United States of America v Griffiths

" The reference in the sub-section to an "equivalent act or omission" is to an act or omission which would be the same as the act or omission which is an element of the offence against the law of the foreign state were it not for the fact that the law of the foreign state requires (whether or not for reasons of jurisdiction) that the act or omission should have occurred in or in relation to some place or thing in or connected with the foreign state. For example, the act of importing narcotics into Australia is an "equivalent act" to the act of importing narcotics into the United States." 106 It seems to me that the test under s 19(2)(c) is the same as the test to which their Honours referred in Riley. A statement in writing setting out the conduct constituting the offence - s 19(3)(c)(ii) 107 The proper construction of s 19(3)(c)(ii) has been dealt with by a number of Full Courts. 108 As Hill and Hely JJ observed in De Bruyn v Republic of South Africa (1999) 96 FCR 290 at [7], the importance of identifying the "conduct constituting the offence" is readily apparent. This is because the same phrase is used in ss 19(2)(c) and 19(3)(c)(ii) and it is this conduct upon which the Magistrate is to determine whether the double criminality requirement is satisfied. 109 The legislative scheme was explained in Zoeller v Federal Republic of Germany by Lockhart, Gummow and Hill JJ (1989) 23 FCR 282 ("Zoeller") at 299-300. The magistrate is charged with the task of determining whether the double criminality test is satisfied and that there is no extradition objection. The magistrate is confined to the s 19(3)(c)(ii) statement in determining whether the conduct of the person would have constituted an extradition offence in Australia. Matters going to the innocence of the alleged offender are irrelevant and are excluded by s 19(5). 110 That there has been a foreign crime is proved by the authenticated warrant referred to in s 19(3)(a) of the Act. The facts relevant to the crime are proved by the statement under s 19(3)(c)(ii). All that the Magistrate is required to do is to determine whether the conduct referred to in the 19(3)(c)(ii) statement is an offence under the law of the state or territory of Australia or under Commonwealth law; Zoeller at 300. 111 In De Bruyn, Gyles J summed this up at [30] by saying that the evident purpose of the s19(3)(c)(ii) statement is to enable the person whose extradition is sought, and the magistrate, to determine whether the double criminality requirements of s 19(2)(c) are satisfied. His Honour dissented in the result but it seems to me that this statement accurately identifies the purpose of s 19(3)(c)(ii) consistently with the legislative scheme as explained in Zoeller. 112 What then is required of the statement of conduct is "a statement of what is alleged to have been actually done or omitted, not a mere statement of the charge"; see Zoeller at 297. 113 It is the elements or ingredients of the charge, not the particular evidence adduced to prove the acts or omissions, which must form the content of the s 19(3)(c)(ii) statement; see Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 519 (Gummow J); Zoeller at 294; De Bruyn at [11] and [31] cf Linhart v Elms at 587-588 (Foster J). A simple definition of the offence will not suffice; McDade v United Kingdom [1999] FCA 1868 ("McDade") at [16] (Kenny J). 114 As Kenny J said in McDade at [16]:- "… What is being sought is a clear and coherent statement of the actual acts and omissions which are said to constitute the offence. The statement must "speak with sufficient specificity" and coherence to serve its purpose: see Linhart v Elms at 583 per Gummow J and Wiest at 483 per Sheppard J. The statement must be such as to permit the magistrate charged with conducting proceedings under s 19 to be satisfied, one way or the other, as to whether the conduct said to constitute the offence in the extradition country or the equivalent conduct, would constitute an extradition offence had it taken place in that part of Australia where the proceedings are being conducted: see Todhunter at 90, citing Riley v Commonwealth (1985) 159 CLR 1 at 18-19 per Deane J, and De Bruyn at par 7 per Hill and Hely JJ." 115 The statement must not be so vague and general and so disorganised that the relevant acts or omissions cannot be reasonably identified; McDade at [17]. Whether the Magistrate misdirected himself 116 In my respectful opinion, the Magistrate approached the matter with a number of fundamental misconceptions. 117 First, internet fraud, though relatively new, involves nothing more than an application of the legal principles applicable to communication by post and telegraph. As Gleeson CJ observed in Lipohar, these developments commenced over 100 years ago. True it is that the Internet has a wider reach and wider field of applications but the problem of widely disseminated communication is, as Gleeson CJ, McHugh, Gummow and Hayne JJ pointed out in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at 605 ("Gutnick") , much older than the Internet and the World Wide Web. 118 As their Honours said in Gutnick at 605, the law has had to grapple with cases of this kind ever since newspapers and magazines, and later radio and television came to be made available to large numbers of people over wide geographic areas. To this may be added telephones, mobile phones and fax machines. 