Finally Sunde recounts the receipt of monies from Marks. At this point he appears to have continued in the company of Marks, travelling with him and receiving accommodation and monies from him from time to time. He says that he received $US200,000 firstly and another $US195,000 plus some further sums which totalled, in all, about $US500,000. He says that he passed on the majority of this to Jacobi "minus a small amount which I kept for my expenses". Nowhere in his statement does he explain what the agreement was as between he and the applicant, with respect to the monies.
Sunde goes on to say that Marks did decommission the tracking device; that he and Jacobi passed on "vital information" which allowed Marks to evade arrest for some time. He does not say what the information was. The Assistant District Attorney adds that, from what Sunde has told him, Jacobi conspired to assist the Marks' organisation to import. Such an assertion is not itself of any persuasive force.
The submissions for the applicant raised some questions which would be relevant to the admissibility of evidence. That is not the approach here to be taken. But those which focussed upon what weight aspects of the depositions ought be accorded are relevant to the question whether they provide a reliable basis for a belief. For example, factors such as the version of events given being wholly uncorroborated, and that the narrative was in all critical respects provided by an alleged co-conspirator, clearly may be taken into account in determining whether the facts provided are sufficiently influential. The exercise here is not simply one which
requires acceptance of what is put forward as what has occurred. And whilst one might say that it is not necessary, for the purpose of this evaluation, that an answer be provided to questions arising from the statements of events, if too many queries remain the conclusion may well be that it is, in substantial respects, unreliable.
With respect to Sunde's description of events, it contains too many strange and unexplained features for it to engender any belief. There is nothing provided to give the story by Sunde reliability or credibility in any important respect. It follows that one could not then proceed to consider those facts as disclosed in connexion with the elements of the offences said to have been committed. The requisite belief as to whether the applicant might reasonably be thought to have committed the offences in question, could not then be held. I shall outline what has led me to the view that the quality of the material could not reasonably ground any such belief.
It seems to me that, essential to an acceptance of the version of events given by Sunde, is an understanding of what was the true role played by the applicant and him. This is necessary not only to render the events narrated comprehensible. It could have explained how it was that each of Sunde and Jacobi came upon sensitive information not always connected with a task they were undertaking. It would assist in explaining the relationship between them with the investigating agents. It may have thrown light on why a decision was made by the applicant to act, in a seemingly inconsistent manner, against the investigation. As I have outlined, the agents simply describe him as a paid informant. But Sunde, in his statement, says that the applicant had informed him that he was seconded to Customs from an intelligence service. The
assertion is nowhere dealt with. There are features which suggest that he may have been more than an informant. For instance, it is said that he travelled to Australia with the investigating team when the device was placed on the vessel the Axel D. And it seems he was given transcripts to decode. Accepting for the moment that this was because it was within his area of expertise, it also seems that he was put in a position where he could make copies of them. If these matters do not suggest that he was more than an informer they tend to suggest that the investigation was in some respects unusual. At least that is the only view I have been able to reach in the absence of some further explanation of it and the parts people played in it.
So far as Sunde's position was concerned, I take it one is to assume that, from the outset, the applicant and the investigating agents accepted his story that he wished to detach himself from the illegal activities of the enterprise and to assist in its downfall. At no point however does he say whether this is true. On whose behalf he was acting is obviously of some importance. Then he appears to have re-attached himself to the enterprise after the deal is struck with Marks by remaining with him, accompanying him on travels and receiving money and hotel accommodation from him. And this is after he has told Marks that he and Jacobi obtained information in the course of working against him and the other members of the enterprise. One possibility is, then, that at all times he worked for the racketeers and was not bona fide in his work with the investigating team. That would further reduce the possibility that what he says could be counted as reliable.
What one can say, with some certainty, of Sunde is that he was involved in illegal and drug related activities for many years. He has now received five years non-reporting probation as the penalty for his part in the enterprise with Combs and others. It is not gone into, but it is likely to be the case that his cooperation with the authorities by providing this information has played a part. It is not said whether he will stand trial with respect to the charges on the indictment in question, charging both he and the applicant. In either event he has had incentive for providing some information and it may be that that incentive remains.
