Riley v Commonwealth

[1985] HCA 82

High Court of Australia|1976-05-08|Before: Dawson JJ, Fox J

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Source facts

Court

High Court of Australia

Decision date

1976-05-08

Before

Dawson JJ, Fox J

Source

Original judgment source is linked above.

Judgment (46 paragraphs)

[1]

High Court of Australia Gibbs C.J. Wilson, Brennan, Deane and Dawson JJ. Riley v Commonwealth [1985] HCA 82

[2]

The questions for decision on these two appeals are whether the offence against the law of the United States of America known as continuing criminal enterprise is an "extradition crime" within the meaning of the Extradition (Foreign States) Act 1966 Cth, as amended ("the Act") and whether a person charged with such an offence is liable to extradition to the United States under the Act and the Treaty on Extradition between Australia and the United States of America ("the Treaty"), which came into force on 8 May 1976 and is set out in the schedule to the Extradition (United States of America) Regulations ("the regulations"). The provisions of the Act have been substantially amended by the Extradition (Foreign States) Amendment Act 1985 Cth, but in this judgment they will be cited as they were at the material times, before that Act was passed. The offence of continuing criminal enterprise is created by s. 848 of Title 21 of the United States Criminal Code and it appears that to prove that such an offence was committed in the present cases it is necessary to establish the following elements: 1. that the defendant violated certain provisions of the law, including those which make it an offence knowingly, intentionally and unlawfully to possess marijuana or hashish with intent to distribute it, or knowingly, intentionally and unlawfully to cause marijuana or hashish to be imported into the United States; 2. that such violation was part of a continuing series of violations by the defendant of the federal narcotics laws of the United States; 3. that such series of violations was undertaken by the defendant in concert with five or more persons; 4. that the defendant occupied the position of organizer or any other position of management with respect to such five or more persons in the said undertaking; and 5. that the defendant obtained substantial income or resources from the continuing series of violations.

[3]

Each of the appellants was charged on indictment in the United States with a number of offences against the law of the United States which involved the importation, possession and distribution of drugs. The charges in each case included a count of continuing criminal enterprise. The appellants were found to be in Australia and requests were made by the United States for their extradition. The procedure provided by the Act was followed and a magistrate in New South Wales, acting under s. 17(6) of the Act, by warrants committed each appellant to prison to await the warrant of the Attorney-General for his surrender. Each of the appellants then applied to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 Cth, as amended, to review the decision of the magistrate that the warrants should be issued. The matter came before Fox J. who held that the challenge to the issue of the warrants failed and dismissed the applications [1] . However, he declared that the appellants were not liable to be surrendered to the United States in respect of a number of the alleged offences, including that of continuing criminal enterprise, and that the warrants were not supported by those offences. The significance of this declaration was that it established that continuing criminal enterprise was not an offence for which extradition was granted, with the result that under Art. XIV(2) of the Treaty, an appellant, if extradited to the United States, could not be tried there for the offence of continuing criminal enterprise unless he had left the territory of the United States after his extradition and voluntarily returned to it, or he had not left the territory of the United States within thirty days after being free to do so, or the Commonwealth of Australia had consented to his trial for that offence. From this decision in each case the Commonwealth appealed to the Full Court of the Federal Court, which allowed each appeal and varied the order of Fox J. by deleting the declarations with regard to the offence of continuing criminal enterprise and in certain other respects not now material [2] . The appellants now appeal to this Court from that judgment whose effect, of course, is that in the United States they will be liable to be tried on the charge of continuing criminal enterprise, an offence which carries severe punishment.

[22]

The provisions of Arts. I, II, XIV(1) and XX make it clear that extradition to the United States may be granted only for an offence mentioned in Art. II, viz., those mentioned in pars. (1), (2) and (3) respectively. It is common ground that continuing criminal enterprise is not an offence mentioned in par. (1) of Art. II. In the Federal Court, Fox J. and the members of the Full Court agreed that continuing criminal enterprise is not an offence of the kind mentioned in par. (2) but the Full Court, reversing Fox J.., held that it is an offence of the kind mentioned in par. (3). With all respect, the view that par. (2) is not applicable to the present cases is not supported by an examination of the words of that paragraph. It is clear enough that the section is reciprocal in that it governs extradition from the United States to Australia and from Australia to the United States. In either case the paragraph poses two questions: (1) was the offence for which extradition is sought an offence made extraditable under the extradition laws of Australia?; and (2) was it a felony under the laws of the United States? It was held in the Federal Court that par. (2) applies only to whole offences and that is clearly correct, but it does not follow that continuing criminal enterprise is not an offence to which par. (2) refers. It is not in contest that continuing criminal enterprise is a felony under United States law. The question then is whether that offence is made extraditable under the extradition laws of Australia. For reasons already given that question must be answered in the affirmative. The offence is an extradition crime within s. 4(1A) of the Act. The learned members of the Federal Court appear to have thought that because, under s. 4(1A), an offence is an extradition crime if any of the acts or omissions by which it is constituted, or any equivalent act or omission, would constitute an offence if it occurred in New South Wales, the effect of the sub-section is that the single act or omission which is a component of the whole offence, rather than the whole offence itself, is an extradition crime. The provisions of s. 4(1A) show that that is not so. The sub-section has the effect in the present cases that because at least one act which formed an element of the offence of continuing criminal enterprise, or an equivalent act, would have constituted an offence against a law described in Sched. 1 if it had occurred in New South Wales, the offence itself is an extradition crime.