119 Second, the fact that Mr Griffiths is not, as the Magistrate described him, a "fugitive" fleeing from the United States is irrelevant. This was not a bar to extradition in Schoenmakers v Director of Public Prosecutions (1991) 108 FLR 457, where the person whose extradition was requested by the United States, returned to Australia from Holland where his illegal activities took place. 120 In any event, "fugitive" is merely a term which describes the person whose extradition is requested. There is no requirement that the person be fleeing the jurisdiction of the requesting state. A well known example of this is to be found in Regina v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [2000] 1 AC 61 in which Spain sought the extradition of General Pinochet from England to Spain on charges of the murder of Spanish citizens in Chile. 121 Third, it is wrong to characterise the acts of Mr Griffiths as acts physically committed in New South Wales. It is made plain in Doot and Lipohar that conspiracy is a continuing offence. Even if the conspiracy was formed outside the jurisdiction, the agreement is performed in it when a co-conspirator, acting as agent of the others, carries out an overt act inside the jurisdiction. 122 Fourth, it is not correct to say that conspiracy to breach copyright in the jurisdiction of the requesting state is an unusual kind of extradition offence. Regina v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Government of USA [2000] 2 AC 216 is an example of such an extradition offence. There, the United States Government sought the extradition from England of a person charged with conspiracy to secure unauthorised access to the American Express computer system with intent to commit fraud. 123 Moreover, here, the relevant treaty offence was not an extra-territorial offence within Article 1(4) of the Extradition Treaty. It was an offence punishable under the laws of the United States which included conspiracy and aiding and abetting; see Article 1(1) and Article 1(2) of the Extradition Treaty. 124 For reasons set out below, I do not agree with the learned Magistrate that the transposition process required by the double criminality principle would stretch the "conduct of the person" or "equivalent conduct" beyond recognition. It may well be that the Magistrate held this view because he started from the proposition that Mr Griffiths' acts were committed in Australia. Instead, as the above authorities show, the effect of the indictment is that the acts were committed in the United States. Indeed, that is what is stated in both counts in the indictment. Whether there was a statement in writing setting out the conduct constituting the offence - s 19(3)(c)(ii) 125 As Wiest, Zoeller, De Bruyn and McDade make clear, what is required to satisfy s 19(3)(c)(ii) is a statement of the elements or ingredients of the conduct, not the evidence. The statement must speak with sufficient specificity and coherence; McDade at [16]. 126 The liberty of the subject is at stake and it is not permissible to resolve any ambiguity in favour of the United States; see De Bruyn at [28] see also Cabal v United Mexican States (2002) 186 ALR 188 at [129] (French J). 127 It seems to me that the necessary elements or ingredients of the conduct constituting the offence of conspiracy are stated with sufficient specificity and coherence in Count One of the indictment. It is permissible to have regard to the content of the balance of the supporting documents, such as the affidavit of Mr Wiechering. As Finn and Dowsett JJ said in Dutton v O'Shane at [56], it is well established that the statement may be constituted by a number of documents. However, here, I do not think that Mr Wiechering's description of the conduct adds in any substantial way to the conduct stated in the particulars contained in paragraphs 2 to 9 of the indictment. 128 Paragraph 1 of the indictment in Count One states the offence. If that were all that was specified, it would be little more than a simple statement or definition of the offence which would not suffice. 129 However, the particulars in paragraphs 2 to 9 which I have referred to in some detail above, set out a reasonably clear and coherent statement of the conduct which is said to constitute the offence of conspiracy charged in paragraph 1 of the indictment. Those paragraphs set out in a sufficiently precise and coherent way the necessary elements of the offence of conspiracy. These are, as explained by Mr Wiechering, the mutual understanding of the parties to accomplish the unlawful purpose of copyright piracy, that Mr Griffiths intentionally joined the conspiracy knowing its unlawful purpose and that one or more of the parties knowingly committed at least one of the overt acts described in the indictment. 