KEVIN WEBB Second Respondent

• ee FRANK MACKENZIE Third Respondent

Applicant AND: CLYDE EVANS First Respondent KEVIN WEBB Second Respondent FRANK MACKENZIE Third Respondent ERIC QUARMBY Fourth Respondent

I am hearing together two separate applications under the Administrative Decisions Judicial Review) Act 1977 ("the Judicial Review Act"). The cases were dealt with together by the learned magistrate whose decision is the subject of the applications. He is Mr. Mackenzie, the third-named respondent, the other two respondents heing magistrates who dealt with the

matter at earlier stages. The two applicants are said to have

been associated in illegal drug activities in the United States

of America, and the evidence, which has to be kept distinct, nevertheless shows that for the most part their activities were

Requests were made by the United States of America pursuant to the Treaty on Extradition between it and Australia, which came into force on 8 May 1976 ("the Treaty"), for the extradition of the applicants to that country, to be dealt with on alarge number of drug charges. The charges were on an indictment found by a grand jury. It is sufficient for the moment to say that the charges relied upon were in relation to the importation of drugs, and possession of them with intent to distribute. The drugs were marihuana and/or hashish. The requests were made through diplomatic channels, in accordance with Art. XI(1) of the Treaty, and were accompanied by the documents referred to in that Article. Warrants for the

apprehension of the applicants (in the Extradition (Foreign

States) Act 1966 ("the Act") referred toas "fugitives") were issued by a magistrate pursuant to 5.16(1)(b) of the Act. The Attorney-General did not direct those warrants to be cancelled, as he could have done (see 5.16(5)), but did inform Mr. McKenzie that a request had been made (see s.15(1)(b)). In due course, being found in New South Wales, they were apprehended and brought before a magistrate in Sydney. The magistrate proceeded under the extradition legislation (see s.17 of the Act and Arts. VI, X& and XI(3) of the Treaty) and, after a hearing at which all parties were represented by counsel, ordered both of the present applicants to be commited to prison to await the warrant of the Attorney-General for their surrender. This was on 29 July of this year, and the applicants have been in prison since. I understand that habeas corpus applications were made in respect of the applicants, and that they have come before the Supreme Court of New South Wales, but have not to date been proceeded with (note secns. 18 and 19 of the Act). The application of Mr. Riley, umder s.5 of the Judicial Review Act, was filed on 5 August 1983, that of Mr. Butler under the same section on 11 August 1983. Although decisions made by other respondents at earlier stages are referred to in the applications, the only ones to which arguments have related are the decisions to commit to which I have referred. The same counsel appeared for all respondents. Amended applications were filed on the second-last day of the hearing before me, to support arguments already put. A number of grounds are relied upon, and I will deal with them in

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Something should first be said of the legislation and

the Treaty. The previous relevant legislation comprised the Imperial Extradition Acts 1870 to 1935, but the operation of these has been excluded by s.6(1)(a) of the present Act, with a

saving in respect of the operation of the Fugitive Offenders Act 1881.

A "fugitive" is defined in s.4(1) to mean "a person accused of an extradition crime that is alleged to have heen

"Extradition crime" is dealt with in s.4(1A), which was

"(1A) An offence against the law of, or of a part of, a foreign state is an extradition crime for the purposes of this Act if, amd only if, the act or omission constituting the offence or the equivalent act or omission, or, where the offence is constituted by two or more acts or omissions, any of those acts or omissions or any equivalent act or omission, would, 1f it took place in, or within the jurisdiction of, the part of Australia where the person accused or convicted of the offence is found, constitute an offence against the law in force in that part of Australia that -

(Bb) would be so described if the description concerned contained a reference to any intent or - state of mind on the part of the person committing the offence, or to any circumstance of aggravation, necessary to constitute the offence."

"LO. (1) Where, after the commencement of this Act, an extradition treaty (including an extradition treaty that affects or amends an earlier extradition treaty) comes into force between Australia and a foreign state

(a) if this Act applies in relation to the foreign state at the time of coming into force of that treaty - the regulations May provide that this Act applies in relation to that state after that time subject to such limitations, conditions, exceptions or qualifications as are necessary or desirable to give effect to that treaty and are specified in the regulations; or"

This paragraph is 'appliéable to the situation vis a vis the United States. The Extradition (United States of America) Requlations came into effect on 27 August 1976. Requiation 3(3)

(3) The Act applies in relation to the United States of America subject also -

(b) to the condition that any other limitations, conditions, exceptions or qualifications to which the application of the Act is subject by reason of sub-section 9(2) of the Act cease to have effect,

after the time of coming into force of the Treaty."

The Treaty is set out in the Schedule to the Requlations.

It "is not necessary to consider the limitations and

conditions referred to in s.9(2) of the Act; they were those to

which the operation of the Orders in Council under the old Acts were subject, and which were continued by that suh-section. The relevantly operative part of the Regulations 1s that the Act is to apply "subject to the Treaty". | The justification relied upon for this apparent fracture of established constitutional principle is, seemingly, in s.10(1)(a) of the Act. This refers ta "such limitations, conditions, exceptions or qualifications as are necessary or desirable to give effect" to the Treaty. There seems to me to be some slight of hand when one turns to the words of the sub-regulation, but I would read "subject to" in the sense of the language used in the Act. A provision in somewhat similar language to that used in the Act is not uncommon in extradition legislation (s.5 of the Extradition Act 1870; see Beese v. Governor of Ackford Remand Centre and Federal German Republic C19731 1 W.L.R. 1426, at p.1428; R. v. Governor of Pentonville Prison Ex Parte Dowse C19833 2 W.L.R. 791, at p.795; and note Grace Brothers Proprietary Limited v. The Commonwealth (1946) 72 C.L.R. 269). The effect of the Regulation is of course not to enact the Treaty, but to impose qualifications on the operation of the Act. A qualification may arise from a positive provision in the Treaty which impliedly overrides a provision of the Act, in which event the intention must be that the positive provision becomes operative. The Act is a general one, which prescribes some matters but leaves to the Regulations their application to

particular Treaties, as they are entered santo. There are

nevertheless bound to be difficulties in subiecting (in the sense

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mentioned) a municipal law to the terms of a bilateral

The question whether a person should be extradited is not left to a magistrate. It is gegarded as affecting sovereign rights and privileges, and the decision is in our country left to the Attorney-General. The request for extradition comes formally, through diplomatic channels, and is to he accompanied hy certain documents (see Art. XI(1) and (2) of the Treaty). Commonly, it will rest: with the ~attorney-General, on receipt of the request, to decide whether a warrant for the apprehension of the person should issue, and to authorise its issue by a Magistrate (s.15 of the Act). The issue of the warrant requiring the person to be surrendered to the foreign state (s.18(2)) is a matter for the Attorney-General. He is required to consider

the matters mentioned in s.14, and to act accordingly, and has,

The role of the magistrate when a person has been apprehended and brought hefore him, is dealt with in s.17(6) of

"(6) If the person was apprehended under a warrant issued in pursuance of an authority by the Attorney-General ina notice under paragraph (a) of sub-section (1) of section 15 or tne Magistrate receives a notice by the Attorney-General under Paragraph (b) of that sub-section and -

(a) there is produced to the Magistrate a duly authenticated foreign warrant in respect of the person issued in the foreign state that made

(2) in the case of a person who is accused of an extradition crime - such evidence as would, in the opinion of the Magistrate, accerding to the law in force in the State or TerrYtéry" of which he is a Magistrate, justify the trial of the person if the act or omission constituting that crime had taken place in, or within the jurisdiction of, that State or Territory; or

(ii) im the case of a person who is alleged to have heen convicted of an extradition crime - sufficient avidence to satisfy

(c) the Magistrate is satisfied, after hearing any evidence tendered by the person, that the person is Jliable to he surrendered to the

foreign state that made the requisition for the surrender,

the Magistrate shall, by warrant in accordance with Form 5 in Schedule 2, commit the person to prison to await the warrant of the Attorney-General for his

surrender but otherwise shall order that the person be released."

In the Treaty the test of the sufficiency of evidence is expressed as being such as would "justify his trial or committal

for trial" (Arts. VI and XI(3)). Art. X1I(5) describes the

proceedings as "the examination of the request for extradition".

It is agreed between the parties, in my view correctly, 'that the Magistrate's role is an administrative one. He is part of the administrative machinery whereby a decision is made, and,

if appropriate, action 4s taken for the extradition of the

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"fuditive". It ius not disputed that his decision to issue a

warrant of committal in this case was a "decision of an administrative character made under an enactment" within the meaning of the Judicial Review Act.

The task of this Court is to determine whether there was an error of law in respect of the proceedings before the

Magistrate of the nature referred to ins.5 of the Judicial Review Act. Counsel for the applicants have adopted each other's arguments, so far a8 relevant to their respective cases.

Particular matters relied upon, expressed in my own words, are as

3. That the magistrate erred in not following the procedure, mutatis mutandis of the Justices Act

4. That there was a denial of natural justice in that the magistrate admitted all the evidence tendered

by the Commonwealth, subject to the objections made

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at the time by counsel for the present applicants, but did not state his decision thereon before counsel addressed, or did not, alternatively, give counsel an opportunity to address after he had reserved his decision and before making the orders

A starting point is to determine whether the crimes alleged, or one or more of them, constitute extraditable crimes. The Act and the Treaty have lists of crimes for which extradition may be granted, and they differ ina number of respects. Both the Treaty (im Art. VI) and the Act (in s5.4(1A)) provide for offences (or "acts or omissions") which in the requested State are "equivalent". Section 4(1A), after referring to acts or omissions constituting the offence charged, refers to equivalent acts or omissions, while Art. VI refers to the offence charged or its equivalent. Art. II of the Treaty commences (in para. (1))

"(1) Persons shall be delivered up according to the provisions of this Treaty for any of the following offences provided these offences are punishable by the laws of both Contracting Parties

by a term of imprisonment exceeding one year or by death:" --

.

