decisions which analyse s.42 as such, although there have been a few casual references to it, including those in AB. Nevertheless, the expression "conduct constituting [the] offence", which appears not only in s.42 but also in ss.16, 19 and 22 in particular, has been the subject of several decisions in the Federal Court, in each case relating to the procedure for extraditing persons from Australia. In Zoeller (No. 2) the Court[133] considered the expression in question in the context of the requirement in s.19(3)(c)(ii) of the Act requiring "a duly authenticated statement in writing setting out the conduct constituting the offence". In dealing with a submission based on some of the more restrictive views expressed by Deane, J. in Riley, the Court observed[134]:

"This Court has approached the issue of whether a particular statement met that requirement as presenting a matter for practical judgment and assessment, not for over zealousness in discerning deficiencies, and the Court has treated the phrase `the acts or omissions' as referring to the elements or ingredients of the offences, not particular evidence adduced to prove those acts or omissions ...".

Likewise the appellant relied on statements, in particular by Lord Bridge in Government of Canada v. Aronson[135], where the test of O'Dalaigh, C.J. requiring proof of specific ingredients A, B, C and D was relied upon, which were said to require the investigating magistrate to confine the inquiry only to the facts which constituted the essential elements of the requesting country's offence. As to that, however, the Court said that the argument ignored the provisions of s.10(2) of the Act, so that they concluded[136] that:

"What is relevantly required is a statement of what is alleged to have been actually done or omitted, not a mere restatement of the charge in respect of which extradition is sought."

Then, having examined the history of extradition legislation from 1843 to that time, including the scheme known as the London or Commonwealth Scheme[137]

, their Honours said it did not follow from the adoption of the Scheme that the warrants in the case under consideration were invalid "because they contained a statement of facts which goes beyond the facts necessarily constituting the offence in German", nor did it follow "that the magistrate may have regard only to those facts which are absolutely necessary ingredients of the foreign crime". Importantly they continued[138]: "The magistrate is no expert in foreign law. He is not required to determine what the facts are that are the minimum facts necessary to constitute the foreign crime." In practical terms, then, they said that the magistrate had the s.19(3)(c)(ii) statement in front of him and he was required merely to determine whether the conduct there described "is an offence under the law of a state or territory of Australia or Commonwealth law".[139] It is clear, to my way of thinking, that the Court was discouraging as impractical any exercise based on a comparison of the constituent elements of the offences in the laws of the requesting country and that of the relevant jurisdiction in Australia. Similar observations were made by Pincus, J. in Unkel v. DPP (Cth)[140].

382. Then in USA v. Holt[141] the Full Federal Court[142] sought to lay down some six propositions (all of which were quoted with approval in McDade[143]), largely taken from Zoeller (No. 2), in a case relating to the test to be imposed by magistrates under s.19. After stating that the magistrate does not have to be satisfied that the relevant "conduct" constitutes an offence in the requesting country, the Court stated these propositions[144]:

"(2) All the magistrate is required to do, by reference to Australian law, to determine whether the conduct referred to in the s.19(3)(c)(ii) statement would constitute an offence under the law of a state or territory of Australia or Commonwealth law that is punishable by not less than twelve months' imprisonment ... (3) In so doing the magistrate is confined to the material adduced on behalf of the country requesting extradition. But that does not mean that the magistrate may only have regard to those facts which are absolutely necessary ingredients of the foreign crime ...".

386. 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".

389. In the end the majority resolved De Bruyn by accepting, in the circumstances of that case, that the description contained in the German indictment was sufficient to justify the making of the relevant finding without recourse to any other statement or document. Gyles, J. dissented but, although accepting what Gummow, J. had said in Wiest, he made this valuable point[156] about criminal pleading and the application of the relevant rules to a determination as to what amounts to relevant conduct under the Extradition Act:[157]

"It may be permissible pleading to simply allege a misrepresentation. This will depend upon the rules and practice in a particular jurisdiction. That allegation, however, is a conclusion from other facts which would need to be particularised before the accused would know the case to be met. In my view all acts or omissions which would properly be particularised in that way would need to be particularised for the purposes of s.19(2)(c). The actual acts or omissions of the accused must be identified. This is not to descend to evidence in the sense in which I believe the term was used by Gummow, J. in Wiest. The evidence, in that sense, may consist of admissions, evidence of eye witnesses, documents and so on."

393. In McDade v. United Kingdom[158] the Full Federal Court again considered the meaning of s.19. Kenny, J. (with whom the other members of the Court agreed), set out[159] the six propositions stated in Holt and then[160] the dictum of Gummow, J. in Wiest, observing, however, that it was not the magistrate's task to determine whether the conduct amounted to an offence in the requesting state. She continued[161]:

"What is being sought is a clear and coherent statement of the actual acts and omissions which are said to constitute the offence. The statement must `speak with sufficient specificity' and coherence to serve its purpose ... The statement must be such as to permit the magistrate charged with conducting proceedings under s.19 to be satisfied, one way or the other, as to whether the conduct said to constitute the offence in the extradition country or the equivalent conduct, would constitute an extradition offence had it taken place in that part of Australia where the proceedings are being conducted ...".

Her Honour added[162] that in a s.19(3)(c)(ii) statement the relevant acts and omissions must be reasonably identified, but whether such a statement should be accepted as a statement setting out the constituent conduct was essentially a matter of practical judgment and assessment, not one for overzealousness in discerning deficiencies, as stated in Zoeller[163].

398. Reference was made in argument in McDade to the comments in De Bruyn, to the effect that Aughterson had criticised[164] the broad statements in Zoeller and Holt, but Kenny, J. said[165] that it had not led the majority in De Bruyn to adopt a different approach, nor did she find any occasion to depart from what had been said in Zoeller and Holt. In the event, although the statement in McDade included some matters "which, if proven, might establish some uncharged offences", she held[166] that their inclusion did not render the statement "confusing or misleading in any relevant way". Her Honour concluded[167] by rejecting an argument that it was open to the English prosecuting authorities to charge the appellant with any offence arising out of the facts in the statement. She pointed to the speciality assurance provided by the United Kingdom government in terms of s.22(3)(d), saying that it would be for the English courts to determine the elements of the surrender offences and, if relevant, the offences of which he "could be convicted on proof of conduct constituting any of the surrender offences".