130 As I have already said, one overt act is required and five are set out in indictment. They are stated in reasonably clear and coherent terms. 131 Counsel for Mr Griffiths urged upon me the proposition that the statements in the indictment were generalised or "conclusory". He submitted that they begged the question as to precisely what Mr Griffiths agreed to do. 132 However, I reject that submission. In my opinion, it is quite plain from the particulars that Mr Griffiths is said to have agreed to join, and later lead, DOD, an unlawful organisation which had agreed to steal, pirate and distribute copyright works. This is also to be inferred from the overt acts stated. 133 Counsel for Mr Griffiths submitted in relation to the statement of conduct of the offence of conspiracy that the statement was inadequate because it did not indicate whether there was one conspirator or more than one. He pointed to the statement in Count One that Mr Griffiths conspired with five named persons and a sixth person having the screen name of "Evil Tea" and contrasted this with the statement made in paragraph 5 of the indictment that the membership comprises approximately 60 persons. 134 However, in my view, it is plain that only one conspiracy is charged, namely the conspiracy with the six persons referred to in paragraph 1 of Count One. This is not a case where a number of separate conspiracies stemming from a central arrangement are charged against Mr Griffiths; cf Gerakiteys v The Queen (1983-84) 153 CLR 317. 135 The conduct constituting the offence of copyright infringement is stated in Count Two of the indictment and in the statements contained in the affidavits of Mr Wiechering and Ms Gable. Count Two may be insufficient by itself because it merely alleges infringement by reproduction and distribution of ten or more copyright works. 136 However, Mr Wiechering's affidavit describes in paragraphs 38 to 40 acts done by Mr Griffiths in reproducing and distributing copyright works without the authorisation of the copyright owner. Ms Gable's list of the software releases "cracked & distributed" by DOD contains a statement of the copyright items which Mr Griffiths is said to have infringed as a principal. It is true that the acts are attributed by Ms Gable to DOD rather than Mr Griffiths but he is stated in the indictment to have been a council member and leader of DOD during this period. 137 Counsel for Mr Griffiths submitted that Ms Gable's list did not provide a sufficient statement of the conduct because it was necessary, so he said, for there to be a statement of who was the author, where the work was first published, whether the author was an employee of a company, and the citizenship of the author. This was said to be required so that the Magistrate could then determine, for the purpose of the double criminality rule, whether there would be an infringement under s 35 of the Copyright Act. 138 However, in my opinion, this submission cannot be sustained. All that is required in the statement of the conduct is the ingredients. The authorities to which I have referred make it plain that the evidence is not required. The effect of the submission is that chapter and verse of the evidence must be stated. That is contrary to all of the authorities on this question. 139 The ingredients of the conduct constituting the offence of aiding and abetting are contained in the indictment and in paragraphs 38 to 42 of Mr Wiechering's affidavit. 140 Mr Wiechering explains the elements of the offence in paragraph 37. I will not repeat them. I set out the elements at [68] above. Although only one example is given in paragraph 38 of Mr Wiechering's affidavit, it seems to me that this is sufficient to provide the ingredients of the offence of aiding and abetting the person known as ParisAngel to infringe copyright in the 1899 titles downloaded or uploaded by that person. 141 There is a sufficient statement of the copyright in the works in paragraph 38 of Mr Wiechering's affidavit. The element of infringement by reproduction or distribution is stated in paragraph 40. Wilfulness is sufficiently set forth in paragraph 41 which states that when Mr Griffiths granted access to the site to ParisAngel, he acted deliberately to facilitate the reproduction and distribution of copyright works. 142 The requirement that there be reproduced or distributed during a 180 day period, at least 10 copies of the works, with a retail value of more than $2,500 is met by statements to that effect in paragraphs 38 and 39 of Mr Wiechering's affidavit. 