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Item 28 in this paragraph refers to an offence "against the laws relating ta narcotics, dangerous drugs or psychotropic

substances". In counts land 2 charged by the United States,

marihuana and hashish are referred to as "non-narcotic controlled substances" (see Title 21, s5.802(6), (15) and (16) of the United States Code). In each of the other counts the drug in question is referred to as a "controlled substance". The nomenclature may

be one of convenient statutory classification rather than

pharmacological definition: TA'the papers accompanying the erequest for extradition there are several references to the

effences charges being "narcotic offences". An entry in 28

Corpus Juris Secundum - Drugs and Narcotics Supplement 5.3, at pp.1LO-1ll under the heading "marijuana" helps to explain the

"The word 'marijuana' is of Mexican origin, and is variously spelled as 'mariguana', 'marijuana, ' 'marihuana.' Marijuana is not a scientific term; it is the Mexican name for 'cannabis sativa,' which is more commonly known as 'Indian hemp.' It is defined to mean a habit-forming substance used by addicts in the form ef cigarettes; the narcotic product of the plant cannabis sativa; and while marijuana is not technically @ marcotic, it is treated for all purposes just like an opiate, and usually it comes within such statutory terms as 'narcotics' or 'narcotic drugs,' but not if it is expressly excluded therefrom, and where it is not classified as a narcotic or narcotic drug 1t may be classified as a dangerous drug, and marijuana may be classified as an injurious substance."

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"It is within the power of Congress or a state to classify marijuana as @ narcotic drug, or as a controlled substance, and to oroscribe its possession

I was referred to Blakiston's New Gould Medical Dictionary (2nd

ed. (1956) at p.778) which includes marihuana and hashish under

the definition of narcotic drugs. It is noteworthy, however, that the Jrd ed. (1972) of what appears to be the successor to this. work, does not include those substances within the definition of narcotic (see at p.1008). There was no expert evidence before the 'magistrate"Which would help him make a finding on the question whether the subject drugs are narcotics, or even on the question whether the term has a precise scientific meaning. It can be argued that the reference in item 28 of the Schedule to the Treaty is to laws which relate to substances which are in fact narcotics, as distinct from laws which deal with what the laws in terms classify or designate as narcotics. It seems unnecessary for me to resolve this question, so far as the Treaty is concerned. In the present case the drugs are not included in the definition of narcotics in the United States Code, and I think [I should not proceed in reliance on the "narcotics" part of item 28. Although reference was made by counsel for the Commonwealth to the possibility of the drugs being "dangerous drugs", there was no precise material before the Magistrate which would assist him to such a conclusion, and he

It is therefore necessary to look beyond para. (1) of

"(2) Extradition shall also be granted for any other offences that are made extraditable under the extradition laws of Australig, and which are felonies under the laws of the United States of America."

In applying this paragraph, it is necessary to have regard to

"(5) Tf extradition is E@quested for any offence mentioned in a preceding paragraph of this Article and that offence is punishable under the laws of both Contracting Parties by a term of imprisonment exceeding one year or by death, that offence shall he extraditable under the provisions of this Treaty whether or not the laws of both Contracting Parties would place that offence within the same category of

offences made extraditable by that preceding paragraph of this Article and whether or not the laws of the

requested State denominate the offence by the same terminology. "

Article I1I(2) requires reference to the terms of the Act. I have set out s.4(1A), which deals with extradition crimes

and relates to Schedule 1. Item 34 of that Schedule reads:

"34. An offence against the law relating to dangerous drugs, narcotics or psychotropic substances."

The question posed is whether the act "constituting the offence" (or its "equivalent") would, if it had taken place in

New South Wales, constitute an offence against a law in force in

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that State which is described in Schedule 1. There is first a question as to the nature of the drugs. I have been referred by counsel for the Commonwealth to s.233B of the Customs Act 1901, sub-s. (1) of which creates a rather comprehensive series of affences relating to "prohibited jmports". Sub-section (2) says that for the purpose of 5.2338, "prohibited imports" are "narcotic goods". The section was amended in 1974 and 1979 but not in a way affecting the present proceedings. In s.4(1) of the Customs Act "narcotic goods" are defined as meaning "goods that consist of a narcotic substance". In the same sub-section "narcotic substance" is defined to mean "a substance or thing the name of which is specified in column 1 of Schedule VI or any

other substance or thing for the time being declared ...

Schedule VI, in the first column refers to cannabis, cannabis resin, and tetrahydrocannabinols. It is agreed (and is

the evidence) that hashish is the same as cannabis resin, that Marihuana is cannabis, and that tetrahydrocannabinols is the active ingredient of cannabis. The present Schedule VI was introduced by Act No. 154 of 1977, which came into force on 10 November 1977. The previous Schedule VI, introduced by Act No. 134 of 1971, listed cannabis and cannabis resin, but not tetrahydrocannabinols. "Cannabis", "cannabis fibre", "cannabis plant" and "cannabis resin" were defined in s.4(1) as they now are. The definition of "narcotic goods" and "narcotic substance" were the same as they now are. By s.233B(1) of the Customs Act

the importation of a prohibited import, possession of a

prohibited import, and possession of a prohibited import reasonably suspected of having been imported in contravention of the Act are offences and are by 5.235 punishable by not less than one year's imprisonment. we

The offences charged include possession with intent to distribute the drugs. I doubt whether any of the offences under the Customs Act can be regarded as an equivalent to that offence. The learned magistrate turned to the Poisons Act 1966 (N.S.W.). Section 21(1)(a) of that Act makes possession for supply an offence (see definition of "supply" in s.4), and plainly includes the drugs now in question. The Act does not, however, refer to

the drugs as being narcotic. There is no evidence which says

that those drugs are, or are generally understood to be narcotic.

A question can be asked whether, when item 34 is using descriptive words, the reference is to drugs which, according to general or scientific meaning, satisfy the description, or on the other hand, to drugs designated in the legislation as drugs of that description, or whether it is sufficient if one or other of these tests is satisfied. This is not an easy question to answer, and I do not know that it should receive the same answer in relation to each item. When dealing with the Customs Act, there is a statutory definition which, so far as appears, is not an artificial one. When considering the application of the Poisons Act, there is no statutory definition which uses the

descriptive term "narcotic". I think, however, that the

magistrate, considering the matter in an administrative capacity,

is entitled to take account both of the medical dictionary definition and of the Customs Act definition. He is also

entitled to consider the terms of the Narcotic Drugs Act 1967 and the international Convention on Narcotic Drugs 1961, which 1s the

I am of the view that possession for supply (s.21(1)(a))

is an equivalent to the offence charged under the U.S.A. law of

possession with intent to distribute. It matters not, in relation to this situation, whether one compares acts or OMissions (vide s.4(1A)) or "offences" (vide Arts. II, VI).

There has not been any argument that "possession" is a state, as compared, in ordinary usage, with "act" or "omission" (cf. Beckwith v. The Queen (1976) 135 C.L.R. 569, at p.575). Nor has there been argument as to the application, as an equivalent, of

It follows in my view that the specific charges I have been considering are extraditable offences under the laws of Australia. Returning to Art. II(2), the evidence is that all the offences charged are felonies in the United States. They are also punishable by not less than one year's imprisonment. The matters charged therefore constitute extraditable offences under

There are three other offences charged against each

applicant, two of conspiracy, and the third an offence described

as "continuing criminal enterprise". I shall deal later

So far as ground (2) is cepcerned, it was said that, although the magistrate decided that there was a prima facie case (in relation to each count) he did not apply the test for which the legislation and Treaty provide. I have already set out

s.17(6)(b) (i). Article VI and Art. XI(3), to which I have

"Extradition shall he granted only if the evidence is found sufficient.: according to the laws ain the territory where the person whose extradition is requested is found, either to justify his trial or committal for trial if the offence with which he is charged or its equivalent had been committed in that territory or to prove that he is the identical person convicted hy the courts of the requesting State."

"(3) When the request relates toa person who has not yet been convicted, it must also be accompanied by

a warrant of arrest issued by a judge or other judicial officer of the requesting State and by such evidence as, according to the laws of the requested State, would

justify his trial or committal for trial if the offence had been committed thers, including evidence proving

the person requested ts-.the person to whom the warrant of arrest refers."

While s.17 of the Act says simply that the evidence is

to be such as to "justify his trial", the phrase in the Treaty (twice used) is "justifying his trial or committal for trial". The terms used would include summary trial, or trial on indictment, both of which, as it seems to me, are covered by the scheme. No reference is made anywhere to "prima facie case". It is, however, a phrase in common use, not least of all in relation to extradition matters where the relevant legislation (e.g. the Extradition Act 1870) uses the same language as the Treaty and

Act now before me. For example, Lord Wilberforce used the phrase

in this context in Government of _Australia v. Harrod [1975] 1 W.DL.R. 745, at p.748. In Beese (supra.), Lord Diplock treated the words "found sufficient to justify committal" as equivalent to "a prima facie case of guilt" (see at p.1429). In R. v. Governor of Brixton Prison ex parte Armah (1968) A.C. 192, which was a case under the Fugitive Offenders Act 1981, Lord Reid said, at 9.229, what must with respect be abundantly clear, namely that the phrase "prima facie" "is not self-explanatory: what is it that the case shows prima facie or at first sight?". In R. v. Governor of Brixton Prison Ex Parte Schtraks C1964] A.C. 556, the test posed by the legislation was expressed by Lord Reid (p.580)

",.. the proper test for the magistrate to apply was whether, if this evidence stood alone at the trial. a reasonable jury properly directed could accept it and find a verdict of quilty."

The magistrate neard extensive argument concerning the

Act and Treaty, and their application, without any diminution or qualification of the prescribed test being suggested, and it seems to me that I should not assume that in reaching his decision he failed to apply that test. On the contrary, it seems to me from a reading of his decision that he was conscious of the

As to ground (3), the matter was put to me by respective counsel for the applicants on the basis that what a magistrate is required to do, in a case such as the present, is to follow the

procedure of s.41 of the Justices Act 1902 (N.S.W.) and

particularly sub-s. (6) thereof. While proceedings under the Act or Treaty are no doubt similar in some respects to those of committal proceedings, there is, in my view, no such requirement. [Tt is to be noted that s.17(6)(b)(i) says "justify the trial", without reference to committal. It is not to be assumed that the added reference in the Treaty to "committal for trial" is intended to invoke the provisions of the Justices Act. Both Phrases are dealing with the measure of proof, and not with procedure. The magistrate does not of course commit for trial, and. there can be na trial of the offence which he considers. No

It is of interest, and, I think of some significance in relation to the arguments submitted, that s.9 of the Extradition

Act 1870 has been omitted in the Australian Act. It reads as

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"9, When a fugitive criminal is brought before the police magistrate, the police magistrate shall hear the case in the same manner, and have the same jurisdiction and powers, as near as may be, as if the prisoner were brought before him charged with an indictable offence committed in England.