As I have said, the investigation itself can be seen to involve some unusual features. At least in the absence of explanation that seems to be so. Both Sunde and Jacobi were made privy to important information. This may be explicable. They are however permitted also to retain custody of what is apparently sensitive and valuable material, so that they are in a position to make copies for their own use. All that is explained by the agents is that the two were directed to treat the documents as confidential and not disclose them. And then, why it is that Sunde is made aware of the exact location of the device on the vessel remains a puzzle. It is nowhere explained why a person with his status and connection to the investigation is permitted to overhear conversations between agents as to such an important matter.
That brings one to consider the decision made by Sunde and Jacobi to sell information and the arrangement made as between them. The sudden change of direction by Jacobi is unexplained. I was simply asked to infer that the decision to sell the information was simply motivated by a desire for money. That is of course possible but the timing of it is strange. It occurs, suddenly, after they were
unsuccessful in persuading Combs to co-operate. But one is not told what this meant to them. And it is undertaken by someone who has acted in aid of investigations for many years. Then Sunde does not say what was agreed between them. All that one infers from what Sunde later does is that he had no interest in receiving any money for the part he played in it.
Then the question of what value the information could have had to Marks, naturally arises. He had already been told by Hayes that it was somewhere on the vessel, and he had access to an expert electronic engineer. How the sums of $US500,000 to be paid initially and $US5M later, were arrived at is not discussed. Nowhere is it explained what the value of the vessel was. Further, there is no reference to there being a particular importation afoot which had a particular value. There is, in short nothing to give the critical agreement any context.
None of these matters are in any way clarified. They remain entirely unsupported by any documents, for example, one which could establish the presence of Jacobi and Sunde in the United Kingdom at the relevant time.
The facts as described give rise to many questions but are, in my view, wholly insubstantial to provide grounds for a belief that the events occurred as asserted. A contrary view would require acceptance of them at face value. In turn this would involve the unquestioning acceptance of a somewhat bizarre version of events by a criminal who is also said to be a co-conspirator.
For completeness I should however address the question as to what the facts, as described by Sunde, disclose with respect to the offences in question. Before turning to that, it is first necessary to refer to the description of the offences provided and as to the elements said to constitute the offence.
The Elements of the Offence and whether they are satisfied
Both the Act, in its reference to the supporting documentation (s 19(3)(c)) and the Treaty (Article XI(2)(b) and (c)) require a description of the offence or offences the subject of the extradition proceedings. The Treaty adds that the legal description is to be by way of a "statement of law describing the essential elements of the offence" for which extradition is requested. This is in addition to material relating to punishment and limitation of proceedings which are presently not relevant.
The offence or offences in question, with respect to a person sought to be prosecuted, will be those referred to in the warrant, which is to be placed before the Magistrate: section 19(3)(a). Additionally the Treaty requires the charging document, here the Grand Jury's indictment, to be furnished. As one might expect, the warrant contains an abbreviated description of the offence. It is described as:
"Ľconspiracy to import and distribute hashish, a Schedule (I) non-narcotic controlled substance in violation of Title 21, United States Code, Sections 846 and 841(a)(I)."
In the indictment each of the applicant and Sunde are charged that, between about February 1985 and November 1986 they:
"Ľ did knowingly and intentionally combine, conspire, confederate and agree with each other and with persons known and unknown to the Grand Jury, to import and distribute a mixture and substance containing a detectable amount of hashish, a Schedule
I non-narcotic controlled substance, in violation of Title 21, United States Code 841(a)(I).
All in violation of Title 21, United States Code, Section 846."
The description provided in the deposition of the Assistant District Attorney is discursive and ranges over a number of pages. And, as will be seen, it is somewhat confusing.
Section 846, it is explained, provides that a person who conspires to commit an offence is criminally liable. In terms which would be understood in Australia it is said that a conspiracy involves two or more persons in some way or manner coming to a mutual understanding to try to accomplish a common and unlawful plan as charged in the indictment and that the person charged wilfully became a member of such conspiracy. It is further explained that, to become a member of a conspiracy, does not require full knowledge of all of the details of the unlawful scheme or the identity of all of the other conspirators. So, it is said, if a defendant "with an understanding of the unlawful nature of a plan, knowingly and wilfully joins in that plan on one occasion, that is sufficient to convict him for conspiracy even though he had not participated before and even though he played only a minor part". Pausing here, one might ask just what was the plan it is said the applicant and Sunde are said to have joined?