143 It follows in my opinion that there is a statement in writing under s 19(3)(c)(ii) setting out the conduct constituting the offences of conspiracy to infringe copyright as set forth in Count One, copyright infringement as a principal as set out in Count Two and aiding and abetting the infringement of copyright by ParisAngel. However, I do not think that there is a statement in writing setting out the conduct constituting the offence of aiding and abetting any person other than ParisAngel. Whether the double criminality requirement is satisfied 144 In my opinion, in the present case the question of whether the double criminality test is satisfied is relatively straightforward. This is not a case where the exercise of practical judgment as to whether the conduct constituting the offence satisfies the necessary elements is a difficult one. 145 The effect of the double criminality test as stated in the authorities is that the conduct constituting the offence, when transposed to Australia and viewed through Australian eyes, would constitute an offence under the law of New South Wales law. In the present case, the conduct constituting the offences seems to me to plainly satisfy that test. 146 This is not a case, such as Dutton v O'Shane, where the labels describing the offences in the requesting state were in different terms from local law. Nor does it involve the need, as occurred in Linhart v Elms, to characterise the institutions administering the law in the requested state and to determine whether there is a correspondence between the legal systems of relative positions and functions. 147 The conduct constituting the offence of conspiracy in the requesting state, when viewed through Australian eyes, contains precisely the same elements as are found in s 11.5 of the Criminal Code. Each jurisdiction contemplates the elements of a mutual understanding or agreement, intention by the person charged and at least one other party, to commit an unlawful act and the commission of one overt act. 148 Nor is this a case of the kind which was discussed in the Irish case of The State (Furlong) v Kelly [1971] IR 132 at 141 to which Deane J referred in Riley where the law of the requested state has an additional essential ingredient which is not found in the law of the requesting state. 149 It is true, as counsel for Mr Griffiths pointed out, that the charge is conspiracy to infringe copyright and, under the law of New South Wales, the offence of copyright infringement is limited to acts done in Australia. But it does not follow that the conduct constituting the offence with which Mr Griffiths is charged, namely conspiracy to infringe copyright in the United States cannot be transposed here for the purpose of the double criminality rule. Indeed, to suggest otherwise would be contrary to the statement of principle as explained by Gibbs CJ, Wilson and Dawson JJ and by Deane J in Riley. It would also be contrary to the approach stated by the Full Courts in Linhart v Elms and Dutton v O'Shane. 150 The exercise of practical judgment which the Magistrate was required to carry out was to consider whether, if Mr Griffiths, while physically located in the United States, made an agreement, perhaps initially in the United States, to steal, reproduce and distribute Australian copyright works by obtaining access to a computer system situated in Australia, and by carrying out five overt acts of the conspiracy, either by himself or through co-conspirators in Australia, his conduct would necessarily involve the offence of conspiracy to infringe copyright in New South Wales. The answer to this is plainly that it would constitute such an offence. 151 It is quite irrelevant to this exercise that the conspiracy may have been entered into in the first instance outside the jurisdiction. In any event, that proposition is likely to be incorrect because of the rules which apply to the formation of an agreement by electronic means. 152 Moreover, the carrying out of the overt acts of the conspiracy by co-conspirators inside the jurisdiction has the effect that the agreement is performed within that jurisdiction. 153 Turning to the conduct constituting the offence of copyright infringement, the elements of the offence are virtually identical in the United States and in New South Wales. Each requires the distribution of an article or work wilfully or with knowledge of infringement. Section 132(2)(b) of the Copyright Act requires the infringement to be to an extent that affects prejudicially the owner of the copyright. This element corresponds to the requirement of the United States law that the act be for the purpose of commercial advantage or private financial gain in respect of an article with a total retail value of more than $1,000.00. 154 The United States offence of copyright infringement includes the element of "reproduction or distribution" whereas s 132(2)(b) of the Copyright Act prohibits distribution without referring to reproduction. Nevertheless, reproduction is a necessary step in distribution. It follows in my opinion that there is the necessary degree of correspondence in relation to this element. 155 So too, the conduct constituting the offence of aiding and abetting corresponds with the elements of aiding and abetting stated in s 11.2 of the Criminal Code. Each requires the element of wilfulness to aid or abet or counsel or procure the commission of the offence. 156 All of the offences carry a penalty of imprisonment for a period of more than twelve months in the United States and in Australia.

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