ep CATCHWORDS -ADMINISTRATIVE LAW - Extradition to United States - Alleged drug offences - Whether regulations to bring into force Treaty with United States may extend operation of Act - Onus of proof of matters referred to in s.13 of Extradition (Foreign States) Act 1966 - Requirement of double criminality in relation to extradition to United States - meaning of "an offence against the law relating to dangerous drugs, narcotics or pyschotropic substances" under Australian law and under American law - Whether having drugs in possession constitutes an "act or omission" - Principles applicable to extradition on conspiracy count - Extradition sought on American offence of "continuing criminal enterprise" - Whether extradition available in relation to offence not known to Australian law - Effect of Treaty requirement that evidence be found sufficient, according to Australian law, to justify trial if the offence had been committed in Australia - Evidence admissible to prove offence - Variances between evidence and particulars of offences - Sufficiency of evidence to justify trial on various charges. Extradition (Foreign States) Act 1966 ss. 4, 9, 10, 11, 12, 13, 17, 26 . Extradition (United States of America) Requiations cl 3, Schedule COMMONWEALTH OF AUSTRALIA V ROBERT LESLIE RILEY, CLYDE EVANS, KEVIN WEBB, FRANK MACKENZIE G.80 OF 1983 COMMONWEALTH OF AUSTRALIA V WALLACE EDWARD BUTLER, CLYDE EVANS, KEVIN WEBB, FRANK MACKENZIE, ERIC QUARMBY G.81 OF 1983 CORAM SMITHERS, SHEPPARD AND WILCOX JJ DATE 11 DECEMBER 1984 PLACE SYDNEY ABS Av x, ¢ f spec LN NN ree] coe ne ATHLR MA Ste. chet § we IN ie) 8 +. NEW SOUTH WALES DISTRICT REGISTRY No. G.80 of 1983 ~~ ween M2) DIVISION BETWEEN : COMMONWEALTH OF AUSTRALIA Applicant AND: ROBERT LESLIE RILEY First Respondent CLYDE EVANS _ Second Respondent KEVIN WEBB Third Respondent FRANK MACKENZIE Fourth Respondent ORDERS CORAM SMITHERS, SHEPPARD AND WILCOX JJ DATE ll DECEMBER 1984 PLACE SYDNEY : THE COURT ORDERS THAT 1. The Appeal be allowed. 2. The orders made by Fox J be varied: (a) by deleting para 1; (b) by omitting from para 2 any reference to counts 13 or 14; (c) by omitting from para 3 any reference to counts 13, 14 or 38 + poems (ay by inserting in para 4 references to counts 13,-14 and 38 (e) by deleting para 6 and by substituting an order that the Applicant pay to the Fourth Respondent three~quarters of its costs of the Application. 3. The Cross-Appeal be dismissed. 4, "The First Respondent pay to the Appellant three-quarters of its costs of the Appeal and of the Cross-Appeal. it -- - 1, j ' IN THE FEDERAL COURT OF AUSTRALIA if "NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION 1a of ; : 4 L- No. G.81 of 1983 COMMONWEALTH OF AUSTRALIA Applicant WALLACE EDWARD BUTLER First Respondent CLYDE EVANS Second Respondent KEVIN WEBB Third Respondent FRANK MACKENZTE Fourth Respondent ERIC QUARMBY Fifth Respondent ; BETWEEN : j - AND: ORDERS CORAM SMITHERS, SHEPPARD AND WILCOX JJ DATE 11 DECEMBER 1984 PLACE SYDNEY THE COURT ORDERS THAT 1. The Appeal be allowed. 2. (a) (b) by deleting para 1; 18 or 24; by omitting from para 2 any reference to The orders made by Fox J be varied: counts 16, oa etn hinged ntepeatstenite 4 ne eet 8 (c) by omitting from para 3 any reference to counts 16, 18, 24 or 38; (d) by inserting in para 4 a reference to counts 16, 18, 24 and 38; (e) by deleting para 6 and by substituting an order 7 that the Applicant pay to the Fourth Respondent ' three-quarters of its costs of the Application. The Cross-Appeal be dismissed. The First Respondent pay to the Appellant three-quarters its costs of the Appeal and of the Cross-Appeal. ete Sthbad taste or fom lieitt > ee oe , i IN T OF AUS NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION BETWEEN BETWEEN No. G.80 of 1983 COMMONWEALTH OF AUSTRALIA Appellant ROBERT LESLIE RILEY First Respondent CLYDE EVANS Second Respondent KEVIN WEBB Third Respondent FRANK MACKENZIE Fourth Respondent No. G.81 of 1983 COMMONWEALTH OF AUSTRALIA Appellant WALLACE EDWARD BUTLER First Respondent CLYDE EVANS Second Respondent KEVIN WEBB Third Respondent PRANK MACKENZIE Fourth Respondent ERIC QUARMBY Pifth Respondent "a on mn & 4 . ai aac 2. REASONS FOR JUDGEMENT .CORAM SMITHERS, SHEPPARD AND WILCOX JJ DATE 11 DECEMBER 1984 PLACE SYDNEY THE COURT: The Court has heard together two separate proceedings, each involving an appeal and a cross appeal against decisions of Fox J, in relation to applications by each of the first respondents, Robert Leslie Riley and Wallance Edward Butler under the Administrative Decisions (Judicial Review) Act 1977, to review various decisions in relation to their extradition to the United States of America in connection with certain alleged