The last importation referred to in the deposition was that which is said to have occurred in March or April 1986. There is no other referred to as planned, in any way, up to the time the two men spoke to Marks. The terms of the agreement with Marks, to pay $US5M "from the proceeds after the drug shipment arrived and was
sold" might imply that each of Sunde and the applicant knew of some plan to import, although it raises the question whether they were referring to any shipment which might take place in the future or one that was actually proposed. It is not of course necessary that a shipment actually take place and that the plan to import succeed. But it is necessary, from what the Assistant District Attorney has explained, that there be a plan of some sort and that they have some appreciation of it even if in a general way. In that circumstance it would not suffice that they simply offer to assist in the promotion of any activity or ongoing criminal enterprise. I am unable to accept the submission made on behalf of the requesting country that, by attaching himself to the organisation, and by agreeing to assist it, the applicant committed the offence referred to in the indictment. The charge is not one of racketeering or joining an ongoing criminal enterprise. It is of joining with those who are intending to import and distribute drugs. And in the offence description provided that requires a plan, as to which his assistance is rendered. It could not suffice that there be some general intention to do so at some time in the future.
What is here missing, it seems to me, is a reference to any current plan to import or distribute drugs. I should add that part of the agreement, to "destroy the DEA case", (even if it were said how this was to be effected)would take the matter no further. The charge is not that the applicant agreed to aid them in some way to avoid detection or arrest or obstructed the appropriate authorities.
I turn then to the remaining description of the elements of the offences of importation and distribution of the drugs in question. I shall not set out, in detail,
what is said to be involved in the offences of importation and distribution. At least at one point it is explained that the objects of the conspiracy was importation of hashish into the United States from outside and the distribution of it. And, whilst there is no further discussion of the elements of the offence of importation, one might think what is involved is self-evident. What will be required to be shown is just what has been stated in connection with a description of the conspiracy, namely the bringing of drugs into the country. The confusion which arises is caused by the reference to the only other section mentioned in the charging document, (s 841(a)(1)), it being earlier explained that s 846 provides simply for criminal liability with respect to conspiracy. Although it is elsewhere said that the United States Government would need to prove both importation and distribution, it is plain enough from the several references by the Assistant District Attorney to s 841(a)(1), that it deals only with distribution. Indeed from a reference, in full, to the terms of the section, it appears that it is concerned with possession with intent to distribute.
Apart from observing that such descriptions are not of assistance and are not likely to have been what was intended, which would be that which would facilitate the Magistrate's determinations, the question which arises is what, if anything, follows when the section, said to be the subject of the charges, does not appear to involve any importation? But for these section references, I would have inclined to the view that what is involved in importation, a word having clear meaning in English, is sufficiently stated in the terms referred to in referring to the object of conspiracy. But the reference to only one section, and one dealing with distribution, gives rise to an uncertainty as whether the offence or offences, the subject of the extradition request
were intended to include importation.
Counsel for the requesting country submitted that one might simply treat the reference to importation in the indictment and warrant as surplusage. But if the relevant enquiry was one of intention, one would have to conclude, by reference to the facts provided concerning the offences, and in particular the alleged agreement with Marks, that it was some importation they were said to be assisting. However, and despite the uncertainty created by the offence description, the warrant and indictment are clear in their terms. The fact that they do not provide a section reference does not alter that. It seems to me, then, that so long as it is elsewhere stated that a conspiracy to import drugs is an offence and it is sufficiently described, the statutory requirements are met. The Assistant District Attorney's depositions do so. That is not, however, the end of the matter.
What the discussion earlier has brought into focus is the identification of the plan, the object of the conspiracy. As I have said, the description of the facts does not permit the conclusion that there was one current to import hashish or marijuana. But there is also nothing to suggest there was any plan to then distribute any drugs in the United States. There is simply no discussion of it. If an importation was shown to be planned (but it has not) one might infer that distribution is the most likely outcome. But what the offence of conspiracy to distribute requires, from the description given, is also a plan.
It seems to me, then, that even if one were to accept the story given, one would still be unable to conclude that there had been a conspiracy to import or to distribute drugs.