The police magistrate shall receive any evidence which may be tendered to show that the crime of which

the prisoner is accused or alleged to have been convicted is an offence of a political character or is not an extradition crime."

The question whether the offence charged is of a political character is now, in this country, one for the

Im relation to ground (4), it seems to me that there was not a denial of natural:justice. Submissions were made at length before the magistrate concerning the admissibility before him of certain passages in the documents, and objections were taken on Many occasions. When it came to final addresses, counsel representing the applicants dealt with the effect of the evidence, allowing for the submissions made as to its admissibility. They were invited to out submissions in reply. No objection was taken at any time to the magistrate considering at the one time the evidence as tendered, its admissibility, and its effect. .The course he followed is a not uncommon one. The Magistrate in his final reasons dealt separately witn objections based on hearsay, relevance, opinion evidence and the use of

marrative form. He excluded what he understood to be hearsay

In relation to ground (5) of the grounds I have set out, a major submission made on behalf of the applicants was that parts of the transmitted material, although duly authenticated, should not be accepted as evidence upon which the magistrate

could base his conclusion, because they did not satisfy the rules

of evidence applicahle to court proceedings in New South Wales.

(a) a document, duly authenticated, that purports to set out testimony given on oath, or declared or affirmed to be true, by a person in a foreign state is

"(5) The warrant of arrest and deposition of other evidence, given under oath or affirmed, and the judicial documents establishing the existence of the conviction, or certified copies of those documents, shall be admitted in evidence in the examination of the request for extradition when -

(b) ain the case of a request by the United States of America - the warrant, if any, bears an original signature, or the other documents are certified, by a judge, magistrate or officer of the United States of America and, in any case, are authenticated by the oath of a witness or sealed with the official seal of the Department of State on behalf of the Secretary of State or ef the Department of Justice on behalf of the Attorney-General."

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It is difficult to see how a document is admissible as evidence of the matters stated therein (s.26(1)(a)), or 1s to be admitted in evidence (Art. XI(5)), if a part or parts of it are at the same time not open to be considered. Put another way, there seems no justification for qualifying or limiting the ordinary meaning of "admissible". A particular statute may of course show that "admissible" is to be read in a qualified sense, but in my view there is not in the present Act, or Treaty, any such provision, or context. R. v. Governor of Pentonville Prison

Ex Parte Kirby [19791 1,W.L,R. 541 was a case under the Fugitive

Offenders Act 1967 (Eng.), which contains a number of provisions

quite dissimilar from those presently under consideration. Authenticated documents are under s.1l of that Act to be "admissible in evidence of the matters stated therein". Croom-Johnson J., with whom Lord Widgery C.J. and May J. agreed, said of the section (at p.544): "This section is dealing with procedure and method but not with admissibility". The compulsion to reach this conclusion apparently flowed from the fact that the proceedings were to he before a court, so described, which was to be constituted by a magistrate, and that proceedings were in general required to take place as they would before such a tribunal. Even so, what was said, and decided, seems inconsistent with the views expressed by Lord Diplock (with whom the other Law Lords agreed) in Fernandez v. Government of Singapore £19713 1 W.L.R. 987, at p.992. That the words in the

Extradition Act 1870, which our Act follows on this point, are to

be given their ordinary meaning, as meaning admissible in

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evidence, to the point where they may without more be acted on, is apparent from what was said by Lord Diplock in his leading judgment in Dowse v. Governor of Pentonville Prison Ex Parte Passingham £19837 2 W.L.R. 791, at 9.796. eee | A further or alternative aspect of the argument on this ground involves the submission that the documents made admissible by 5.26 are to be admitted subject to the application of the rules of evidence applicable to curial proceedings. This is doubtless a result which could he brought about by clear enactment, but there is no provision, or context, which has this result. It would not he sufficient to provide in the Act that the rules of evidence applied, umless there were added the hypothesis "as if the magistrate were sitting as a court of law". In the absence of a clear provision to this effect, it would not

be at all certain if, or how, statutes dealing with evidence, or

The fundamental difficulty with the submission is that the magistrate hears and deals with the application before him in an administrative capacity. He is appointed, by name, as a person to exercise power under the Act (see s.24(1)). There is no reference to his comstituting a court, nor is his decision subject to appeal as if he were. The reference to "evidence" is quite neutral. It is commonly used in relation to material to be presented toa tribunal; see, for example, the Administrative

Appeals Tribunal Act 1975, and, indeed, the Judicial Review Act

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itself. The fact that a decision has to be reached on the question whether there is evidence which would justify trial, in this case in New South Wales, does not involve a conclusion that in reaching the decision, the tribunal has to apply rules of evidence as if it were sitting as ,a_ court to decide the matter. The fact is, of course, that decisions of that nature have commonly to be reached by Attorneys-General or by administrative officers, on the basis of the material they have. The circumstance that in some respects the tribunal has to act judicially (ags_in the observance of the rules of natural justice) does not alter the position. It has many times been held that hearsay can be admitted by tribunals in those circumstances (Wilson v. Esquimalt and Nanaimo Railway Co. (C19223 1A.C. 202, at pp.212-213, and other cases cited by Professor Campbell,

"Principles of Evidence and Administrative Tribunals", Well and

Truly Tried, ed. Campbell and Waller (1982) at p.50, n.50).

Professor Wigmore deals at length with the topic of the application of the rules of evidence to administrative tribunals in secns. 4a to 4n of Chapter I of his work (see 3rd ed. (1940) ato pp.25 et seq.). He refers to the rules as the "jury-trial rules", it being his view that they owe their origin to trial by jury. This view has been challenged, but it is not material to pursue the matter. At p.24 of the work cited (s.4) he deals

"Extradition. For the same reasons of principle, extradition proceedings are not governed in strictness

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by the jury-trial rules of Evidence. Moreover, here the additional reason obtains that the evidence is brought from outside the jurisdiction, and the procurement of evidence is thus likely to be hampered by the lack of power or practicability, as well as by the possible differences of law in another system."

At p.31 (s.4b), after quoting Maine at length, the learned author

"These sagacious observations of Sir Henry Maine may serve to warn us that any attempt to apply strictly the jury-trial rules of Evidence to an administrative

tribunal acting without a jury is an historical anomaly, predestined té probable futility and failure."

These words have been cited with approval by Schwartz, Administrative Law (1976) at pp.334-335. To complete citation of American works, I refer to American Jurisprudence 2nd ed., vol. 31, s.58 (p.964), in a chapter dealing with Extradition, under

"Strict rules of evidence are not applicable in international extradition proceedings. To be admissible on the issues involved in such proceedings, evidence need not meet the requirements generally observed in criminal, ar in civil, trials. Accordingly, evidence which is ordinarily excluded under the hearsay rule may be admitted in extradition hearings."

In the 1982 supplement to this volume reference is made (at p.162) to the recent case of Escobedo v. United States (1980) 623 F 2d. 1098 where the Fifth Circuit Court of Appeals strongly

confirms this position (at p.1103). In 31 Am. Jur. s.59 (p.965)

• = Pa . , . rnc ns ae nsatilaer rel ta Naitaadlinced te i Oi Genin RfARits fs Nate nae ake ee Aa ae SEP RA Ne rt te te et ena etme H+ er honetinemiaml emi amrtatinn tens Art

under the sub-heading of "Sufficiency", the further observations

"The statute regulating international extradition procedure provides that an alleged fugitive may be surrendered om requisition of a foreign government where the evidence is deemed sufficient by the examining magistrate to sustain the charge in the complaint. But it is not the function of the presiding judge or magistrate to determine whether the accused is guilty of the crime charged beyond a reasonable doubt; probable cause of guilt is all that need be established. Accordingly, statutory requirements are held to be satisfied if evidence is presented that would justify the apprehension and detention of the accused for trial.had the crime been committed in the asylum ~ State. Indeed, godd'faith to the demanding government is said to require the surrender of the accused if there are presented such reasonable grounds for supposition of guilt as to make it proper that the alleged fugitive be tried".

There is English authority on the matter. In re Counhaye C18737 L.R. 8 Q.B. 410, a case under the Extradition Act

of 1870, Blackburn J. said, in relation to one submission

"We are, I believe, also all agreed that 5.14 makes depositions properly authenticated evidence in proceedings under the Act, whether they are in the particular charge or not, and whether taken in the presence of the person charged or not. In most European states, I believe, it is not the practice to take the depositions in the presence of the accused; at all events, the law is indifferent in the matter. I would add that it is for the maqistrate to qive what weight he thinks proper to depositions so taken."

In R. v. Zossenheim (1920) T.L.R. 121, it was decided in England

by a Divisional Court that the rules of evidence did not apply to

the admissibility of what is set out in the transmitted documents. Halsbury's Laws of England 4th ed., vol. 18, p.93, n.7, after referring to authenticated depositions or statements taker in a foreign State, says: "These depositions ought to be most strictly scrutinised, but the magistrate is under no duty to determine whether they were taken in accordance with English rules of evidence";, and R. v. Zossenheim (supra.); and R. v. Bitterlin (1913) 48 LU.do. 371 are cited. Section 9 of the

Extradition Act, which I have already set out (cf. s.7 of the

Fugitive Offenders Act 1967 (Eng.)), was not regarded as

affecting this result. The principle of R v. Zossenheim (supra. ) was relied upon by the New South Wales Court of Appeal in Ex

Parte Bennett; re Cumningham (1966) 68 S.R.(N.S.W.) 15 in

relation to some aspects of the evidence in an extradition case.