offences related to drugs. In each case. Fox J held that Mr Mackenzie SM, the fourth respondent, was correct in issuing warrants committing each of the first respondents to prison to await the warrant of the Attorney-General for his surrender for extradition but that his order should be varied so as to limit the charges upon which the extradition should be based. The Commonwealth of Australia appeals against that limitation, in relation to most of the charges, and Messrs Riley and Butler each appeal against so much of his Honour's order as affirmed the magistrate's decision. We have been concerned at the time which has elapsed in the disposal of the appeal, especially having regard to the fact that the leet atten Manteno rs Sgitaee first. : rebptiatents: have been in custody during that time. The eee Novamty (66%. Sheet wre s decision#@6f Fox J were announced on 28 February 1984. The aT? yrot wake "Wr ue pes eh tS eR eet i Pete, CG es, various Notices of Appeal and of Cross-Appeal were filed within the ensuing month. A period of four days - counsel's estimate - was set aside for the hearing, commencing on 12 June 1984 but this proved inadequate. The matter was adjourned upon the basis that the. parties would supply written submission analysing the material respectively said to constitute or not to constitute evidence sufficient to justify the making of an order in respect of particular charges and that the Court would afford to counsel an opportunity to speak'to those submissions. We had in mind a single day in early August but we were informed that three further days would be required, a prophecy which has been fulfilled. The parties, and especially the first respondents, particularly desired to have the benefit of representation by the counsel who had earlier appeared. It was not possible, consistently with that wish, to fix dates earlier than 5, 6 and 7 November for completion of the hearing. The Application of the Act The Extradition (Foreign States) Act 1966 provides that where, after the commencement of the Act, an extradition treaty - including an amending treaty - comes into force between Australia and a foreign state, being a foreign state to which the Act applied at the time of the coming into force of that treaty (as was the United States), regulations may provide that the, Act = omertoe 4. Led moti Re ot applies-in gelation 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" - see 3.10(1). Such limitations, conditions, exceptions or qualifications may, in relation to a particular foreign state, be expressed in the form that the Act applies in relation to that state "subject to the" relevant "extradition. treaty" - see 3.10(2). The effect of such regulations is to make the Act apply in relation to that foreign state subject to any relevant limitations, conditions, exceptions or qualifications: see s.1l. Although the contrary argument was put on behalf of the Commonwealth, it is clear that the regulations may limit but not extend the scope of the Act. The words "limitations", "conditions" and "exceptions" are all words of restriction, not extension, and the eiusdem qeneris principle requires that, in this context, the word "qualifications" be read in the same way. This coincides with the view taken in the House of Lords in relation to the collocation of words "limitations. restrictions, conditions, exceptions. and qualifications" in the United Kingdom legislation: see In_re Nielsen £19841 2 WLR 737 at p 741. On 14 May 1974 a Treaty on Extradition was signed on behalf of the governments of Australia and of the United States of America, replacing, as between the parties, the Treaty on Extradition Between Great Britain and the United States on 22 December, 1931, as made applicable to Australia. The new Treaty ronareren diy ay eae te ball we! patente ¢ Mt et SBN Seta 5. BESET: - ee oor came ifta e#fect on 8 May 1976. Regulation 3 of the Extradition _ Wnited States of America) Requiations made on 27 August 1976 -gave effect to that Treaty by making the Act applicable to it. The Regulation provides: — "3(1) The Act applies in relation to the United States of America subject to the Hijacking of Aircraft Convention after the time of coming into force of that Convention. (2) The Act applies in relation to the United States of America subject also to the Protection of Aircraft Convention after the time of coming into force of that.Convention. (3) The Act applies in relation to the United States of America subiect also - (a) to the Treaty; and (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." Section 9(2) of the Act refers to limitations etc upon the operation, in relation to a particular state, of an Order in Council under the (Imperial) Extradition Acts, 1870 to 1935. The effect of regulation 3 is that the provisions of the Extradition (Foreign States) Act apply to requests for the extradition of a "fugitive" made by or to Australia to or by the United States of America. However, in relation to such requests, the terms of the Act are made subject to any limitations, conditions, exceptions ee eek bare man 6. slo. ceeere or qualifications to be found in the Treaty on Extradition between those two countries. The Scheme of the Act The term "fugitive" is defined by s.4 of the Act as including "a person accused of an extradition crime that is alleged to have been committed ... at a place in a foreign state or within the jurisdiction of, or of a part of, a foreign state". A reference in the Act to a fugitive from a foreign state is to be' read as including a reference to a fugitive accused of an extradition crime that is alleged to have been committed at a place in that state or within the jurisdiction of, or of a part of, that state: see s.4(2). The concept of an "extradition crime" is fundamental to the operation of the Act. Section 4(1A) provides: "4(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. and 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, if it took place in, or within the jurisdiction of, the part of - Australia where the person accused ... of the offence is found, constitute an offence against the law in force in that part of Australia that - (a) is described in Schedule 2; or ". 4 ~ t sab TUM ade Stee 4 7. . (bk 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." It its tmportant to note three matters arising out of this definition. First, the concept of "extradition crime" extends not only to a crime constituted by a single act or omission but also to a crime constituted by two or more acts or omissions. Secondly, an offence against the law of a foreign state, involving two or more acts or omissions, will be an "extradition crime" if any of the relevant acts or omissions, or any equivalent act or omission, would constitute an offence under the law of the part of Australia where the accused person is' found. It is not necessary that there be a local offence having as an element each one of the acts or omissions which comprise the foreign offence. Thirdly, not every act or omission constituting a local offence amounts to an "extradition crime". The relevant offence must be one described in Schedule 1 of the Act or one which would be so described if the relevant description contained a reference to any intent, state of mind or circumstance of aggravation, necessary to constitute the offence. Schedule 1 of the Act lists 35 offences or types of offences including: 8. "34. An offence against the law relating to dangerous drugs, narcotics or psychotropic substances. 35. Aiding, abetting, counselling or procuring the commission of, being an accessory before or after the fact to, or attempting or conspiring to commit, an offence described in a preceding item in this Schedule". - Part III of the Act deals with extradition to foreign states. This Part includes ss.12 and 13, dealing with the liability of a fugitive to be surrendered: "12. Where this Act applies in relation toa foreian state, every fugitive from that state. is liable, subject to this Act and to any limitations, conditions, exceptions or qualifications to which the application of this Act in relation to that state is subject, to be apprehended and surrendered to that state as provided by this Act and is so liable whether the offence to which the requisition for the surrender of the fugitive relates is alleged to have been committed, or was committed, before or after the commencement of this Act or before or after the time when this Act commenced to apply in relation to that state. 13.(1) A person is not liable to be surrendered to a foreign state if the offence to which the requisition for his surrender relates is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, an offence of a political character. (2) A person is not idable to be surrendered to a foreign state unless provision is made by a.law of that state, or by a treaty in force between Australia and that state, or that state has given an undertaking, by virtue of which the person will not, unless he has left, or had an opportunity of leaving, that state - 9. .