401. The latter observation is interesting in the sense that Kenny, J. assumed that the U.K. authorities would be constrained in terms of the assurance given to the Australian government. Of course, under English law, the statutory restriction is expressed in s.19 of the U.K. Act in terms of (lesser) offences "disclosed by the particulars ... on which the return is grounded". That language is, arguably, partly wider and partly narrower, but, although the only authority on a related question is Corrigan, I would doubt that English courts would find themselves restricted by the terms of the assurance,[168] but would look only to the terms of the relevant section. The present case is effectively the reverse of McDade (except as to the subject matter of the surrender), the Australian government's undertaking here being broadly expressed[169]

in terms of the "facts in respect of which his return was ordered", the language used in s.6(4) of the U.K. Act. It is a good example of how, in the course of the extradition process, the same set of facts have to be looked at from a number of perspectives, in order to see if they satisfy certain statutory (or other) formulae, often expressed in different language but arguably directed to the same end. It tends to the conclusion, I would suggest, that language of the kind used in s.42 (as well as in ss.19 and 22) should be given a broader rather than a narrower interpretation.

406. Similar statements appear in the decisions of the Full Federal Court in Timar v. The Republic of Hungary[170] and Cabal v. United Mexican States (No. 3)[171]: cf. Rahardja v. The Republic of Indonesia[172], but in terms which do not require further analysis. As earlier stated, there has been but one dictum as to the meaning of s.42, in Oates[173], where, in proceedings to restrain a request for extradition, Lindgren, J. said: "Apparently the expression `the conduct constituting any such offence' in s.42 is to be construed expansively as similar expressions are construed in s.19."

410. 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.

413. Returning, then, to the broad effect of the "any other offence" clause ("the second clause") in s.42(a)(i), one must remember that it represents a deliberate choice to extend Australia's right as the requesting state to charge extradited persons with offences other than those which have been the foundation for the request. In this respect the section is not unusual, repeating with minor differences a provision applicable under the earlier legislation and reflecting a pattern to be seen in the U.K. legislation, going back at least to the Extradition Act 1870 (U.K.)[175]

, in many treaties with foreign countries and in the London or Commonwealth scheme.

418. If one accepts, as arguably one should,[176]

that even the primary provision in the first clause of the paragraph ("any offence in respect of which the person was surrendered") must be resolved on the basis of the "substantial similarity" of the offence made the subject of the request and the offence charged at the trial, then it is clear that the second clause of s.42(a)(i) must cover offences which are not either the same or substantially the same. The difficulty of precise identification has been seen in the cases decided on s.19 to which I have already referred, but there the issue is always whether an offence defined in terms of some Australian jurisdiction is the same or substantially the same as the offence for which a foreign country seeks extradition.

423. What must be established for the "double criminality" enquiry, however, is not the same as the whole of the enquiry under s.42(a)(i). Allowing for the fact that the "first clause" enquiry, as to whether the offence is one in respect of which there has been surrender, can be satisfied only by either the same charge or one expressed in very similar terms, the enquiry under the second clause must of necessity be wider. In a sense, it is facultative, not restrictive, but the cases on s.19 will be relatively of little assistance, in the sense that they may be unnecessarily restrictive for present purposes, even though they refer to a similar concept described in the expression "the conduct constituting [the] offence".

426. In my opinion this second clause of s.42(a)(i) must be intended to cover a wider range of offences. To say, as has been argued, that it must refer to offences containing the same constituent elements is to reduce the effect of this part of the section to negligible proportions. The second clause assumes that there is a primary extraditable offence, but it then gives power to charge different offences, subject to the requirement that they must be based on the same conduct. If the conduct were limited to constituent elements, there would be very few offences, in many cases none, covered by the clause. To say that it was intended to cover only alternative, or "included" offences as the Canadians describe them[177], would give it very little scope.

429. It would, moreover, be difficult to justify an interpretation confined to lesser charges having regard to the history of the legislation. If Parliament intended that result, it could have done so, as it has in the past and as the U.K. legislation still in part does. It will be remembered that s.22 of the Extradition (Commonwealth Countries) Act 1966 permitted the charging also only of "lesser offences", as does s.19 of the Extradition Act 1989 (U.K.), both sections being consistent with the provisions of the London or Commonwealth scheme.[178]

What is different in the present legislation is that for all charges brought as a result of extradition requests to all foreign countries by Australia, the alternative permitted by the second clause of s.42(a)(i) now comprehends "any other offence", whatever jurisdiction has been the source of the extradition, subject only to treaty qualifications embodied in regulations. If that be so, whatever else was thought to have been intended by the change of language adopted in the 1988 legislation, clearly all other offences which the relevant conduct would sustain can now be charged upon extradition to Australia, so long as the penalty is not greater.

434. It is indeed hard to think of many related offences which have the same constituent elements which are not merely lesser alternatives to a primary offence. Perhaps some of the offences relating to drug importation set out in s.233B of the Customs Act 1901 (Cth) may comprehend the same conduct by way of proof of their required elements, and the penalty for each of those charges is the same. Otherwise I find it difficult to recall any group of offences based on like conduct in which the alternative offences do not impose lesser penalties.

437. It follows that, even if the relevant provisions of s.19 should be read more narrowly than they are at present (and I am not suggesting that they should), the permitted range of offences under s.42 must be wider and must refer to conduct beyond that which might form the basic constituent elements of the relevant primary offence. It may well be that this consideration, so far of little consequence in determining what must be established under s.19, may assist in defining the expression "conduct constituting [the] offence" more widely for the purposes of s.19, but it is not necessary to say more than has been so far stated. It certainly means that the "acts or omissions, or both, by virtue of which the offence is alleged to have been committed" may logically be given a reasonably expanded meaning for the purposes of s.42, in the sense that one should be permitted to look at the conduct alleged as a whole and one should not be confined to those acts or omissions which form the bare essentials of the required elements to be proved. Moreover it strongly suggests that, notwithstanding the different language used, its essential meaning is little different from that formerly prescribed whereby the question was directed to offences which could be proved by "the facts on which the surrender of the person was granted", terminology common to many treaties and legislation in other countries.