In the present case, there was no submission that the documents transmitted were not duly authenticated. The material documents were verified by oath. In these circumstances, it seems to me, it was the duty of the magistrate to receive them and to give their contents such weight as in the circumstances he saw fit. The magistrate did, however, apply or intend to apply, the rules of evidence. In his reasons for decision, he said that he had rejected the evidence which was inadmissible before a court as hearsay and the evidence which he thought was irrelevant. Rejection had been sought before him, as it has before me, of many passages expressed in indirect speech. The

acceptability of evidence in this form is, however, a matter of

discretion; there is no rule excluding it. Criticism was made of Many passages in which conclusions were expressed, without the qualifications of the deponent being apparent, but the admissibility of such passages, or the weight to be given to them, depends very much on an examination of the evidence as a

Counsel for the Commonwealth, as well as submitting that the rules of evidence did not apply, argued, in the alternative, for the acceptance of the findings of the magistrate on the basis of the application of those rules, as appropriate to a court. Having in mind that'all activities alleged were in some measure joint and carried out with preconcert, he relied heavily on the rules making admissible against another or others the statements of one (Tripodi v. The Queen (1961) 104 C.L.R. 1). Reliance was placed upon the inferences to be drawn from repetitive acts, and Martin v. Osborne (1936) 55 C.L.R. 367 was rererred to. The res gestae rule was also relied upon in relation to a number of activities. I doubt whether my conclusions would be very different if I sought to apply rules of evidence, but TI have

proceeded on the basis already discussed, representing as it does

It has occurred to me that I should remit the whole

matter to the magistrate, so that his conclusions could he

yeached on the basis of the slightly wider range of evidence my

ruling makes admissible. However, the volume of additional

Material is not great, it does not favour the applicants, and some evaluation of evidence by a reviewing court is always necessary when the present ground of sufficiency is being considered. It therefore would seem futile, if not incorrect, to

re-submit the matter to the magistyste for the purpose mentioned.

It was of course necessary for the evidentiary material to be examined closely by the magistrate, and for common sense notions of soundness and reliability to be applied. In this regard, some of the rules can be applied by analogy and some of the statutory provisions permitting admissibility -in curial proceedings can also be borne in mind. Some of the material expressing what others, not being deponents, are said to have said, is plainly not to be given any weight, and is excluded by me as evidence the magistrate could rely on. Similarly, some of

the conclusions expressed, which do not appear to he adequately

Ground (5) of the grounds of appeal, as I have stated it, attacks the sufficiency of evidence, and requires

I should make some preliminary observations. It is not necessary that the request be accompanied by charges, formally prepared, but that has been done in the present case. Provided

the substance of each count can be understood, there is no

question of attacking it as a matter of pleading. There isa

total of nineteen counts presented against Mr. Riley, and seventeen against Mr. SButler. I shall leave to last a comsideration of the counts numbered 1, 2 and 38; those apply to both of the applicants. The counts are arranged in pairs, the first numerically in each pair che rging importation of cannabis, Iashish or marihuana (as the case may be), the second in each pair charging possession of the drugs with intention to distribute them. It is not sufficient to proceed to a point where findings adverse to an applicant on one or two counts are sustained, so that _ he may be -extradited for them. It is necessary under the Treaty for "the decision on the request for

extradition" to be communicated to the requesting State (Art. XVI(1)), and I take this to involve reference to each charge relied on. It is alsa relevant to the application of Art. XIV that the decision on each count be known. The final decisions on whether or not to extradite rest with the Attorney-General, but Blainily it is intended that he be guided by the conclusions of

One matter of importance is that both the Act and the Treaty treat as extraditable offences any case of aiding, abetting, counselling or procuring, or being an accessary before or after the fact, to am offence of the nature specified. Similar provision is made in the substantive law operative in New South Wales (Crimes Act 1900 (N.S.W.) 5.345; Crimes Act (Cth) 1914 s.5; Customs Act 1901 (Cth) 5.236). Consideration of the

relevant evidence relative to the various counts can proceed on

this anclusive Dasis without attention to refinements of

In addition to the material transmitted, there was oral and affidavit evidence given before the magistrate. It was mostly of a formal nature, and contributed very little to the

Mr. Rilev "COUNT 3 (21 USC ss 952(a) and 960] C18 USC 5 2)

Sometime in or about November 2, 1981, at Edisto Island, within the District of South Carolina, the defendants ROBERT LESLI= RILEY, also known as tes, BEON DURWOOD HARVEY, WILLIAM PINCKNEY GREEN, III, CLEVELAND SANDERS, JAY HOFFMAN, and ROBERT BYERS, also known as Bob the Boss, did knowingly, iuntentionally and unlawfully cause to be imported into the United States, aporoximately 9,600 vyounds of hashish, a Schedule = controlled substance. Such acts are in violaticn of Title 21, United States Code, Sections 9952(a) and 960, Title 18, United States Code, Section 2."

The Commonwealth relies principally upon the affidavits of Mr. G. Abell (ex. 26) paras. 6, 7, and ex. B to that affidavit; Mr. W. McDonald (ex. 21) paras. 7-10; Mr. R. Geman (ex. 34: paras. 3-10;

Mr. D. McDonald (ax. 42); Mr. M. Bell (ex. 43); Mr. B.W. Toombs

fex. 22) para. 12; and Mr. F.M. Achurch (ex. 44). x say "principally" because that is the way counsel put it. There isa host of evidence which can, in relation to a particular count or counts, be classified as being of a relevantly background nature,

If the whole of the evidence is looked at, I thank that

Lt clearly appears therefrom that Riley, usuaily with associates, was engaged aver amatter of years in smuggiing Marihuana or hashish into the United States of America, and that he or they employed a number of people for various parts of the activity, often the same people for the same purvose. Theres was an organisation, albeit a loose one. The evidence, however, tells us very Jlittie about the overseas suppliers, and virtuali7z nething of tne method of distribution in the United States. Ir

1s also clear that Riley had a proprietorial inter most of what was smuggied. The evidence about a vsarticular

importation has to be understood and assessed acqainst this

Lebanon, and was organised in Greece, and was, 560 1t 15 aileged, conveyed on the "Anonymous of Roc" to Edisto Islana, S3o0uth Carolina. It was intercepted by United States Customs befcre

learned magistrate could base his finding in relation to this count. The principal objection to the avidence, as it affects vital matters, is that some of the deponents state conclusions, or express themselves in summary form, but this 15 not in my view

sufficient ground for me to hold that the magistrate could not

take account of it. There was an argument, in relation to th

and other counts, that the evidence did not) show that

consignment came from outsiage the territorial limits of

United States of America, and therefore was not an "importation

... from a place outside the United States", but I do not accept

this submission. The particular consignment was within the

jurisdiction at the time of the interception by the Customs

authorities (see, for example, the affidavits of Mr. G. Abell,

The importation, if 1t occurred in Australia, would

constitute an offence under 3.233B(1)(b) of the Customs Act 1502.

Count 4 relates to the same consignment, but charzes

ev Mee that Mr. Riley, either directly or through his agent or

agents, had vossession for the purvoses of supply, an offence under the Poisons Act 1966 (N.S.W.) 5.21 (and see 3.26). Tne argument went simply to the point of submitting that there was no "importation" or no "possession with intent to distribute" within

Sometime in or about January 13579, at Conway, South Carolina, within the District of South Carolina, defendants ROBERT LESLIE RILEY, also known as Les, LEON DURWOOD HARVEY, OLIVER MAYFIELD, and KEN PIERCE did knowingly, intentionally and unlawfully cause to o»be imported into the United States, within the District or South Carolina, from a place outside the United States, approximately 29,000 pounds of marijuana, a Schedule [ controlled substance. Such acts are in violation of Title 21, United States Code, Sections 35%ia) and 960; Title 18 United States Code, Sections 2."

It 18 a convenrent wav of indicating the general nature

et much of the evidence in relation to the various counts, and

the objections taken (so far as relevant to the evidence), to sa

out what 25 relied upon by the Commonwealth in relation t

"8, In or about June, 1977, my partner, Barry Toombs, and I entered into 4 partnership with Robert Leslie Riley and his partner, Leon Durwood Harvey. ft was agreed that the two partnerships would each receive fifty percent (50%) of all profits made from smuggiing ventures."

'9, The next ventures occurred in or about January, 1979, and involved myself and my partner Barry Toombs,

and Robert Leslie Riley and his partner Leon Durwood Harvey. Robert Leslie Riley and Leon Durwood Harvey had approximately 28,000 pounds of marithuana on Samana Cay, Bahamas. I agreed to have the marthuana brought into the United States aboard my boat, the Beach Queen. The load was brought into a location near Conway, South Carolina, and was loaded into eleven (11) vehicles and transported to Virginia where it was sold. Toombs and

T veceived one half of the procceeds. We paid Robert Leslie Riley and Leon Durwood Harvey about 3.5 million dollars in Alexandria, Virginia. After expenses, all

four of us'made a profit of approximately one mallion dollars each."

"9, In about December 1978, Lee Harvey and I met in Alexandria Virginia to organize a marihuana smuggling venture. Lee Harvey told me that Steve Ravenel had 20,000 pounds of Columbia marihuana on Samana Cay in the Banamas. Lee Harvey offered me 30 percent of the MarYlhuana 2f I would get 1t smuggled into the United States. I had a 72 foot snapper boat calied the "Beach Queen" that I used for the venture. I out Bailly Popweli on the boat as the captain. Popwell put chree people unknown to me on the boat as crew, The boat left from Georgetown, South Carolina, went to Samana Cav, picked up 17,500 pounds of marihuana, and entered the United States on the Santee River in South Carolina un January 1979, Iwas at the off load site when the boat came in. &t the site, I saw Jack Bera, a person known as Xenny who owns a bar in South Carolina, Kennv O'Day, Wayne Morris, Donnie Morris, Bernie Leng, Sonny Herring, Larry Semones, Larry Ferneil, Lee Harvey, and Julian Pernell. There were also two Columbians on the boat with a shotgun. We off Loaded the marihuana ints '5) pick-up trucks, one 18 foot van, and one 20 Foor yan. The 18 foot van want to Columbia, Soutn Carolina to Jack Berg's houses on the lake. The rast went to the

state of Virginia. A net profit of 1,200,000.00 was made on this venture. I qave Lee Harvey $900,000.00 cash. Tnree hundred thousand was for axpenses and

$600,000.00 was profit. The profit on this deal was low because the mar:huana was low grade."