(a) be detained or tried in that state for any offence that is alleged to have been committed, or was committed, before his surrender other than - (i) the offence to which the requisition for his surrender relates or any other offence of which he could be convicted upon proof of the facts on which that requisition was based; or (11) any other extradition crime in respect of which the Attorney-General consents to his being so detained or tried, as the case may be; or (b) be detained in that state for the purpose of his being surrendered to another country for trial or punishment for any offence that is alleged to have been committed, or- was committed, before his surrender to that state other than - (1) an offence of which he could be convicted upon proof of the facts on which the requisition referred to in paragraph (a) was based; or (il) any other offence described in Schedule 1 in respect of which the Attorney-General consents to his being so detained. (3) A person who is held in custody, or has been admitted to bail, in Australia in respect of an offence that is alleged to have been committed in Australia, or is undergoing a sentence for a conviction in Australia, is not liable to be surrendered to a foreign state until he has been discharged from custody, or the recognizances upon which he was admitted to bail have been discharged, as the case may be, whether as a result of his acquittal, on the expiration of his sentence or otherwise. (4) A person is not liable to be . surrendered to a foreign state in respect of an offence if he has been acquitted or peer arenes 10. - pardoned by a competent tribunal or authority in any country, or has undergone the punishment provided by the law of, or of a part of, any country, in respect of that offence or of another offence constituted by the game act or omission as that offence." We interpolate that, although the point was not taken either before the learned magistrate or before Fox J, the first respondents submitted to us that the magistrate had erred in failing to hold that the absence of evidence to negative the existence of each of the matters referred to in s.13 was fatal to the claim for extradition. We think that this submission misplaces the burden of proof, that the scheme of the Act is to impose liability under s.12 and to provide various exceptions from that liability in s.13. We apply the principle enunciated by the High Court of Australia in Vines v Djordjevitch (1955) 91 CLR 512 at pp 519-520: " "But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter". Section 13 does assume liability to surrender but denies that liability in certain specified circumstances. The Act, by 3.17(6}(c), provides to the person against whom extradition is sought the opportunity to give evidence, including evidence of . van oa Dae ed ne at li. the existence of any of such circumstances. It is for the ._ . fugitive to adduce evidence of the existence of any of such -circumstances; there is no onus upon the Commonwealth to negative them. We note that this accords with the view taken in the United Kingdom of the equivalent provision in the Extradition Act 1870 which provides that "a fugitive criminal shall not be surrendered" in certain events: see Hartley Booth "British Extradition Law and Procedure" (1980) pp 82-83, Reqina v_ Governor of Brixton Prison; ex parte Kolczynski £19551 1 QB 540 at pp 549-550. In any event the evidence before the magistrate clearly negatived the matters in subss (1) and (3) of s.13 whilst, if all the offences mentioned in Article II are offences in relation to which there can be extradition from Australia, Article XIV of the Treaty answers $.13(2). It is true that there was no evidence to negative an acquittal, pardon or prior punishment, as referred to in s.13(4), but it is inconceivable, in these hotly disputed proceedings in which the first respondents have throughout been legally represented that any of such facts exist. Had the matter been raised, evidence could readily have been adduced to the magistrate in relation to these matters. Even if we are wrong in our view as to onus of proof, under those circumstances it would be an erroneous exercise of its discretion, under s.16 of the Administrative Decisions (Judicial Review) Act, for this Court to set aside the orders made by the magistrate because of the lack of evidence to negative the matters referred to in s.13(4). sate, aa ate testable edethoee = | 12. a fugitive apparently made for the purpose of prosecuting the . fugitive on account of his race, religion, nationality or political opinions or in relation to which he may be prejudiced at his trial because of such matters. That section is not relevant to the present matters. Section 15 provides that, upon receipt of a requisition from a foreign state for the surrender of a fugitive, the Attorney-General may, in his discretion, by notice in writing inform a magistrate that the requisition has been made. Section 16 provides for the issue of warrants for the apprehension of fugitives. Section 17 deals with subsequent proceedings. Relevantly, it