440. One may concede that it is possible to reach a narrower interpretation of the section if one were confined by the expression appearing in s.42(a)(i) "the conduct constituting any such offence", for that might, on proper analysis, refer one back to the elements making up the offence "in respect of which the person was surrendered", namely the primary offence which was the subject of the request. If so, the provision would permit little more than the charging of common law and statutory alternative counts. But the expression was expanded for good reason by the language appearing in s.10, though not, it would seem, by reason of any difficulty arising out of the application of the speciality rule to extraditions to Australia. In the 1966 Acts[179], as in the Fugitive Offenders Act 1967 (U.K.)[180], the definition of extraditable offences was based on the concept of an "act or omission [which] would have constituted an offence ...", which for obvious reasons drew attention to and required enquiry as to the constituent elements of the relevant offence for the purposes of the double criminality rule. No special difficulty arose there, since a magistrate in Australia had to be satisfied that some act or omission or some acts or omissions were sufficient to satisfy the description of an offence within the relevant Australian jurisdiction, but it clearly would have posed difficulty if such precise language had been used in relation to the speciality rule. Thus, as I have noted earlier, whether in describing the speciality assurance or the restrictions posed on prosecuting authorities where persons had been extradited to Australia, the language used spoke in terms of "proof of the facts on which the surrender of the person" was ordered or granted. The present legislation attempts to merge the two concepts, or at least tries to do so by referring to a similar concept or a concept expressed in almost identical terms, seemingly based on conduct constituting an offence.

443. Although there seems to be no explanation for the change, s.10 appears to have been the means by which the legislature tried to overcome the narrowness imported by the use of a word such as "constitute" which suggests proof of constituent elements. It did so by inserting, for the required "conduct", the concept of "acts or omissions ... by virtue of which the offence ... is alleged to have been committed". That clearly is not the same as the earlier expression "acts or omissions constituting an offence", for repetition of that expression would have added nothing in practical terms and would have served to narrow the definition. Under s.10 the acts or omissions no longer have to constitute the offence; they are merely to be relied upon for the purpose of alleging, and ultimately proving, that an offence has been committed, for which purpose the expression "by virtue of which" is used in conjunction with the concept of allegation.

446. 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.

449. 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.

452. I should mention here a dispute as to the meaning of the first clause of sub-para.(i) of s.42(a) which arguably would have a bearing on the meaning of the second clause, in that the expression "any such offence" grammatically points to the word where it first appears in the sub-paragraph in the expression "any offence in respect of which ...". Aughterson[187] contends that the relevant offence is that which is stated in the surrender warrant, not in the Australian requisition. Undoubtedly in the earlier legislation, which was discussed in Boog and Wong, the equivalent expression described offences "to which the requisition for surrender related", thereby making it clear beyond argument that it was the Australian requisition which defined the relevant offence for the purpose of the equivalent first clause. The learned author assumes that, by changing the qualifying words to "in respect of which the person was surrendered", the legislature must have intended to refer to the offences in the surrender warrant, which means, having regard to current practice (as here occurred), that the offence will ordinarily be expressed in terms of the law of the surrendering country.[188]

455. One United States and two Canadian decisions were cited by the author, but each arose out of a speciality provision expressed in terms of offences "for which he was surrendered": see Hall v. Patterson[189], Re Hall[190] and R. v. Hall[191].

458. In my opinion there is a distinction between offences in respect of which surrender has taken place and those offences for which a person was surrendered. The latter expression identifies the offence from the fact of surrender, so leading to an inference that one should look at the surrender warrant, but the first expression, that appearing presently in s.42, merely serves to identify an offence in respect of which the surrender process was initiated and concluded. The present section and the first clause of the sub-paragraph therefore look to the offence which was the basis for putting in train the surrender process. I concede that a different view is open, indeed on that construction it might help to expand the meaning of the second clause, but for present purposes one must concentrate on the second clause and what is intended to be connoted by its expansionary terms.

461. The "conduct" which has been described at the end of this second clause of sub-paragraph (i) may, on one view, consist of the acts and omissions which the prosecution rely upon at the trial, but that cannot be so, in that the bar to detention and trial, if it arises, must be capable of being identified after surrender but before any step in the prosecution process takes place, i.e. before the surrendered person can be "detained or tried". The enquiry as to conduct must be directed to some earlier stage and the factual basis at that time for the surrender offence. The most obvious source for a statement of the relevant conduct must therefore be the material put forward in support of the request[192] by the Australian government, in whatever form it might take, having regard to the differing requirements of countries with whom we have extradition arrangements. Even if the provision erroneously assumes that every requested country will require to be provided with the "acts or omissions, or both, by virtue of which the offence ... is alleged to have been committed", it is at the least fair to assume that some kind of information will have to be forwarded to the requested country to enable it to reach a conclusion that its own version of the double criminality rule has been satisfied. For present purposes it is unnecessary to consider whether, if the provided information be insufficient for some reason to identify the necessary acts or omissions, it can be supplemented with any additional evidence for the purpose of ascertaining the relevant conduct. The essential purpose must be to ascertain the factual basis of the offence which is the subject of the request.

464. 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.

467. There should, I would concede, be some relationship between the primary offence and the additional offences permitted under the second clause of s.42(a)(i), in the sense that the prosecuting authority cannot pick out two or three isolated acts or omissions to justify the laying of some unconnected charge, but it is not necessary here to examine those limits: the connection between the relevant offences in the surrender warrant and thus the "offence", which may be identified as the basis of the request as referred to in the first clause of the sub-paragraph, with the ultimate counts at the trial is usually more than obvious. Nor is it necessary here to consider what should happen if the magistrate or tribunal in the requested country explicitly decides that the evidence does not support one or more of the offences in the request, or whether that should be resolved as a matter of construction or upon the basis of abuse of process. Here again there was no such finding, or at least the materials made available to this Court after this length of time did not evidence any such negative finding. On such an issue, if there were a doubt, it would seem that the onus rests upon the applicant as the party seeking the stay of the proceeding or the quashing of the verdicts, for the claim is the equivalent of a plea in bar: see Boog[193] and Buck[194]; and cf. Aughterson[195].

470. The end result in my opinion is that in construing s.42 (incorporating s.10(2)) one is concerned only with the manner in which the allegation is made and the acts and omissions which go to make up the allegation, not those which go to make up the constituent elements of the specified offence. That makes proper allowance for the variety of ways in which these allegations are made and the variety of documents which must be put forward to governments around the world to support claims for extradition. Bearing in mind again that different jurisdictions will view both similar offences and the manner of their proof in varying ways, this concentration on the facts, expressed in terms of "acts and omissions", seems to give the necessary flexibility to what otherwise seems to be an awkwardly expressed definition of the "conduct" constituting an offence. In short, the concentration of the statutory provisions in the present Act is still upon the facts ("acts or omissions") relied on for the purposes of the extradition proceeding and that is of significance for the purposes of both the double criminality and speciality rules as applied in this country.