"QO Prior to heading down to South America, nad you discussed this matter with Lee Harvey?

A Yes, I had. I was dissatisfied with the deai that

IT could make with Clark, so I called up Lee, who I had known at tne university and through other little dealings. And he said he could load the

So I wasn't happy with that deal, either. Soa the initial deal with Clark was che best deal, so that's the one I went with.

And we lert to pursue that deal. But the boat got into trouble off the coast or South America. And we had to put anto Cartagena.

Q What happened while you were in Cartagena? A Well, we tried .to repair the boat, but I was running Sut of mbney and the craw that I had on

board was just a little disillusioned with the smuggling, so they both flew back home.

Twas lert down there with the boat and no money, so I came back to Miami and contacted Lee Harvey and said, 'Listen, I've got a big problem. Can you help me out?'

And he said he would. But he would have to have complete control of the deal. In otner words, the boat and so forth.

So I flew back down to South America, waited for him to come down there. Which he did a few weeks or a month later with a crew.

Q All right. Wno came with Lee Harvey to Cartagena? A He was with Les Rilev.

A Well, I thank Ashley. I don't know his last name. Christy Campbell, and there was another fellow -~ Kenny -- Kenny somebody."

(at p.18-19 of transcript) "OG And how had you obtained that money?

A TI had received that as front money from Lee Harvev

for payment of the load. Had he delivered that to vou in Cartagena?

I believe he did. I believe he did. Brought it down to me.

Did you return to South America after the selzure of the boat?

To procure another load. Because I was pretty much in the hold right now. The first trip bustad, so I had to get another one together.

So I went down there and tried to convince the Colombians to send another load, but I didn't have a boat to put 1t on.

Where did they agree to ship the marijuana for you?

They said they would ship it to the out islands in the Eanamas, specifically che Samana (vhoenetic spelling of pronunciation) Cay, ain the Banama Islands.

All yvidht. Who were you dealing with in Colombia at that time?

I qguess I was probabiy dealing with Navarro, but Mr. Gomez and a whole group of other people; nobody specific. Just whatever farmers had ths available

"So they took me up into the mountains one da and showed me a big -- what they call a colado, a big farm full of pot.

And that's how 1t ail startad. I see, When the Colombians agreed to send the Marijuana to Samana Cay for you, now [s2c.] much

about 10,000 pounds. But by the time the boat left, 1t was more like 30,000 on board.

What arrangements had you made regarding getting this marijuana from Samana Cay ainta the United States?

I had contacted Lee Harvey, who was on the vorevious crip. And said, 'We have got to get another load in. I've got to gat another load in. Can you give me a hand with another one?

And he said he could. He saad he would supply a vessel to come down to the islands and pick it up at Samana Cay. If I could get 1t up there, which he probably didn't belisve would show up. But 1¢ showed up.

And in turn he had a boat that went down there and pickea up the load.

The boat that -- the name that I know 1 by was tne "African Queen',

It was an S32Z-foot snapper boat. Ts vas boucht somewners in South Carolina, I believe; maybe McClellanville or somewhere around there. I realiv

It's a longline boat. It s a boat that they -- 1t's mot like A Snrimper; 1t doasn't nave nets or anything like that.

Thev use big reels, downriggers and stuff iike that to bring in tne fish.

Who was captaining that vessel? Popwell, I think his name was. William Popwell. William Popwell?

He had about three other fellows on board. I don't know who they were.

Were you at Samana Cay when he arrived to pick up the marijuana?

We put all that was on the island. I chink it was about 25,9000 pounds.

And what nappened -- was Lee Harvey there when it was loaded?

No. He wasn ct there when it was loaded, but he was on another ausland waiting. Or he wasn't actually out there, but he was with me prior to the actual Lloadup.

Let's see. Well, aut was put on the boat, the "African Queen." And it came in somewhere in South Carolina. McClellanville or some little seaport town.

I wasn't there when it came in, but later on was told that 18,000 pounds had come in. So 1t wa a big def2cit from the original loadup that lef Columbia.

S30 I immediately had a orocblem with the seople Since there were five or six thousand pounds short. But I was naid for -~ I forget how much. [I think I was pala for 19,000 pounds, which I in turn aid tne Colombians. Which left ma with a big -- you know, really -- without takind any money on the deal and owing a good bit.

Quite a Dit, yeah. Probably about a half a million dollars or more. I forgot. In otherwords, it laft me open. I had to do another deal at this point to

What was Harvey's explanation for why he was paying you for only 18,000 pounds?

Well, it was loss of welght; some got wet, some got

lost. it was really not a very good explanation. It just wasn't there.

Tell us about those, where you received those Payments and in what form and what you did with the

I received the initial payment, I chink in Nortnern Virginia, somewhere around Alexandria.

Somewhere close to eight or nine hundred thousand dollars or maybe a little bit more oar maybe a little bit less. And that was given to me by Lee or one of his brothers.

And do you recall that the money was given to you by Lee Harvey and one of his brothers?

Yes. And was it in a suitcase? It was in two su1rtcases, I delieve.

So you met them somewhere in Northern Virginia and they delivered two suitcases?

They delivered two suitcases in &@ car wnicn =f teok out and put aun my car and then I went t9 che airport and flew to Miami with ict. I dsan't open the surtcases until I gat to Mtamz Just because

When you arrived in Mzami with the suitcases, you Opened them?

Yes. And how much was in them? I thank it was $860,000; somewhere around that

Did you subsequently receive additional payments from Lee Harvey?

Yes, I did. To the total amount of somewhere around -~ well, I forget. [t's two or three million dollars, I think, ain total. Whatever

18,000 times the amount of, you know, what he was selling it for.

And all of this money that you received you took to the Colombians?

I took to the Colombians because I owed them -- I owed them for 25,000 pounds and was only getting paid for 18,000.

because they were screaming at me, 'bring us ail tne money.' Thinking tnat I reallv got -- they were convinced I got in 25,000 and I was tiust teving to cut them down.

So it was some bad blood there for avwhil because they didn't believe me. They our on 25,00 in Colombia, and when it ets to the States, there's only 18,000.

Do vou have any idea what Gee Harvey's and Les Riley's orofit would have been on this deal?

After that deal, If believe we di like 1b using tne same boat ada same amount.

But to recoup the Fi vague on this one; Sut as did.'

The objections taken are set out in a helpful document

Inadmissibie. Broad allegations of oartnershig, etc,

not say he saw the load brougnt in. Hearsay. The statement that monev was paid to Riley 15 dependent on the above."

Inadmissible. Hearsay. Relies on wnat he was told and the observations of Harvey.

"Does not establish link with Riley. The name of the boat 1s differant. No assumpzion the same boat.'

The following general comments, briefly expressed, wers

No evidence of importation, or importation caused by Riley, or that it was the shipment alleged in the

No evidence of possession dy Riley with intent to daustribute.

Insufficrent identification of the material. No jury would convict.

No reference to Mayfield and Pearce Csic.d (co-defendants)."

Wadoubtedlyv much of this avidence, .Lf taken in 1solaticn, could not be admitted in its present form, at least over objection, at a trial of Mr. Riley. Cn tne other hana, there 15 no reason to suppose that this count would be heard in

isolation, and there is much other evidence which gives a context

tO What I have set out. The relationship oetween the various actocs, and their respective means of knowledqe, can then be better understood. There 1s, for exampis, the evidence of Mr.

B.W. Toombs, before that which I have set cut. which ceads as

'9, Csic.J In April 1973, Julian Pernell, Lee Harvey and I met in Alexandria, Virointa to plan a marinuana smuggling venture. Tt was agreed that Lee Harvey and res Rilev would be resoonsible for tne boat, crew, and f Iloadana and Julian FPernell and Iowould be spansibie for qmatting the boat loaded with marihuana

Columbia, South America. In was also ageesed that at es a) a

v ur Les Riley and Lee Harvey would g f of che marihuana and Julian Pernell and I wou

There is reference toa consignment earlier than the one the subject of the present charqe, and then there is the evidence I

have set out. It is plain enough that the vessel referred to bv

Ravenel as the "African Queen" is ain fact the same as the "Beach

both the counterpart operative in New South Wales and in the berms in which 1t 15 made. An ob vection taken on 2 number er eccasions was the qualification of particular deponents 'a swear

that material was cannabis (or marihuana) or hashish. This av

distinct, for example, from knowledge that it was a vrohibited

import) (cf. Rm. v. Taaffe £1983] 1 W.L.R. 627), but there is no need for me to deal with this aspect. The evidence indicates tnat these materials have a distinctive smell, and thers 115 always one devonent who was accustomed to handling them, ar substances treated or recognised as such. In celation to counts 2 and 4, customs officers identified the naterial. In my view, the various objections on this ground should not be sustacznad.