provides: "17(1) A person who is apprehended under a warrant issued in pursuance of the last preceding section shall, unless he is sooner released, be brought as soon as practicable before a Magistrate in the State or Territory in which he is apprehended... (3) In the application of the succeeding sub-sections in relation to a person who has been apprehended under a warrant issued in pursuance of the last preceding section, the expression 'the Magistrate' means the magistrate before whom the person is brought after he was apprehended or at the expiration of a period for which he has been remanded under this section, as the case may be.... (6) If the person was apprehended under a warrant issued in pursuance of an authority by the Attorney-General in a notice under paragraph (a) of sub-section (1) of section 15 or the Magistrate receives a notice by the Attorney-General under paragraph (b) of that sub-section and - ont aetiome 13. ° there is produced to the Magistrate a duly authenticated foreign warrant in respect of the person issued in the foreign state that made the requisition for the surrender of the person; (b) there is produced to the Magistrate - (1) in the case of a person who - is accused of an extradition crime - such evidence as would, in the opinion of the Magistrate, according to the law in force in the State or Territory 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) ... 3 and (c) the Magistrate is satisfied, after hearing any evidence tendered by the person, that the person is liable to be surrendered to the foreign state that made the requisition for the surrender, the Magistrate shall, by warrant ..., 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..." Section 18 provides for the Attorney-General, at his discretion, by warrant to order that the prisoner be delivered into the custody of a specified person for conveyance by that person to a place in the foreign state and to surrender to some person appointed by that state to receive him. 14, we eee el ES, Frm oS tee ada - - ". $action 19 provides for the discharge of a fugitive __ still in custody. in Australia.at the expiration of two months .after the date of committal to prison or determination of any habeas corpus application, whichever is the later, unless reasonable cause is shown for the delay. --Part IV of the Act deals with extradition from foreign states to Australia. Part V contains miscellaneous provisions. These include s.26 which provides, inter alia, that in a proceeding under the Act "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 admissible as evidence of the matters stated in the testimony". A document that purports to set out such testimony is duly authenticated for the purpose of being admitted in evidence in such a proceeding if it purports to be certified, by a judge, magistrate or officer in or of the relevant foreign state, to be the original document containing or recording that testimony or a true copy of that original document. The Terms of the Treaty We turn now to the terms of the Treaty on Extradition between Australia and the United States of America, which terms may - by virtue of 3.10 of the Act - limit the operation of the Act in relation to fugitives whose extradition is requisitioned by the United States of America. we eee et CED pte = : A ni eee an nee a STOO Sra ral any py he id. "article I of the Treaty provides: "Bach Contracting Party agrees, under the conditions and circumstances established by this Treaty, reciprocally to deliver up persons found in its territory who have been charged with ... any of the offences mentioned in Article II of this Treaty - committed within the territory of the other Contracting Party, ... Article II provides: "(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: ... 28. An offence against the laws relating — to narcotics, dangerous drugs or psychotropic substances. 2) Extradition shall also be granted for any other offences that are made extraditable under the extradition laws of Australia and which are felonies under the laws of the United States of America. (3) Extradition shall also be granted for any offence against a federal law of the United States of America of which one of the above-mentioned offences is a substantial element, even if transporting or transportation or the use of the mails or of interstate facilities is also an element of the specific offence. (4) _ Extradition shall also be granted for aiding, abetting, counselling or procuring the commission of, being an accessory before or after the fact to, or attempting or conspiring to commit, any of the offences mentioned in the preceding paragraphs of this Article. 