473. One should here state that the preferred construction is consistent, or so it seems to me, with the general conclusions reached in the U.S., at least by federal courts, as to the ambit of the "specialty rule". I speak with some diffidence, as it is difficult enough to comprehend the basis of the rule as applied in Australia let alone that of another country, but, as stated earlier[196]

, the High Court seems to have placed considerable weight from time to time on U.S. decisions on extradition. If it be correct to draw any analogy, then the rules previously mentioned, as set out in the Restatement and Bassiouni,[197]

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]

480. The construction of s.42(a)(i) which I suggest is the correct one requires then the examination of the conduct put forward in support of the Australian government's request for extradition in September 1997.[204] The acts and omissions by virtue of which the Australian government alleged that the various offences had been committed have already been set out in some detail.[205]

The question which must then be asked is whether the offences of kidnapping and murder were offences of which the applicant could be convicted on proof of the conduct constituting, in the statutorily understood sense of that term, the offences of conspiracy to kidnap and conspiracy to murder, being the two relevant offences in the surrender warrant, which, although described necessarily in terms of the English law, can undoubtedly be taken as the equivalent of conspiracy to kidnap and conspiracy to murder in Victorian law, which were thus the offences in respect of which the applicant was surrendered. For the purpose of the enquiry as to what other offences may be the subject of a charge I am likewise of the opinion that, for reasons already stated, one can take a broad view of the factual basis relied upon by the Australian government, which consisted of the relevant acts and omissions for the purposes of the enquiry.

485. Before turning to the question whether the material in the present case satisfies the statutory description such as to justify the Crown bringing the two charges of kidnapping and murder against the applicant in these circumstances, it is necessary to deal with certain of the arguments which have been put forward to challenge the conclusions as to the proper construction of the section which I have reached. In the course of a thorough and well-worked out argument counsel for the applicant put forward an interpretation of the section which depended upon a strict reading of its language, in the sense that it assumed, if I may say so, that for the purposes of extradition law one could identify offences and the factual bases of such offences in a manner familiar with the common law. In the circumstances it was not entirely difficult to maintain an argument based on that assumption, for the relevant offences were offences in two common law jurisdictions, with each of which both counsel and the members of this Court had a passing familiarity, whatever amendments and alterations may have been made to English law in the past 20 or 30 years.

488. In the first place counsel contended that the trial of the applicant took place in breach of the rule of speciality, but he expressed that rule, or so it seemed, in the limited terms which would deny the relevant prosecuting authorities the power to try an extradited person "for any offence committed before his return other than one for which he was returned", unless that person had first had an opportunity to return to the surrendering country. It was further said that that rule, taken from the general statements in Barton, was "embodied wholly in s.42" of the Act. Although counsel referred also to s.10(2), the simple but limited expression of the speciality principle taken from Barton does not reflect the terms of s.42. That section now expresses the rule in relation to surrender of persons to Australia in terms which not only qualify the primary rule, but also contain a number of familiar riders to it, which I have discussed earlier. Apart from the question of consent, the section does not confine Australian prosecuting authorities solely to an offence which was the subject matter of the request for surrender, but contemplates other offences so long as they satisfy the test stated in the second clause of sub-para.(i) of s.42(a), as expanded by the terms of s.10(2). If what counsel intended to put, however, was that the rule set out in s.42 should be read in the light of some generally understood international rule of speciality, then I do not accept that that is an appropriate means of interpretation, having regard to the variety of ways in which the speciality rule has developed or been implemented in jurisdictions around the world. As already explained, there is no single common international principle of speciality to which one can turn, which is perhaps best demonstrated by the American Restatement's cautious explanation of the rule as seen from the perspective of the United States.[206]

Even the provisions of s.42 do not have universal application to extraditions to Australia, for the provisions of s.11 permit modifications of the rule by regulation, which in a considerable number of cases has been done to give effect to treaty arrangements, many of which in turn prescribe a differently expressed speciality rule to apply in relation to extraditions from those countries. A very high proportion of jurisdictions permit some flexibility extending beyond trial for the specific offence the subject of a request, but it is sufficient to say that I have been unable to identify any common rule which can properly be used to read down the language of s.42.

493. 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.

496. Thirdly, counsel, for the purpose of supporting his argument, engaged in a careful and detailed examination of the relevant constituent elements of murder and conspiracy to murder and kidnapping and conspiracy to kidnap, in order to show that the constituent elements of kidnapping and murder, as presented by the trial judge to the jury, were different in law from those which would have been required to prove conspiracy to kidnap and in particular conspiracy to murder. Such a method of reasoning is far too artificial and impractical in the sense that the double criminality rule forces one into an essentially factual enquiry which is directed in the first place to offences which will vary in content from jurisdiction to jurisdiction. Historically the enquiry, if a section of a statute or clause of a treaty has permitted alternative charges, has looked to the facts on which the surrender was granted and I can discern no reason why the legislature, in departing from the language in the earlier legislation, in fact chose to limit the subject matter of the enquiry by the language adopted in ss.42 and 10(2).

499. 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.

502. Not only is such an analysis artificial, but its very exposition shows how impractical it is to define the relevant "acts and omissions" by reference only to the constituent elements of each offence. Moreover the applicant argues, in the alternative, that the Crown did not even attempt to prove that which it was required to prove in order to establish that the applicant was guilty of conspiracy to murder. But the enquiry is not as to what the Crown attempted to prove at the trial but as to the conduct, namely the relevant acts and omissions, by virtue of which it had been alleged, for the purposes of the extradition proceedings that the relevant offences had been committed. It is the facts which constitute the allegations for the purpose of the request which are critical for, indeed, it is only in this rare case, where the point has not previously been taken, that one knows what the evidence was at the trial or how the Crown then sought to put the case. Ordinarily for the purposes of s.42 a stay will be sought in order to avoid a trial, upon the basis that there should be no trial, so that the enquiry must be as to the acts and omissions relied upon to seek extradition of the offender.

505. Finally I turn to an argument, to which reference has already been made, which was common to the contentions relating to both the murder and kidnapping counts. It was said in each case that the completed act of kidnapping and the completed act of murder were not required to be proved in order that the surrender offences of conspiracy to kidnap and conspiracy to murder, respectively, could be made out. Undoubtedly that is so, in that that particular element of the completed offence need not be established on a trial for conspiracy. That seems, however, to be no answer to the right of the prosecuting authorities to prosecute for any other permitted offence under s.42 if one concludes, as I have already, that one is not looking for constituent elements but more broadly at the acts and omissions by which it has been alleged for the purposes of the request that the offences were committed. In the present case the difference is highly artificial in that both the kidnapping and murder were clearly established and formed part of the essential circumstantial case against the applicant, whether one looks at the counts of kidnapping and murder or whether one looks to the charges of conspiracy to commit each offence which were the subject of the surrender warrant.