There is another matter which arises from the omission of the reference to the statutory provision concerning conspiracy to import. The description of the penalty applicable, which is required by both the Act and Treaty (s 19(3)(c)(i) and Article XI(2)(d)), here provided by the Assistant District Attorney refers only to the punishment relating to the conspiracy offence under s 846 and leaves unclear whether it applies regardless of the object of the conspiracy and whether it refers to one or both of distribution and importation. These were not however matters argued on the application and it is not necessary to conclude them. I ought add that my limited researches suggest that the importation of drugs and conspiracy to do same, appear to be elsewhere dealt with in Title 21, but this is not a matter which has been taken into account by me. And it may be that they could not, since the Court, on a review under s 21(1), is limited to the materials placed before the Magistrate (s 21(6)(d)) and those materials include the description of the offence.
Description of Conduct
I have dealt with the condition relating to the quality of the material to be provided with respect to the facts under s 19(2)(b) and have concluded that it has not been met. It also seems to me arguable that what was provided suffered another defect. Each of s 19(3)(c) and Article XI(2)(b) requires a description of "the conduct constituting the offence". That information is of course relevant to the question arising under the Act (s 19(2)(c)) which requires the Magistrate to have regard to the
conduct of the person sought to be extradited, and which is said to constitute the offence, to determine whether it would also have constituted an extradition offence in that part of Australia. (Here it would also be of assistance when considering the question posed by s 19(2)(b)). The grounds relating to the statutory provision were not pursued at the hearing. They did not, in any event, include one as to the requirement of such a statement and I have consequently not heard argument on the matter. I observe however that if more than a general narrative of events is required, as seems likely, it has not been provided.
Application for Stay
The applicant for review also sought to stay the extradition proceedings on a ground not raised before the Magistrate and based on material not before him. As I have just observed, this Court is limited in its review to the materials which were placed before the Magistrate. Nevertheless I have granted leave to file the affidavit material relied upon so as to complete the record and because it was submitted that what was involved was an abuse of this Court's processes. I do not consider there is merit in the application and I shall state the basis for it shortly.
It was submitted that the requesting country tailored the evidence before the Magistrate, and therefore also before this Court, by leaving out of the material original photographs which were put before the Magistrate in Hong Kong who heard other extradition proceedings. The Magistrate found them not to be a photograph of applicant. That was not however the basis for the ultimate refusal to extradite. If it were an exercise proper to the undertaken, I doubt that one could now draw a conclusion as to identity, by comparison, because of the age of the photographs. And whilst the provisions of s 19(5), which preclude the Magistrate from receiving evidence to contradict an allegation that the person engaged in conduct constituting the extradition offence, would not seem to foreclose a question as to whether the person before the Magistrate was the person the subject of the extradition request, I was not asked to determine that question. It was not suggested that the person represented here was not the person referred to in the request and charge documents. And so far as the requirements as to identity are concerned (Article XI(2)), but putting aside the purposes to which this information was intended to be put, the agents Wezain and Desm attend to this in their statements. Rather the applicant's submissions were to the effect that there was something untoward in the provision of photocopies of the photographs. I am unable to draw that conclusion or any as to the purpose for which these proceedings have been brought: see Williams v Spautz (1992) 174 CLR 509.
Conclusion
In my view the facts described in the depositions do not provide a reasonable ground for a belief that the applicant committed the offence or offences of conspiracy to import and distribute. Fundamentally that is so because they do not provide any basis in reason for concluding that the events occurred as recounted by the co-conspirator. To that may be added that, even if one were persuaded to the belief that events occurred as he narrated them, there would still not be a basis for a conclusion that the offence of conspiracy to import or distribute had been established, since there was no relevant plan adverted to.
The order of Mr C Owens SM made on 31 May 1995 will therefore be quashed. I will hear submissions as to any further orders necessary and as to costs.
I certify that this and the preceding twenty seven pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel.
Associate
Date: 8 November 1996
Counsel for the applicant: Mr Chaikin
Solicitors for the applicant: Witheriff Nyst
Counsel for the respondent: Mr Rice
Solicitors for the respondent: Commonwealth Director Public Prosecutions
Date of Hearing: 28, 29 August 1996
Place of Hearing: Brisbane
Place of Judgment: Brisbane
Date of Judgment: 8 November 1996