[42]

One of the most authoritative general statements of the preferable view of the requirement of double criminality remains that contained in the resolutions adopted by the Institut de Droit International at its 1880 Oxford meeting: "As a rule it should be required that the acts to which extradition applies be punishable by the law of both countries, except in cases where by reason of particular institutions or of the geographical situation of the country of refuge the actual circumstances constituting the offense cannot exist" (emphasis added). Of comparable importance for this country is the provision of Art. 10 of the London Scheme of 1966: "The return of a fugitive offender will either be precluded by law or be subject to refusal by law if the facts on which the request for his return is grounded do not constitute an offence under the law of the country or territory in which he is found" (emphasis again added; quoted in Ryan, International Law in Australia, 2nd ed. (1984), p. 199). It has been suggested that the requirement of double criminality will be satisfied whenever the acts alleged in the extradition request would involve the commission of a criminal offence in both the requesting state and the requested state: see, e.g., Levy, Double Criminality and the U.S.-U.K. Extradition Treaty, Brooklyn Journal of International Law, vol. VII (1982), pp. 482-483. That suggestion would, however, unduly discount the content of the requirement of double criminality if it would permit extradition in a case where conviction under the law of the requesting state was possible upon proof of some only of the acts alleged in the warrant. The principle of double criminality is satisfied where, and only where, any alleged offence against the law of the requesting state in respect of which extradition is sought would necessarily involve a criminal offence against the law of the requested state if the acts constituting it had been done in that state. As O'Dalaigh C.J. of the Irish Supreme Court commented in The State (Furlong) v. Kelly [9] (a case in which England was the requesting state and Ireland was the requested state):

[43]

The basic inquiry is to discover whether the several ingredients which constitute the offence specified in the warrant, or one or more of such ingredients, constitute an offence under the law of the [requested] State . If the English offence consists of, say four essential elements a+b+c+d, then a corresponding Irish offence exists only if it contains either precisely these same four essential elements or a lesser number thereof. If the only Irish offence that can be pointed to has an additional essential ingredient (that is to say, if the Irish offence may be defined as a+b+c+d+e), then there is no corresponding Irish offence for the simple reason that, ex-hypothesize, conduct a+b+c+d falls short of being an offence under Irish law or, in plainer words, is not an offence. It is fundamental to extradition that no one shall be extradited for acts or omissions (the offence alleged in the warrant) which, if repeated within the State, would not offend against our law. [Emphasis added.] That clear formulation of the content of the requirement of double criminality in the case of a composite crime has been subjected to some criticism on the ground that it unduly restricts the circumstances in which extradition should be granted. It is, in some respects, more demanding than the approach adopted in the passage from the judgment of Griffiths J.. in Reg. v. Governor of Pentonville Prison; Ex parte Budlong [10] which was cited by Lord Diplock in In re Nielsen [11] and which would seem to have been seen as over-restrictive by the Irish Supreme Court itself in Hanlon v. Fleming [12] : see Coutts, Double Criminality, Journal of Criminal Law, vol. 48 (1984), p. 93. It is not, however, open to valid criticism on the ground that it understates the requirement of double criminality since it effectively precludes extradition except in a case where conviction of the alleged offence against the law of the requested state would necessarily involve proof of some act or acts which would be criminal under the law of the requested state. 1. [1971] I.R. 132, at p. 141. 2. [1980] 1 W.L.R. 1110, at pp. 1122-1123; [1980] 1 All E.R. 701, at p. 712. 3. [1984] A.C. 606, at p. 624. 4. [1981] I.R. 489.

[44]

Once the content of double criminality is appreciated, it is apparent that the provisions of s. 4(1A) of the Act did not exclude it. To the contrary, the effect of s. 4(1A) is to give statutory effect to the requirement for the purposes of the Act. Ignoring the references to "equivalent" acts and omissions which are not here in point, the primary provision of s. 4(1A) of the Act (which corresponds with the definition of "extradition crime" in the 1966 originating Act) incorporated the requirement of double criminality in the case of a simple offence: "the act or omission constituting the offence would, if 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 primary provision was introduced in conformity with Art. 10 of the London Scheme of 1966 (see Ryan, op. cit., pp. 199-200). The notion of double criminality which it embodied went further than that customarily recognized in international relations in that it at least arguably, precluded extradition for a composite offence unless there was strict correspondence of the elements of the alleged offence with some identified offence under Australian law. Section 4(1A), which was introduced in 1973 (Act No. 171 of 1973), modified that over-restrictive statutory requirement by making special provision in relation to composite crimes such as "continuing criminal enterprise". That modification does not, however, involve any departure from the established principle of double criminality under international law. Indeed, it may well have been modelled upon the statement of the content of that principle contained in the extract from the judgment of O'Dalaigh C.J. in The State (Furlong) v. Kelly [13] which is set out above. Its effect is that, under s. 4(1A), a composite offence is not an "extraditable crime" unless any one or more of its elements "would, if 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".