16. ~(S) Ig extradition is requested 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 be 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 VI provides: "Extradition shall be granted only if the evidence is found sufficient, according to the laws in the territory where the person whose extradition is requested is found, ... 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 ...". Article XIV provides: "(1) A person extradited under this Treaty may be detained, tried or punished in the territory of the requesting State for any offence mentioned in Article II for which the person could be convicted upon proof of the facts upon which the request for extradition was based. (2) Except as provided in paragraph (1) of this Article, a person extradited under this Treaty shall not be detained, tried or punished in the territory of the requesting State for an offence other than that for which extradition has been granted, or be extradited by that State to a third State, unless - (a) he has left the territory of the requesting State after his ' ' et t 4 hablo ton State ° omen Thad ee al te 7 y 17. Ue, dpe "2.7 extradition and has voluntarily returned to it; (b) he has not left the territory of the requesting State within thirty days after being free to do 30; or (c) the offence concerned is one for which the requested State has consented to his detention, trial or punishment or to his extradition to a third State and is an offence "- mentioned in Article II. (3) wee (4) This Article does not apply to offences committed after the extradition". The Need to Show Double Criminality A fundamental question is whether any, and if so which, of the offences alleged against Messrs Riley and Butler was an offence in relation to which extradition could be ordered. In order to constitute such an offence it is necessary, first, that the offence fall within the definition of "extradition crime" in 3.4(1A) of the Act. Only a "fugitive", within the meaning of the Act, is liable to be extradited (see s.12) and that word is defined to mean a person accused of an extradition crime. This means, inter alia, that the offence must be one described in Schedule 1 of the Act or which would be so described if the description contained a reference to intent, state of mind or circumstance of aggravation. Secondly, the offence must be one to which the Treaty of Extradition between Australia and the United States of America applies. If there is no reference to, 4 or description of, a particular offence in the Treaty - 18. effectively Article II of the Treaty - then, although that .-. , offence may be an "extradition crime" within the meaning of the -Act and whatever may be the position in respect of other countries, the offence is not one in relation to which a person may be extradited to the United States. The matter in respect of which extradition is sought must be identified sufficiently for it to appear that it falls both within the definition of "extradition crime" in the Act and within Article II of the Treaty. If that requirement is satisifed, any terminological difference does not matter: see Article II(5). The Nature of the Importation and Possession Offences The offences charged against Messrs Riley and Butler in the Superceding Indictment, and in relation to which extradition was sought by the United States Government, divide into five separate categories. They may be discussed, in relation to the question whether each is capable of constituting an extradition crime, by reference to those categories. Category one consists of counts 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23 and 25. Each of these counts alleges that the accused persons "did knowingly, intentionally and unlawfully cause to be imported into the United States" a specified quantity of marijuana or of hashish. The second category consists of counts 4, 6, °8, 10, 12, 14, 16, 18, 20, 22, 24 and 26. Each of these counts alleges that the accused persons "did knowingly, intentionally and unlawfully ~er ona € 1g. possess with intent to distribute" a specified quantity of marijuana or of hashish. Not all of the counts in these two categories were laid against both. Mr Riley and Mr Butler. Counts 3, 4, 5, 6, 7, 8, 25 and 26 were laid against Mr Riley and others but not against Mr Butler. - Counts 15, 16, 17, and 18 were laid against Mr Butler and others but not against Mr Riley. In relation to the remainder both Mr Riley and Mr Butler are amongst the accused persons. Section 952(a) of the United States Code makes it unlawful to import, into the United States, inter alia, any controlled substance in schedule 1. Both marijuana and hashish are controlled substances in schedule 1 to the Code. Section 960 of the Code makes it an offence knowingly and