Ngo v United States of America [2009] FCAFC 87

FEDERAL COURT OF AUSTRALIA

Ngo v United States of America [2009] FCAFC 87

EXTRADITION– magistrate's determination under s 19 of Extradition Act 1988 (Cth) (the Act) that appellant eligible for surrender to United States of America – indictment in USA against appellant and nine other defendants in California and elsewhere alleging conspiracy by them knowingly and intentionally to distribute drugs in USA and elsewhere contrary to sections 846 and 841(a)(1) of Title 21 of US Code – allegation that appellant had, by mobile telephone in New South Wales, agreed with co-conspirators overseas that drugs would be delivered into Sydney for redistribution in Australia – allegation that USA co-conspirator and Canadian co-conspirator arranged to send drugs to appellant in Sydney for redistribution in Australia – whether the materials produced before magistrate gave reason to believe that appellant was more than a buyer, that is, was part of the conspiracy as charged – whether dual criminality – whether s 19(2)(c) of the Act required a hypothesis in all cases that facts differed from those alleged. Acts Interpretation Act 1901 (Cth) s 19A Criminal Code Act 1995 (Cth) Criminal Code paras 11.5, 302.2 and 307.2 Drug Misuse and Trafficking Act 1985 (NSW) ss 25, 26 Extradition Act 1988 (Cth) ss 3(a), 5, 7, 10, 11, 16, 19, 21, 22 Title 21 United States Code sections 841(a)(1), 846 Treaty on Extradition between Australia and the United States of America done at Washington on 14 May 1974 as amended by the Protocol done at Seoul on 4 September 1990 Article XI

Extradition (United States of America) Regulations (Cth) reg 3, 4

Federal Republic of Germany v Parker (1998) 84 FCR 323 discussed Hermanowski v United States of America (2006) 149 FCR 93 cited Parker v Federal Republic of Germany (1997) 95 ACrimR 174 referred to Pasini v United Mexican States (2002) 209 CLR 246 referred to