508. I should mention that, as part of his argument, counsel contended that the Act should be read strictly and, in case of ambiguity, in favour of the applicant. It is unnecessary to rehearse the authorities, some of which were cited, which support such an approach. When I have said that the relevant provisions should be approached broadly, I was not intending to deny that rule of construction, but I intended to indicate that, when dealing with a subject affecting this country's international dealings and which, at least in part, are affected by treaty arrangements, one should look at the whole of the statutory scheme to see what the legislature in fact intended. The following passage in the recent High Court decision of Cabal[210] is significant:

"Australia therefore has a very substantial interest in surrendering the person in accordance with its treaty obligations. If Australia fails, when requested, to return a person against whom there is probable cause for concluding that he or she has committed an extraditable offence, it breaches its obligations under international law. If Australia fails to comply with a treaty, the rules of international law entitle the other party to the treaty to repudiate or suspend the performance of its own obligations under the treaty. A repudiation or suspension by another country of its extradition treaty obligations to Australia would hinder this country's ability to enforce its own laws. In an era where much crime is transnational, the breakdown of international co-operation in apprehending criminals would be disastrous for the peoples of the countries concerned."

Now, although this is an application by a person in fact extradited to this country, the same considerations must apply to the interpretation of the relevant expressions where they appear in these sections dealing with extradition from Australia such as ss.19 and 22. An understanding of the significance of the speciality rule, as modified for this country, supports an interpretation of the critical sections in the way I have suggested and there is no relevant ambiguity.

513. There were a number of contentions as to the legal consequences of a failure to comply with s.42 but they need only to be addressed if, as a matter of the proper application of the section to the facts of the case, there was no right to charge kidnapping or murder after the applicant had been surrendered on the relevant two conspiracy counts.

517. It is unnecessary to examine in further detail the facts of the present case, nor the careful and detailed arguments put in support of the applicant's case. As I have said, the assumption behind each of those arguments was that they depended upon the constituent elements being the only relevant conduct for the purposes of s.42. Having rejected that contention, those specific arguments fall to the ground.

520. It remains only to ascertain in more general terms whether the speciality rule as adopted in s.42 of the Act has been complied with. If one takes a broad approach, because of the nature of the law relating to extradition, to questions of this kind, and if one is entitled to look at the whole of the acts and omissions by which it was alleged that which I have called the primary offences of conspiracy were committed, then in my opinion it has not been established that the prosecuting authorities were not entitled to bring the counts of kidnapping and murder against the applicant, nor has it been shown in any way that the principle of speciality as so defined in the statute has been violated. If one proceeds past the bare bones of the constituent elements of the relevant offences, as one must both in accordance with authority and upon a proper construction of the Act, then one is looking to a case in relation to each count which was founded upon a detailed circumstantial case in which numerous acts and omissions were relied upon in order to allege the commission of the subject offences. It is conceivable that less might have been alleged and set out in the Tragardh affidavit (although I would not wish to suggest that it was excessive in length), but the essential facts had to be stated in order that the Bow Street magistrate might carry out his function under the corresponding English Act, as will almost invariably occur whenever a request for extradition is made by Australia to an extradition country.

523. The basis of the allegation in relation to each charge doubtless consists of a considerable number of acts and omissions, but the totality made a compelling case both for the relevant findings in the United Kingdom on the substantive charges and for the continued prosecution of each of the relevant counts in Australia. It is a mystery to this Court which has never been explained how the learned magistrate came to certify only in respect of the conspiracy counts, as there seems to be no evidence that he deliberately reached a conclusion that the substantive counts were not made out. Whatever view one takes of his decision and the reasons for it, or perhaps of the reasons why counsel for the Commonwealth did not seek findings to support a warrant covering all offences, the factual basis submitted to the magistrate included all the necessary facts to establish counts of both the conspiracy and the substantive offences. As I have already said, the fact of the kidnapping and the fact of the murder were not isolated events separated by time and circumstance from the conspiracies. Although they need not have been proved as such to make out the conspiracy offences, the fact that the planned kidnapping and murder were carried out was a critical "act or omission" by which the conspiracies were alleged.

526. This prosecution case seems to me, if I may say so, to be the very case which was contemplated by the second clause of s.42(a)(i) in that one is concerned with essentially the same conduct. Because the task of applying the double criminality test, whatever its form, is ordinarily vested in magistrates or other tribunals in a similar range in the judicial hierarchy, apparent errors of misunderstanding may occur which can result in an inappropriate warrant for surrender being issued.[211] In many jurisdictions, though not in Australia,[212] there is no way of reviewing such a magistrate's or tribunal's finding,[213] although the offender may have certain remedies by way of habeas corpus or other judicial review by which that person may be entitled to challenge either the finding or more often the ministerial act of issuing the warrant. There is also the "remedy" of seeking consent from the requested country which is explicitly given by sub-paragraph (ii) of s.42(a). Some American jurisdictions indeed have posed a test as to alternative offences in terms of charges to which the requested country would not object.[214] Here it can be said that if the objection had been taken at an appropriate time, there could not be the slightest doubt that consent would have been sought and given before the trial got under way. The fact that that cannot now be safely done, shows how unsatisfactory it is that the point can now be taken. Indeed, in one Canadian case it has even been held that the conviction will be affirmed in the circumstances if there has been no substantial injustice: see R. v. Kelly (No. 2)[215].

529. 136 In consequence, having regard to the evidence and to the fact that no independent argument was put upon the relationship between the conduct relied upon for the substantive and the conspiracy offences other than that which depended upon proof of constituent elements, I am satisfied that the Crown was entitled to have the applicant tried for the substantive offences of kidnapping and murder, in that they were other offences upon which he could have been convicted on proof of the relevant conduct constituting the offences of conspiracy to kidnap and conspiracy to murder, as charged in the Australian government's request.

532. For these reasons, regrettably expressed at too great a length, I consider that the application should be dismissed.

537. In my opinion the application should be dismissed for the reasons stated by Ormiston, J.A.

[1] Contrary to s.63A of the Crimes Act 1958.

[2] It is understood that informal notice of the point was given some months earlier to the Crown.

[3] Over the years and in various jurisdictions the rule has taken a number of forms, as will be seen below (see esp. paras.[[]-[]). It is by no means clear why the Australian provision took its present form (which incorporates an interpretative provision in s.10(2) of the Act) and whether it is intended to comprehend or to modify more generally expressed statements of the principle.