intentionally, and contrary to 3.952, to import a controlled substance. According to the affidavit of Ms CM Currie, an Assistant United States Attorney for the district of South Carolina, which was before the respondent magistrate, the essential elements of the offences within category 1 are: "(1) That marijuana and/or hashish was imported, ie came from outside of the Customs territory of the United States into the United States; and . (2) That the defendant or defendants had knowledge of and wilfully participated to some extent in the importation of such marijuana and/or hashish as alleged". BAe telenedadeernneae aie a. 4 nie 20. oes od Section 841(a)(1) of the United States Code makes it ''unlawful for any person knowingly or intentionally to distribute, 'or possess with intent to distribute, a controlled substance. Section 841(b)(6) prescribes penalties in relation to a violation of sub-section (a). According to Ms Currie's affidavit the essential elements of this offence are: "1. That the defendant or defendants possessed (by actual or constructive possession) marijuana and/or hashish; and 2. That the defendant or defendants knowingly and intentionally possessed this marijuana and/or hashish with a specific intent to distribute it". Importation and Possession: The Act The first question which arises, with respect to each of the first and second categories of offences, is whether those offences constitute an "extradition crime" within the meaning of s.4(1A) of the Extradition (Foreign States) Act. The answer to this question depends upon Australian law and, in particular, upon whether each of the two categories of offences is within item 34 in Schedule 1, that is "an offence against the law relating to dangerous drugs, narcotics or psychotropic substances". Section 233B(1) of the Customs Act 1901 makes -it an offence for any person to import into Australia any prohibited imports that are "narcotic goods". By s.4(1) of that Act if if ae eee atin Sv I bo al. "narcotic goods" are defined as meaning "goods that consist of a _ narcotic substance." In the same sub-section "narcotic " substance" is defined to include "a substance or thing the name of which is specified in column 1 of Schedule VI". Schedule VI refers to cannabis, cannabis resin and tetrahydrocannabinols. On the evidence marijuana is cannabis, hashish is cannabis resin, and tetrahydrocannabinols is the active ingredient of cannabis. It follows that the importation into Australia of marijuana or hashish would be an offence under s.233B of the Customs Act, such offence being punishable by a term of imprisonment exceeding one year: see 3.235 of the Customs Act. There was some debate before us as to whether marijuana and hashish were, in scientific parlance, properly to be described as narcotics. Reference was made to a number of medical dictionaries and other references. The balance of those authorities appears to favour the view that marijuana and hashish are not, technically, narcotics. However, this conclusion does not appear to be material to the consideration of whether the importation of marijuana or hashish into Australia falls within item 34 of Schedule I. That item refers to "the law relating to +... narcotics" so that the relevant question ig not what is a "narcotic" according to scientific classification but rather what - is treated as a narcotic by the law; whether consistently or otherwise with the weight of scientific opinion. Section 233B of the Customs Act is a "law relating to ... narcotics". An offence against that law, whether or not in relation to a substance which 22. > man 'relating to"... narcotics". There is, in relation to the possession counts, no element of importation, such as is required in relation to the various offences involving possession in 3.233B of the Customs Act. The matters constituting the offences charged in the second category would not, in themselves, constitute offences under 8.233B. Mr Mackenzie, SM held that, had the offences in the second category occurred in New South Wales, there would have been an offence against s.21(1)(a) of the Poisons Act (NSW) 1966. That paragraph makes it an offence, inter alia, to supply "Indian hemp". The word "supply" is defined by s.4 of that Act so as to include "keeping or having in possession for supply". The term "Indian hemp" is defined to include any plant or part of a plant of the genus Cannabis and any resin or other extract obtained from any plant or part of a plant of the genus Cannabis; thus plainly including both marijuana and hashish. Counsel for Messrs Riley and Butler accept that the offences falling within the second category, if they took place in New South Wales, would constitute offences against