Maving in mind the natures of the arrangements, there is in my view sufficient evidence to support a case of possession,

Sometime in or about Pebruary 13 at Callboque Cay, Hilton Head Island, South Caco lina, within the District of South Carolina, defendants ROBERT LESLIE RILEY, also known as Les, WALLACE E. BUTLER, OR., WARREN FRANK STEELE, also known as Willie Frank, ROBERT BAUER, alsa known as Willie the Hog, ASHLEY BRUNSON, ROBERT FORBES, and DAVID ALTON BERRY did knowingly, intentionally ane unlawfully cause to bea imported into the United States, within the District of South Carolina, from a piace outside the United States approximately 2,000 sounds of marijuana, a Scheduie controlled substance. Such acts are in z Title 21, United States Code, Sections 9821 a Title id United States Coae, Section 2."

wall set sut the principal avidence relied upon, whith

6&6. In or about February 1379, Robert Leslie Riley asxad me if I was interested in maxing some money. I told Riley I was and in about mid Sebruarv, 1973, I met Raley at his house, 321 Dogwood Lane, Hilton dead Island, South Carolina, wasre Riley told me he wanted me to Operate the fadio5 on an upcoming smuggling venture. Riley further told m2] that I would be stationed in the woods with a VHF portables radio and that I was to report any suspicious activities. The

next week Riley called me at my nome on Hriton Head Island, South Carolina, and said we had work to da. Riley instructed me to come to his house, 31 Dogwood Lane, Hriton Head Island, South Carolina. I arryived at Riley's residence about 7:90 p.m. and observed Filey,

Ashley Brunson and a4 person known to 8 as Brian putting vadios ante the back of a Ford piceup truck bearing Virginia license plates. I cbhserved three '3 VHF portable caditos and a scanner in the truck. I wa

n 3 taken un the truck to anarea at the entrance of Caliboque Cay, Halton Head Island, &5 i I

was given a radio and instructed by Ashley Brunson to stay in the woods and report any suspicious activity. Shortly thereafter, I observed four or five heavy-duty Ford and Chevrolet pickup trucks with camper shells go by in the same direction that Brunson had traveled when

he departed me. About two hours later. I heard 'Anchors Away' over the radio which was the all clear sianal. A short time later, tne same four or five

pickup 'trucks that had previously come in went out. Brian then pickad me up in the sare pickup truck as before and dropped me off at my residence stating, Good work, everything went fine.' T smelled a strong oder of marijuana in the truck. i am familiar with the smell of marijuana and TI have smoked marltuana on numerous occasions.

zrthin a weex after the load of mariiuana t Leslie Riley came to my cesidence, on

his bicycle, and gave me $5,000.00 in cash for "vy services which was in $5.00, $10.90, $29.00, $50.00 and $100.00 denominations. The money was in 31,000,00 bundies, wrapped with rubber bands. When giving me this money, Riley said that the boat had brought in about 6,000 to 98,000 pounds of marijuana. Riley instructed me not to put all of my money into a checking account at one time. Riley further told me

"S. My first involvement in any marijuana d smuggled anto Hiiton Head, South Carolina was in ut the Spring of 1578. This was a load of about 7,900 pounds of Colombian marijuana. tesle was the boat captain and the load he reasicence of Wallace ©. Butler, aliboque Cav, Hilton Head, 3o rank Steele recrurted me far the a.

F al 7 load down to Soutn America, I dont knew financed this load."

This last-mentioned affidavit probably assists very littie, if at

all. The fact that Mr. Abell gives a contrary date ecsuld possibly weaken the case otherwise made, but this is a matter for the magistrate. In my view, what 1s set out by Mr. Strickland in

Ris affidavit 1s sufficirent to enable the magistrate to reach th

conclusion he did. The three principal objections taken to ovart of My. Strickland's affidavit in question are that there

aunsufficient evidence (a) that the substance was mar thuana;

Fometime in or about March or April is Caligobue Cav, Hilton Head Island, Scutnm Cars a, within the District of Soutn Caroiina, detendancs ROBERT LESLIE RILEY, also known as Les, WALLACE ©. BUTLER, JR., LEON DURWOOD HARVEY, WARREN FRANK STEELE, also known as Willie Frank, ROY C. RILEY, ROBERT BAUER, also known as Willie the Hoq, ROBEPT FORBES, DONALD BRUCE MacDOUGALL, THOMAS HARVEY, DAVID ALTON BERRY, and HARRY KENNETH FLOYD dad knowingly, tntentionally and unlawfully cause to be imported into the United Stares, within the District of South Carolina, from a olace outside the United States, aporoximately 9,900 pounds of marijuana, a Schedule I controlled substance. Such acts are in violation of Title 21, United Srantes Code, Sections $52(a) and 960; Title 18 United States Code, Section 27."

"@. Tn or about March or April, 1979, Robert Leslie Riley called me again and asked 1f I would be avaitlable to work in a week or ten days. Riley cold me he wanted me to be located in Wallace, (also known as Wally) d#ucler's house Listening to the radio rather

than out on the road. This was the first knowledge T had that Butler, whom I fave tnown for a number sf years, was involved. About a week later, a person known to me aS Brian picked me up at my residence in the same 1979 blue coloured Foard pickuo truck with a white camper. This truck was the same as used on the last venture. A voerson named Wavne McDonald was accompanying Brian at this time. Brian drove McDonaid and me to Butler's house, #6 Caliboque Cay, Hilton Head Tsiand, South Carolina, where we were met outside dy Butler who tock mé insids the house and instructad me £53 sev up the radios in his laving room. Riley had cut the VHF radios on channel DBD. I was t Monitor the radio frequencies of the Beaufort County, fourh Carolina, Sheriff's Denarctment, The South Carolina Wiidlites Service, The South Carolina Highwav Patrol, The United States Coast Guard, and the Sea Fines Security, Hilton Head Island, South Carslina. djutier instructed me mot to say a word on the radios unless something happened. Butler then took a portable radio and want outside at approximately 93:00 p.m. or 3:00 p.m. Brian then entered Butler's back vard in the pickup truck, and was thereafter followed Dy tnrse or Four more pickup trucKhs Io oyecoqnized Ashiey Brunson, Tom Harve, bronner Lee Harvev; Erian: Bruca McDougal from Maine; and Roy Riley, brother of Pebert Lesiis Filsv. There wers about five at men unknown co me, Butler cams into the house about 70 p.m. ana said the boat nad arrived. 7 staved +: | house and evervone else went sutside, [IT hear Lidqates of trucks being ovened and could teil cha mething was being loaded into che trucks. This lias ory about 39 to 45 minutes. During loading, the driv and loaders would come into the house and get water which time I observed marijuana stalks and ed mar2quana leaves in their hazy and on thaezr clothing. IT could alsa smell what I knew to be and recognized as wariijiuana a

T have used marijuana before. One of the of f-Loader

Marijuana. A short time later Butler, whe had been and out of tne house, told me to dismantle the radio and gave me his vadio. Thereafter, tne pickup trucks beqan leaving in approximately 15 minute intervals.

took the radios and got anto the pickup truck with Brian. This pickup truck was hsavily leaded with Mariivuana and I could smell che strong accor of

Marijuana. We stopped at the gate and picked up Wayne McDonald and I was taken to my residence where I arrived anout 1:00 a.m.

3. The next dav, Tf went to Robert Leslie Riley's residence at 313 Dogwood Lane, Hilton Head Tsland, South Carolina, where I met Riley who stated ta me, 'Everything went well, you all did a fine 105,' Several days later at Riley's resicence, Riley paid the 35,000, 0060 cash for my services. The money was in 35.00, $10.00, $20.00, $59.00 and $100.60 denominations, with all of them being old bills.

18. On one occasion Robert Leslie Riley cold me he valad Wallace Butler $100,000.00 far providing

off-load sites for drug smugglina. After the load of Maryijuana came to Butler's house in April, 15795, I was at Rilev's house when Butler came bv. Thera was a

house at 31 Dogwood Lane, Hiltan Head TIslana, South Carolina. <I observed Butler take a package af $100.09 pills from the sack, flip through the bills, and comment that they were im consecutive order. sHutler, tnerearter, took the entire sack of money. Affidavit of J. damison

nd T first mer Robert Lesize Riley, aka 'Las' in 19738, 1m Hilton Head, South Carolina wnen = was introducec to him by Wallace Butler, fn the summer of 1979, Butler asked me if I wanted te sgarn $5,009.00 Tor oroviding security on a shipment of marijuana. f agreed to oarticipate and was under the impression that Butler was providing the off-load site, and also under the impression that the load of marijuana actuaiiy oe tonged to Les Riley. The night the load came in,

utiex picked me up anc took me to his house son Hilton Head. South Carolina. Butler gave me a hand held radio and directed me to a spot where IT was to stand and provide security. Butler further advised that when I Neard 'anchors away' over the radio, this would be the signal that the off-loading of the M™arituana vas complete. After a period of time, = heard anchors away' on the radio and veturned to Butler's could smell marijuana all around the area a hot night. Butler said everything had qone a] thereafter, Butler drove me home in his car. Abcut a week later Bulter Csic.] came by way house and dropped

or the charge. I would not think 1t permissible for the magistrate to act on "impressions" of the aeponent sét out in para. 4. Strickland was remote from the unloading, and certainivy had no

direct knowledqe of how mucn was unloaded. He nevertheless

provides material from which inferances could be drawn that kilev (with Butler and others) was engaged in another snuaglinrd operation, and that it related to marinuana. Whether 'the

statement made by an "off-loader" that there wera about 9,900

pounds of marihuana could be admitted under Walas rules of evidence 1s debatable, but it seems tome that 14 15

Something which the maqistrate could take aint account in

relating the evidence ta the charge. The statement 13 inherently

I am of the view that the magistrate dia not err in law

Following what IT have said about count 11, there is material to support the magistrate's Tinding in relation tro this

Sometime in or about June 1979, at the 0 Factory, dilton Head Islanc, Soutn Carolina, within c District of South Carolina, defendants ROBERT LESLIE RILEY, also known as Les, WALLACE E. 3UTLER, JR., and WARREN FRANK STEELE, also known as W2ili2 Frank, did knowingly, aintentionally and unlawfullv cause to be imported into the United States within the District of South Carolina, from a place outside the United States, a large quantity of marijuana, a Schedule I controlled

substance. Such acts are in violation of Title Zl, United States Code, Sections 952(a) and 360; Titles 19 United States Code, Secricn 2." What 2s principally reiied upon here are oaras. 19 and 11 of Strickiand's affidavit. This evidence qoes to show shat a

sonsiagnment of marlhuana tapparently aA larqe considnment: was

"10. In Tune, 1379, I met Robert Leslie Rilev at his residence, 31 Dogwood Lane, Hiiton Head Island, South Carolina, at which time Riley said ne had a

friend in the business who needed a radio operator and asked 1£ I would like to work the radios for Willie

Frank, Riley assured me it was omay as Willie Frank had been working for a long time and there was nothing to worry about. I agreed to work. About mid-June,

1979, Riliev telephoned me and told me someone would pick me up at Mariner's Cove, Hilton Heac Island, South Carolina, about 11:00 p.m., in Wallace Butler's car. 7 was late arriving at Mariner's Cove with Rilev's radios and was later picked up by Waliie Frank's girirriend,

whose name I do not know, in Butler's car, a areen four

door Buick. She drove me to che gate of the Oyster Factory near Hilton Head Island, South Carolzna. ...'