4] The principle or rule is also frequently described in other jurisdictions as either the rule, principle or doctrine of specialty. According to Garner's Dictionary of Modern Legal Usage "specialty" is American usage, to be contrasted with English usage: however, compare Jones on Extradition and Mutual Assistance (London, 2001) para.2-048ff. and Shearer's Extradition in International Law (Manchester, 1971) p.146 fn.3.

[5] The maximum sentences at the time were life and 20 years respectively. The maximum sentence for conspiracy to commit each of the offences was identical to that applicable to the substantive offence.

[6] Section 42(a)(i) of the Act. The opening words of the relevant second clause of sub-para.(i) are in fact "any other offence ...". It was not contended that the United Kingdom had consented to the applicant being tried on the present counts although "consent" constitutes a third exception to the rule of speciality as embodied in the section. The text of s.42(a) is set out below in para.[[].

7] Court of Appeal (Phillips, C.J., Brooking and Ormiston, JJ.A.), unreported 29 January 2001.

[8] The passport was found and sent to an acquaintance whose telephone number was on a card inside the passport, a reward of $100 being promised. That money was paid, so that it might be said, in a perverse way, that there is even honour among "thieves".

[9] Unfortunately no copy of the request itself was available to this Court, but there seems little doubt that the subject offences were expressed in terms of State or Commonwealth (the drug offences) law.

[10] There were no such offences relevant to the present case.

14] In the summary in paras.[[]-[].

[16] Le Anh's body was not found until 7 June. Professor Cordner said that examination of the partly decomposed body could lead to no more precise conclusion than that he had been shot at some time between two and six weeks earlier.

18] It is not necessary to discuss to what extent such evidence was admissible at the extradition hearing.

20] The third charge alleged a conspiracy to blackmail Mrs Ha between 16 March and 7 June 1996 and the fourth a conspiracy "to be knowingly concerned in the fraudulent evasion of the prohibition on the importation" of heroin, as described in paragraph [[]. It will be noted that that charge did not describe any offence in terms of the offences under s.233B of the Australian ]Customs Act but used terms based on U.K. drug legislation.

[21] At the time of committal under s.9, a person must, under s.11(1) of the U.K. Act, be informed of the right to make an application for habeas corpus and sub-s.(2) requires that the person shall not be returned until fifteen days has expired or any habeas corpus application has been dealt with.

[22] See its terms in para.[[] above.

23] Although that section provides that regulations may be made by way of statutory instrument prescribing the form of the document, no new document was in fact prescribed under the 1989 Act, with the consequence that the forms prescribed under the previous legislation in the Fugitive Offenders (Forms) Regulations 1967 continue to have effect by virtue of s.17(2)(b) of the Interpretation Act 1978 (U.K.).

[24] The concept of "conduct constituting an offence" is further defined by additional qualifications set out in s.10(3) for the purposes of considering the expression or like expressions in ss.7, 16 and 19, which essentially refer to the "double criminality" test laid down in the Act for extradition from Australia. The use of the expression in those sections is of relevance in a way which will be discussed later: see paras.[[]-[].

25] [1974] HCA 20; (1974) 131 C.L.R. 477 at 483.

[26] [1999] HCA 46; (1999) 198 C.L.R. 111 at 128-129.

[27] See e.g. Pasini v. United Mexican States [2002] HCA 3 per Kirby, J. at para.[32] and the cases and sections cited in fn.30, save that I am not clear, with respect, why his Honour refers to s.42 in the context of a speciality assurance since that section is contained in Part IV of the Act dealing solely with extradition to Australia from other countries. It may be that the reference was intended for comparison so as to show, as arises in the present case, that the language of the relevant sections reflects mutual obligations undertaken by Australia and other "extradition countries" within the meaning of the Act.

[28] One may ask, rhetorically, what would have been the relevant elements if the extradition hearing had been before the Sheriff of Lothian and the Borders: cf. Stanbrook and Stanbrook: Extradition Law and Practice (2nd ed.) para.8.69 fn.116?

[31] That the enquiry conducted in this country under s.19 of the Act by a magistrate is merely administrative has been specifically reiterated only this year in Pasini.

[33] See in particular paras.[[]-[].

34] As well as for s.7(d) and s.16(2)(a)(i).

[35] [1971] I.R. 132.

[36] [1989] UKHL 6; [1990] 1 A.C. 579 at 589-590.

[37] [1985] HCA 82; (1985) 159 C.L.R. 1 at 18.

[38] Some of the more general descriptions of the double criminality rule appear in e.g. Gilbert: Aspects of Extradition Law (1991) pp.47-52; Stanbrook paras.2.01-2.09 and Shearer pp.137-149.

[39] The present form of the scheme can be seen conveniently in Stanbrook at pp.532-538.

[42] See the Extradition (Commonwealth Countries) Regulations 1988, as amended, and in particular Part I of the Schedule.

[43] See the quotation from AB (and Barton) set out in para.[[] above.

44] The word "part", though inelegant, seems generally to be used for this purpose, as may be seen by the language used in s.10(3) of the Act and in particular para.(b).

[46] The footnote to this proposition in the judgment (here deleted) refers to the 4th ed. of Halsbury's Laws of England and compares a provision in the Extradition Act 1870 (Imp.) (to which I am about to refer) and two more recent English decisions.

[47] See s.23(a) of the Extradition (Foreign States) Act 1966, and cf. s.22(a) of the Extradition (Commonwealth Countries) Act 1966, in which the word "lesser" was used.

[48] Cf. also the discussion in Zoeller v. A.G. (Cth) (1987) 16 F.C.R. 153 at 160-163, per Beaumont, J.: "other than one for which he was returned". The case was decided under the earlier legislation.

[49] At p.47 para.3.01, asserting that it satisfies the test of a "constant and uniform usage practised by states", as laid down in the Asylum case [1950] ICJ Rep. 266. To be fair, Stanbrook later says: "A strict definition of the speciality rule, prohibiting trial for any offence except the specific offence named in the Order for Return, is rare": para.3.08.

[51] He asserts that one of the rare countries to take this stance is Switzerland, saying however that this would mean that "the courts of the asylum state would interfere excessively in the criminal processes of the requesting state".

[52] Reference has been made in para.[[] to s.3(2), which set out the reciprocal obligation enforced by a "speciality assurance".

[54] [1931] 1 K.B. 527.

[55] [1886] USSC 243; (1886) 119 US 407.

[57] Ibid. Compare at 424. It was stated that they were adopting "the doctrine of publicists and writers on international law", which had been examined in some detail.

[58] Unreported (1888). An application for leave to appeal to the Court of Appeal was refused.

[60] Reliance was also placed on two statutory provisions which were given a remarkably wide meaning, having regard to the absence of any specific prohibition. The Court must have read them in the light of the "general principle". Cf. also Johnson v. Browne [1907] USSC 89; (1907) 205 U.S. 309.

[62] The word "state" used in the Restatement on this subject seems to refer to nation states, not states of the United States.

[64] The reporters' note on this issue (at pp.580-581) refers to Rauscher and a number of other United States decisions. The principle is similarly expressed in the Corpus Juris Secundum, vol. 35 "Extradition and Detainers" (as revised in 1999), in terms that the accused "cannot be tried for an offence other than the one charged in the extradition proceedings" unless the requested country waives application of the rule: see para.64 at pp.343-344. The qualification is stated in similar terms to the latter part of this quotation. Cf. the principle as stated in 31A Am. Jur. 2d paras.154-156 permitting trial "only for an offense on which the extradition request was based."

[67] The discussion in the whole chapter is replete with examples from many other jurisdictions such as Switzerland, France, Hungary and Argentina.

[70] Bassiouni at 364, stating, "The requesting state can prosecute the surrendered individual for all offences included in the offence charged and for which he was surrendered."

[72] Bassiouni at p.365, but arguably more controversially since it may reflect a view taken only in the United States.

[73] My cursory examination of the textbooks reveals only two relevant decisions in state courts, namely State v. Pang (1997) 132 Wash. 2d 852, 940 P. 2d. 1293 and Liebowitz v. Harrington (1989) 544 N.Y.S. 2d 189. In each case trial on a different charge was stayed, but in each case the treaty in question stated the rule in the narrowest terms.

[74] (1990) 112 A.L.R. Fed. 473-559, together with the cumulative A.L.R. Federal Supplement issued October 2000.

76] Sub-section (5) states that such excluded offences are those for which an order for return could not lawfully be made.

[77] A similar restriction to that contained in sub-s.(5) is contained in sub-s.(6).

[78] Section 18 relating to foreign countries permits prosecution for "any offence", whereas s.19, relating to Commonwealth countries, permits prosecution for "any lesser offence", consistent with the Commonwealth scheme.

[79] See paras.2-048 - 2-078 in particular.

[80] I have made no mention of Canadian law or what otherwise is a very valuable textbook, La Forest's Extradition to and from Canada (3rd ed., 1991), for the very good reason that s.33 of the Canadian Extradition Act 1985 baldly prohibits trial "for any other offence".

[81] Which is almost identical in terms to s.23 of the Extradition (Foreign States) Act 1966.

83] Section 42 is discussed at pp.252-258 and speciality more generally at pp.83-88.

[84] As adopted in the Extradition (United States of America) Regulations 1988 (as amended).

[85] Cf. R. v. Governor of Pentonville Prison ex p. Budlong [1980] 1 W.L.R. 1110 and Riley v. Cth [1985] HCA 82; (1985) 159 C.L.R. 1 at 17-18 per Deane, J. See esp. the discussion of the first clause of sub-para.(i) of s.42(a) at paras.[[]-[] below.

86] There are dicta in AB, esp. in the judgment of Kirby, J. (at 141-145), but they were expressed in a sentencing appeal to which the U.S.A. treaty applied and where the appellant had waived his rights, leading to the giving of consent by the U.S.A. The expression "conduct constituting any such offence" was not considered. There is one other dictum as to its meaning which will be referred to below: see Oates v. A.G. (Cth) [2001] FCA 84; (2001) 181 A.L.R. 559 at 581 para.[85] per Lindgren, J.

[87] (1989) 23 F.C.R. 282 at 294.

[88] [1999] FCA 1344; (1999) 96 F.C.R. 290 at 293.

[89] [1999] F.C.A. 1868 at para.16.

[90] [1988] FCA 450; (1988) 23 F.C.R. 472 at 519, on the meaning of the earlier provisions.

[94] [2000] F.C.A. 755 esp. at para.[16].

[95] See Zoeller (No. 2) at 299-300; Unkel v. DPP (Cth) (1999) 95 A.L.R. 44 at 49; Holt at 504 Proposition 1; McDade at paras.[14] and [16]; and Cabal v. United Mexican States [2001] FCA 427; (2001) 108 F.C.R. 311 at 329-330 para.[62].

[96] Except possibly Ireland and see the disapproving comments of Aughterson op. cit. at pp.80-82.

[97] Section 8(2) of the U.K. Act requires the furnishing of "particulars of the offence ... (including evidence ... sufficient to justify the issue of a warrant ...)". Cf. s.19(3)(c)(ii) of the Australian Act ("statement ... setting out the conduct ...)".

[100] (1998) 192 C.L.R. 403.

[101] See also as to theft the analysis of O'Dalaigh, C.J. in State v. Kelly at 139, which led to the conclusion that proof of theft according to the English Theft Act would not amount to larceny according to Irish law, and so would not satisfy the relevant double-criminality test - a conclusion which seems hard to justify. But cf. the judgment of Walsh, J. at 142-145 and the later explanation of O'Dalaigh, C.J.'s reasoning in Walsh, J.'s judgment in Wyatt v. McLoughlin [1974] I.R. 378 at 397-401.

[103] See his Honour's earlier discussion in Riley at 15-17.

[104] This would run counter to the analysis essayed by O'Dalaigh, C.J. referred to in fn.[, although it will be noted that Deane, J. appears to approve another part of the same judgment in ]Riley at 18-19.

[106] The decision of the majority may also here be disregarded as it depended entirely on a combined reading of the 1966 Act and the treaty with the U.S., and did not examine the principle of double criminality except in passing.

[108] Kelly at 141. The quotation in Riley at 18-19 contains a misspelling of the expression ex hypothesi, which is wrongly attributed to the judgment of the Irish Chief Justice.

[109] Part III of the Extradition Act 1965 (Eire).

[110] See s.47(2) of the Irish Act set out in Kelly at 134.

[111] See, apart from Wyatt, Wilson v. Sheehan [1979] I.R. 423 and Hanlon v. Fleming [1981] I.R. 489.

[112] [2001] 1 A.C. 84 at 94-95. That case dealt with provisions in the Backing of Warrants (Republic of Ireland) Act 1965 (U.K.).

[113] As then appeared in s.4(1A) of the Extradition (Foreign States) Act 1966.

[114] (1988) 81 A.L.R. 557 (Full Federal Court).

[115] A decision of the Full Federal Court on the provisions in the Extradition (Foreign States) Act 1966, which contains the dictum, at 519, already cited and discussed.