Tt 1s possible that when all the evidence is looked at 1 will be apparent that Butler was acting as agent for Riley in relation to

this particular operation, but I have not been cefarred to any,

and have not noted any. One 16 left, therefore, with tne avidence to which I have referred. i doa not think it satisiies the statutory test, and the warrant of commitment should not be

Sometime in or about June 1580, at the %vster Factory, Hilten Head Island, south Carolina, within tna District of South Carolina, defendants FOBERT LESLIE RILEY, also known as Les, WALLACE E. BUTLER, JF., LEON DURWOOD HARVEY, POY C. RILEY, ASHLEY 3SRUNSOM, DONALD BRUCE MacDOWNGALL, THOMAS HARVEY, MICHAEL LEE HAPVEYV, CHRISTOFHER WARD CAMPBELL, CATHY CHILDS, HARRY KENNETH FLOYD, and WILLIAM PINCKNEY GREENE, III, dia knowinalr, intentionaliy and unlawfully cause to be imported ines the United <Atates, within the District of South

Carolina, from Lebanon, a place in the Unitea States, approximately 30,000 pounds of hashish, a Schedule Tf controlled substance. Such acts are in violation of Title 21, United States Code, Sections 352Z'a) and 960; Title 18 United States Code, Section 2."

Sometime during October 1980, at the Ovster Factory, Hilton Head Island, South Carolina, within the District of South Carolina, defendants ROBERT LESLIE RILEY, aisa known as Les, WALLACE E. BUTLER, @JIRF., WARREN FRANK STEELE, also known as Willie Frank, ROY C. RILEY, ROBERT BAUER, also known as Willis the Hog, ASHLEY BRUNSON, ROBERT SAYERS, also known as Bob the Boss, ROBERT FORBES, DONALD BRUCE MacDOUGALL, and THOMAS HARVEY, did knowingly, intentionally and unlawfully cause to be imported into the Uniahted States, aporoximately 7,900 pounds of marijuana, a Scheduis £ cortrolled substanc such acts ars in violation of i Z tes Code, sections 35Z!'a) and 4 we

(a) aArfidavit of Wavne McDonald, oara. + (the rafers, however, to the impertacian being 'about Decemser LOB");

(c) Affidavit of G.H. Strickland III, paras. 12-15 'he cefers to the alleged offence as occurring "about

the importation of another load of marijuana, [T am not abie to

calate it to the chargs. Some confusion about the dates 15 no necessarily fatal, but it is necessary foc the evidence toa

support what ais in the count, in the sense that the connect

Tust be apparent, notwithstanding an error in the tatem

by evidence, and the warrant should not be based upon it.

1981, at the Oyster Factory, Hilten Head TI nea, Carolina, within yict cf South Carolina, defendants POBEPT LESLIE RILEY, also sn as LEON DURWOOD YAFRVEY, ROY C. RILEY, ROBErT BAUER, known as Willie the Hog, POBERT BYEFPS, also known as Bob the Boss, CHRISTOPHER WARD CAMPHELL, JOHN GHEDINI, JEFF 9 PEGAN, and THCMAS N. RHOAD, {II, also known as Rolex, did knowingly, auntentionally and unlatfullyv cause to be imported anto the United States, within the District of South Carolina, froma place cuts-ie tne

United States, namely Lebanon, Middle Ea approximately 29,000 pounds of hashish, a scnedu controlled substance. Such acts are in vuiolatio Title 21, United states Code, Sections 952(a) an Title 18 United States Code, Section 2."

The evidence principally relied upon 1s as follows:

(a) The avidence relied upon in relation to counts 3

'b) Specifically, reliance 1s oglaced on the following -

(iii) Grand Jury testimony of 5s.D. PFavenel, en.53-57 of transcript. (iv) the affidavit of J.T. Pernell, paras. 3, 3-15

supports a conclusion that a motor vessel called the "Caroline ©

was one of tha three vessels which brought to the United States part of the hashish for wnich Riley arranged when in Greece. The consignment comprised about 20,000-22,000 pounds, and was successfully unloaded in South Carolina. The second link with Riley 15 found in evidence of Toombs that the load (with others) belonged to Harvey and Riley. Toombs had had a Long and intimate

association with the drug-smucgling business over a xperioca of

years, - he admits (or claims) that he was involved with Pernell in fifty-two marijuana or hashish smuggling ventures in the years 1974 to 1981. He had in 1981 known Riley for five or 51x years

and had smuggled in concert with him. In my view, the maqistrate

was entitled to take account of his evidence. He did not erry in law in relation to this charge. Count 36 The evidence connecting Paley with the alleged importation 15 in my view sufficient also to support th2s charaqe. The counts mumbered 27 ta 37 a inclusive charge currency and taxation offences, but no reliance was ovlaced upon them in seeking a warrant of commitmant. Counts 1 and 2 Count 1 is as follows: "COUNT C21 Use 3 962] CONSPIRACY TO IMPORT MARIGUANA AND HASHITSH THE GRAND JURY CHARGES: A. Feom in or about 1974, the exact dare being unknown to the Grand Jury and continuousiy thereafter up to and including the date of this zndictment, in the District cf South Carolina, and divers cther @istricts and within the jurisdiction of this indictmert, the

defendants, ROBERT LESLIE RILEY, also xnown as Les, WALLACE E. BUTLER, J8., LEGN DUPWCOD HARVEY, WAPPEN FRANK STEZLE, also known as Wiliite Frank, ROY C. RILEY, ROBERT BAUER, also known as Willie the Hog, ASHLEY BFUNSON, ROBERT BYERS, also known as xob she Boss, ROBERT FORBES, DONALD BRUCE MacDOUGAL, THOMAS HARVEY, MICHAEL LEE HARVEY, JAY HOFFMAN, DAVID ALTON BEPRY,

CHRISTOPHER WArD CAMPBELL, CATHY CHILDS, HARRY KENNETH FLOYD, WILLIAM PINCKNEY GREEN, III, OLIVER MAYFIELD and KEN PIERCE, did unlawfully, knowingly and intentionally combine, conspire, confederate and agres together, with each other and with varisus other persons, both known and unknown to the Grand Jury, to ccemmit the following offenses against the United States:

import anto che United States, Schadula © non-narcectic

violation of Title 21, United States Code, & and 960(a)i 1).

"L. As part of the de dants Slayed @ifferant roles, took sa arent tasks and participated ain the corspiracy chyrouagh various criminal acts. ' assumec fy these defendants wers interchangeable at various times throughout the conspiracy. These detendants made themselves and their services available at varicus enrouqdhout the conspiracy and would partaicz selected smuggling ventures on an as needed Eome of the roles wnhick these defendants ass

Rh. Secur1rtv Guard or 'look-out' i. Provider of off-load site Ts Jistributor

There area also set out some fifty-one overt acts said to

show the conspiracies charged in counts 1 and Z (count 2 deals with possession of marihuana and hashish with intent toa

Tt seems to me that consprracy to commit an offence

against the laws relating to narcotics is an extradzitable crime

Treaty). However, there 1s ma eévidence to support rhese oo: 4 = |

Particular charqes. tt is reasonably apparent from tne 'manner

and means" specifications and the list of overt acts that what it

purposes. Thera 15 ro doubt that under our law the count would

roduce a verdact of not quilty. Accepting as Ff do that the extradition scheme is to be construed and given effect to ina practical way, and ain accordance with 1t53 purpose, especially

ause of the need to relate two systems of law of difzerant content and operation, it still does not seem possible f2r the count in question to be given the sfiect

the Treaty says, so far as relevant, "the offence with which he 1s charged". The magistrate shound not be expected cto construct

charges from the totality of the evidence. Ic may well be true,

of course, that the specific charges in the counts already dealt with involved conspiracies, and that several of them were

included in the one conspiracy, but that 15 mot what 15 alleced.

Tam Eherefore of Ehe view that the charges in counts 1 and 2 dso not support the warrant. Count 38 This is as follows: "COUNT 38 CTitle 21 JSC 5 8481 CONTINUING CRIMEZNAL ENTERPERISE THE GRAND JURY FURTHER CHARGES: Beginning in or about summer 1574, and continuing up t&0 and auneluding cr date of tnis

indictment, within the Dastrict of other districts, defendants ROBEPT 1 Ges, WALLACE ££. BUTLER, Jn., LEQN DU AARREN FRANK STEELE, alsa known a3 1+

outa Carolina and SLIE RILEY, asvksva RWOOD HARVEY, ana s Willie Frank,

anlawfully, iuntentironally, wriltul and knewinghy enqagved ana continuing e¢riminal cnterorize

Ztates Code, Sections 44liai(l) and (b)'6), and 9a). w.eae, were part of A continuin series of violations of Subchapter I and [I of the Comorehens:92 Drug Abuse Control Act cf 1970, Taitie 21, United ftates Code ..... umdertaken by defendants ROBERT LESLIE RILEY, WALLACE E. BUTLER, JR., LEON DURWOOD HARVEY, and WARREN FRANK STEELE in concert with at least five other persons with respect to whom defendants POSEST LESLIE RILEY, WALLACE E. BUTLER, JR., LEON DURWOOD HARVEY, and WARREN FRANK STEELE each occupied a position of organizer, supervisor or manager and from which such continuing series of violations ROBERT LESLIE SiLEY, WALLACE E. BUTLER, JR., LEON DURWOGD HARVEY, and WARREN FRANK STEELE obtained subtantial income and resources, all an violation of Title 21, United States Code, Section 849.

The ingredients of the crime known as "continuing criminal enterprise", a crime under 5.848 of the United States Coda, are

xplained in an affidavit of Mrs. Currie, Assistant United States Attorney for the District of Southern California. There 15 nota

The ingredients of the offence alleged against Riley as

"L, That Robert Laslie R conspiracy offense charged in Count importation offense charged in any of Co a, li, 13, 19, 21, 23, and 25, of the o nossession with intent to distribute charqed : Counts 4, 5, 8, 10, 12, 14, 20, 22, 24, and 26, or any sombination of these offenses, or any overt acts, or any substantive drug violations not charged in the Indictment Dut proved by evidence offered at trial.

2. That the violation of any of the offenses charged in the above mamed counts by the defendant Pobpert Leslie Riley are vart of a continuing series of yiolations by him of the federal narcotics laws;

3. That the aefendant Rilevr undertoow to commit such a series of arltenses im concert with Five or more persons;

4. That the defendant Riley occupied the positian of organizer or supervisor or any other position of management with cespect to such five or more persons in said undertaking; and

5. That the defendant Riley obtained substantial income or resources from said continuing series of such violations."

It seems to me that count 38 does not constitutes a crime upon which an extradition order can be based. Pealiance was placed on paras. (2) and (3) of Art. ITI. The pattern of paras.

(1), (2) and (3) of Art. IIT 1s that tnere as first a list of

specific offences (para. i(1)), that the 1s then provision for

'para. (2)), and then provision in general terms for offences against federal laws of the United States, of which offences under paras. 61) of (2) forma "substantiai siemenc'. The

yeterence in these paragraphs to "offences" correlates with the

Section 4(1A) tests the relationsnip between the foreign offence and a local offence by reference to acts and omissions and their equivalent. This is doubtiess more refined chan

ceaterring to equivalent offences, but creates problems, not least

when one seeks to apply a notion of equivalent acts or omissions. When ai compiex forsign offence 1s under consideration it 15 surticient that an act or omission which 1t embraces, or its equivalent, constitutes a local scheduled offence. As exoressedc, these are, however, only conditions upon which the foreign

This scheme does not fit too readily the terms of s.17(6), which deals with proof. Given that the foreion offence

has Satisfied the tests of s.4(1A}, and 1s therefore an

extraditabl= crime, the substance of that crime is rot, for

relevant purposes, to be found by reference to those tests. On the contrary, the opening words of s.4(1A) show that the foraian offence remains 'the extraditable crime, It is that which comes

before the maqistrate, to be dealt with in accordance with the

terms of s.17(4). Sub-paragrapnh (b)(i) of that sub-section does not state what "justify the trzal" 1s to relate to. In most cases there is probably no problem. The acts or om:zssions

charged will fairly obviousiy satisfy the test that if they had occurred locaily they would constitute a crime, being a crime similar in description and content to that charged. Tf the

foreign crime 15 complex and un total has no equivalent, che

position 1s more obscure, Thera seem ta Se only two alternatives, namely the whole crime, or the saiected alament. I imagine it must be the former, but it is fortunateivy not

necessary for m@ to pursue the matter to 4 conclusion because the

It seems to me apparent that the paragraphs of Art. II

are deaiing with whole offences, and not segmented par ™.

The application of s.4(1A) does not, as I nave said, lead to

Part being an extraditable crime, or to use the lanquage of para.

(2), "an offence made extraditable under the extradition laws 9

result that it was only necessary to ovrove the element whic under 5.4(1A) satisfied the condition by reason of which tne offence became extraditaple (in this case the Llmportation or che

possession already dealt with 1n the other counts), the lanquage

of poth paragraphs (1) and (2) of Art. II of tne Treaty, as well as that of Arts. VI and XI(3) would operate aqainst that element being accepted as an extraditable offence under the Treaty. If, Following s.4(1A) or s.17(6), or both, the whole United States offence were to be vegarded, tentatively, as that which was extraditable under the laws of Australia (vide para. (2)), there

would be the primary problem of lack of equivalence (see art.

In reiation to para. (3), the offence here in question

15 of course an offence against a federal law of the United

States. It may be assumed that an offence under paras. (1) or (2) forms a "substantial element" of it. If not, there is no erime extraditable under the Treaty. It 15 not the substantial

element alone which has to be proved but the offence of which 1*%

rorms part. The words of Art. VI wiali not accommodate A&A construction to different effect. Allowznq for che fact that there are iikely to be some difficulties in anv event and that

some flexibility must be allowed, the fact is that tne subiect

of ce 1s quite unknown in New South Wales and has no equivaient

here, Article ¥I(3), which aus more of a procedural nature,

I am of the opinion that count 38 does not constitute a crime, or offence upon which extradition can be based, and tnat the warrant should not therefore have issued in reliance on 1t 50

In anumber of counts Butler has been charged with Riley. Counts 1, 2 and 38 are examples, and my conclusions in ceaspect of these apply also to Butler. The first count now to be

He is here charged together with Riley, and others, but

1t ais mecessary to consider the evidence against nim. The

offence alleged 15 one of importation committed in or about February 1979 at Caliboque Cav, dHziton Head Islard, South Carolina, andis said to have involved about 3,900 pounds of

(a) Affidavit of G.H. Strickland III, vara. 4 (tais and other affidavits are dastinct from those oresented

There 15 a major discrepancy in dates between Abell's affidavit (who refers to "the Spring of 1978") and the count. ne afficavit of Strickland 1s of little or no assistance. It 15 submitted that there 1s a problem af the date or period given by

Abell is correct. The evidence of Mrs. Currie is that there is a

of Lamitation of five years to was presented by the qrand If therefore the offence occurred in 1s taken to end in about Mav, forbids Become the requesting reasons decision on the

State ... . The learned say anything about this question of dates. The

1s the offence charged. x= would be inclined to uphold the

supmission concerning the application of the Statute of

Limitation, aif the earlier date ais applicable, but it 215 not cy

necessary to say more on the matter. The count 15 aot supported.

Count 10 15 in respect of possession of, with intent to

fa) Affidavit of G.H. Strickland III, paras. 5, 10; and

In my opinion this material supports Ene maqistrate's

Count 12 This charges possession with intent to distribute, and the evidence in my view 1s sufficient to support the magistrate's

Count 13 This charges aumportation of a large quantity of Marlhuana at the Oyster Factory, Hilton Head Island, in or apout

This charges importation of 7,000 pounds oz marihuana at the residence of Butler, at Hilton Head Island, in or about March

The evidence pr2zncipally relied upon 15 that in the

This evidence, in my view, is sufficient, when taxen with the body of other evidence concerning Butler's activities, his control over the property, and his involvement with

smuggling. The allegation that the marihuana was unioaded at the

Iam not satisfied that the evidence 1s sufficient ta base a decision that Butier had vossessiton with intent to @istribute. There 1s a doubt, which should be resolvec in favour of the applicant. This count does mot, therefore, supoorr the

This charges importation of acproximately 7,000 pound

of marihuana at the Ovster Factory, Hilton Head Island, in or

T am of the opinion that there 15 no avidence sufficient

This count charges importation of approximately 30,000

pounds of nashish at the Oyster Factcry, Hilton Head

The evidence principally relied upon is as tollows:

(b) Affidavit of G.H. Strickland III, vara. 8; fo) Affidavit of W. MacDonald, paras. 5 and 46; (ad) Affidavit of T.M. Simmons, paras. 1-13; and

The last-mentioned deponent relates an cecastion in

January 1981 and it is not sossible with any cartainty to link it

to the subject of the charge, The other affidavits, read

context, are sufficient to provide evidence upon which the

Count 23 This count charges importation of approximately 7,300 pounds of marihuana during October 1990, at the Oyster Factory,

(a) Affidavit of G. Abell. para. 8; (b) Affidavit of R. Geman, para. 8B; (c) Affidavit of W. MacDonald, cara. 4; and

The link between Butler and the sffence chargea 15 not obvious. There is the fact of his vrasence, and fis ownership or

control over the cremises used. The affrdavric of Strickiand, in the paragraph mentioned, vefers to an entirely different date (December 1979) and cannot be relied upon to support the charge. A SiMllac onservation applies to para. + of MacDonald's evidence.

An operation closely involving Butler is disclosed.

Lat a <q BR ay nf ad n nd i Da Q FH H a Q fom a a c i] iB

made or permitted by Butler of the oremises in question, his frequent presence with others who were more directly iunvolved in the illegal importation, and his interest in what was being done, I think the aunference is open that, at the least, Butler was aiding or abetting the importation in question. This is an

offence under 5.236 of the Customs Act (see also 5s, Crimes Act 1914), and 15 extraditable. The precise form of

pleading is immaterial. I am not therefore in 4 position to say

The applications as arqued before me have been related

ecision to issue the warrants of commitment. There are in the decuments filed challenges to earlier decisions, such as decisions to issue warrants of aperenension, but these have nor been proceeded witn. Tne warrant of commitment nas not been

betore me, but from Form 5 in Schedule = to the Act, it appears

that it should set out the crimes alleqed against the fugitive.

There 1s no place provided, or indicated, for showing wnich co

those have been found to support the warrant. This may

a fa tH ree thought to be misleading, but the matter 15 debatable, a

not think If should make an order varying the prescribed form by

requiring, in effect, the addition of informaticn as to the

result of the proceedings. The issue of the warrant still stands

My attention was drawn to the fact that Form 5 twice

gvefers to the fugitive "Showing cause". I donot think this

ohrase implies that the onus of proof is on the fugitive.

In relation to Railev, my conclusion is than the warrant

1S not supported by counts 1, 2, 13, l+, 23, 24 and 38.

In relation to Butler, my conclusion 15 that the warrant

supported by counts 1, 2, 3, 10, lo, 1d, 24 and 28.

I should therefore dismiss each application. In view of my findings, I direct the Commonwealth <o bring in short minutes. These should be filed and served within eight (8) days, and any variations sougnt thereto should be filed and served within eight (8) days after service or the minutes. The matters will be relisted ona date to be fixed by the District Reaqistrar, on

application made by any party after the sxpiration of sixteen

I certify that this and the deve atten preceding mages are a trus copy of the Reasons for Judgment herein of his Ilcnour Mr. Justice Fux .- a} - ~ , a ip a ane aati WN, i)

• i Associate =| ~ Ot, Dated: 28 Neve MSS