[118] (1902) Q.S.R. 53 at 57-58 per Griffith, C.J.

[119] [1906] HCA 20; (1906) 3 C.L.R. 682.

[124] Although his Honour refers to the "Extradition Act", he had already defined that by reference to the relevant 1966 Act.

[125] See paragraphs [[] and [].

126] (1988) 19 F.C.R. 347.

[128] It will be seen, moreover, that the High Court has on a number of occasions cited U.S. authority in support of propositions relating to extradition law in Australia: see e.g. Riley; DPP (Cth) v. Kainhofer (1995) 185 C.L.R. 528 and United Mexican States v. Cabal [2001] HCA 60; [2001] 75 A.L.J.R. 1663.

[129] (1973) 21 F.L.R. 469 (Full Court of the Supreme Court of the A.C.T.).

[130] (1974) 27 F.L.R. 417 (Fox, J.).

[131] [1985] FCA 129; [1985] 6 F.C.R. 95.

[132] Whether in its form before or after amendment (see Acts Nos. 17 and 18 of 1985 (Cth)).

[133] Consisting of Lockhart, Gummow and Hill, JJ.

[135] [1989] UKHL 6; [1990] 1 A.C. 579.

[137] See above at para.[[].

[140] (1990) 95 A.L.R. 44 at 48-50.

[141] [1994] FCA 1115; (1994) 49 F.C.R. 501.

[146] The Full Federal Court had also determined Todhunter v. USA [1995] FCA 1198; (1995) 57 F.C.R. 70 but, although it involved in part a comparison of the elements of the American and New South Wales conspiracy law, the decision depended upon a necessarily complex and elaborate reading in of the provisions of the USA treaty, as amended by the 1990 protocol, which specifically requires the request to be supported by "a statement of the law describing the essential elements of the offence for which extradition is requested": Article XI(2)(c). There was no discussion of presently relevant authority.

[147] Hill and Hely, JJ. Gyles, J. dissented as to the use which could properly be made of the indictment for the purpose of ascertaining the conduct constituting the offence.

[151] Thereby rejecting the suggestion of Aughterson at pp.67-69.

[154] See Heading 11, "Criminal Procedure", para.12.

[158] [1999] F.C.A. 1868 (French, Marshall and Kenny, JJ.).

[168] Possibly a remedy in administrative law might lie against the prosecuting authorities in that country, but I would not like to express an opinion on the English law relating to that question.

[169] See para.[[] above.

170] [2000] F.C.A. 755 at paras.[12] and [15].

[171] [2000] F.C.A. 1204 at [133].

[172] [2000] F.C.A. 1297.

[174] See Aughterson at pp.255-257 and the treaties there described.

[175] See para.[[] above. However, the relevant provision formed part of legislation based on the "enumeration" or list system of extradition: cf. Stanbrook paras. 1.18-1.22.

176] Cf. Aughterson at pp.69-70, 254-255 and Boog. Aughterson suggests at p.254 that the "offence" is that found by a magistrate or tribunal in the surrendering country and then made the subject of the surrender warrant, but I prefer for reasons appearing below (at paras.[[] ff.) to assume that the offence is that which is made the subject of the request.

177] See R. v. Kane [2001] VSCA 153 at paras.[46]-[62], esp. at para.[49].

[178] See para.[[] above. The provision confining the speciality rule to "lesser offences" is clause 15(2).

[180] See s.3(1)(c); and cf., e.g., Aronson.

[181] In contrast to the number of cases decided in the U.S.A., but where the application of the speciality principle depends either on particular treaties or the Rauscher rule.

[182] [1985] FCA 24; [1985] 4 F.C.R. 228; [1985] 6 F.C.R. 95 (F.C.).

[183] Section 22(a)(i) of the Extradition (Commonwealth Countries) Act 1966.

[184] (1981) 76 Cr.App.R. 120.

[185] Made pursuant to the Extradition Acts 1870 to 1935 (U.K.).

[186] Buck v. The King [1917] 38 D.L.R. 548 (S.C. of Canada), although cited to us, is equally of no present assistance, for, as noted earlier, the Canadian extradition statutes have always limited extradition to solely the offence which is the subject of the request.

[188] If only because the decision made by the magistrate or tribunal in applying the double criminality rule will have concentrated on an offence expressed in local terms.

[189] [1891] 45 Fed. Rep. 352.

[190] [1917] 39 D.L.R. 551.

[191] [1918] 42 D.L.R. 330.

[192] Even if "offence" be construed as that in the surrender warrant, essentially the same information will have supported the necessary finding.

198] [1995] USCA1 338; (1995) 58 F.3d 754 at 767.

[199] [1989] USCADC 246; (1989) 879 F.2d 888 at 895-896.

[201] [1998] USCA1 56; (1998) 135 F.3d 200 at 204-206.

[202] In circumstances not unlike the present there were originally seventeen counts, but the Attorney for the United States pursued extradition only on that single count, which was made the subject of the relevant surrender warrant.

[204] No copy of the request itself was provided to this Court but in the Bow Street magistrate's reasons it appears to have been dated 1 October 1997. The contents of the request appear from my earlier account of the extradition proceedings, the specific offences being sufficiently identified in Det. Sen. Con. Tragardh's affidavit.

[205] See paras.[[]-[] above.

207] See s.3(b) and (c) and cf. the observations of the High Court in U.S.A. v. Cabal at 1675 para.[58].

[208] I include, of course, the statutory variants of those well-known common law offences.

[209] Cf. R. v. Franklin [2001] 2 V.R. 9.

[211] I have already mentioned that it is not here necessary to consider what should occur if a charge is held specifically to offend the double criminality rule, but one assumes that, in one way or another, it could not be pursued.

[212] See the general right of appeal given in s.21(1) of the Act.

[213] See in the U.S.A. e.g. Bassiouni at pp.579ff, "There is no direct appeal from the decision of the judicial officer"; and "Case law and statute clearly define the narrow scope of habeas corpus review" (at p.579). See also In the Matter of Mackin [1981] USCA2 1058; (1991) 668 F.2d 122. As to U.K. procedures, there is now, for the first time, a statutory right to habeas corpus (see s.11 of the U.K. Act) and the requesting state is given a right of appeal under s.10 of the U.K. Act; see Stanbrook Ch.9.

[214] See Fiocconi v. A.G. (U.S.) (1972) 462 F.2d 475; and cf. R. v. Nicholle, exp. Boog.

[215] [1916] 27 C.C.C. 140, as noted in La Forest p.235, although I have already observed that the Canadian extradition law has a number of differences from our own.