s.21(1)(a) of the Poisons Act. They contend, however, that the Poisons Act, unlike the Customs Act, does not attach the label of "narcotic" on to any particular substances and that there is no evidence to 0 tb ate na Bade wet gl tare 23. see "AlHanT Sa qe re 2 eo Se ot nee indicate thst, in, fact, the substance described in the Poisons . Act as "Indian hemp" is, or is generally understood to be, a 'narcotic. They say, in short, that whilst the Poisons Act may be described as being, inter alia, a law relating to Indian hemp it is not a law relating to narcotics. "-Fox J took the view that, in considering whether s.21(1) (a) of the Poisons Act fell within item 34 of the Schedule, the magistrate was entitled to have regard to any relevant medical dictionary definition, to the Customs Act definition and to the terms of the Narcotic Drugs Act 1967 and the international Convention on Narcotic Drugs 1961, which is the first Schedule to that latter Act. With respect, we find difficulty about each of these references. It is, no doubt, in principle correct to refer to any relevant, authoritative medical dictionary but, as we have said, the weight of medical authority is that marijuana and hashish are not, in the technical sense, narcotic substances. The definitions in the Customs Act and the Narcotic Drugs Act are definitions for the purposes of each of those respective Acts. The definitions have no general significance: see Yager v The Queen (1977) 139 CLR 28 at p 43. The legislative decision to control marijuana and hashish, in certain respects, by the same law as was enacted to govern narcotic substances, strictly go called, cannot affect the question whether other legislation, in relation to which a similar approach has not been taken, is to be regarded as a law _ on Narcotic Drugs-1961. As Mason J said in Yager, at pp 43-44: i. ' legislature has made provision for the control of a particular 24. q! relating Tebumcattes. Similarly, in relation to the Convention al. "There is no basis on which the provisions of x an international convention can control or : influence the meaning of words or expressions used in a statute, unless it appears that the statute was intended to give effect to the convention, in which event it is legitimate -- to resort to the convention to resolve an ambiguity in the statute". The Poisons Act, of course, was not such a statute. In our opinion it was not open to the learned magistrate to take the view that the Poisons Act was a "law relating to ... narcotics", within the meaning of item 34 of Schedule le However, it appears that there is a different basis upon which the magistrate's conclusion may be supported. Item 34 also refers to "the law relating to dangerous drugs". The medical and other material to which we were referred in argument make plain that, whether or not marijuana and hashish are narcotics, thev are properly to be regarded as potentially dangerous. No doubt, the same can be said about many drugs, some of which may not be the subject of legislative control. However, item 34 addresses itself to such dangerous drugs as have been singled out for control by law in the relevant part of Australia. The test is not whether, in the opinion of some individual (even an expert), one drug is more dangerous than another but rather whether the 25. drug ore: Ehige-ground that it is dangerous. If the answer to this question is in the affirmative then the resultant legislation is " properly to be described as a "law relating to dangerous drugs". Section 8 of the Poisons Act provides for the preparation and maintenance of a Poisons List containing eight schedules. Schedule 8 relates to drugs of addiction and is to contain the 'names of substances which are addiction producing or potentially addiction producing. The term "drug of addiction" is defined by 3.4 30 as to include "Indian hemp", as defined. Part IV of the Act imposes restrictions on the possession, manufacture and supply, inter alia, of drugs of addiction. Section 21(1), which is in Part IV, operates to impose a prohibition upon the manufacture, supply or possession of Indian hemp, subject only to the limited exemptions available under s.21(1B). The New South Wales Parliament has taken the view that marijuana and hashish are drugs properly to be regarded as drugs of addiction which ought to be subject to stringent controls. Leaislation to that end must be regarded as a "law relating to danaerous drugs". The offence created by a s.21(1) is punishable by a term of imprisonment exceeding one year: see s.26(1) of the Poisons Act. The respondents put an additional argument, in relation to the "possession" offences, which depends upon the reference in 8.4(1A) to an "act" or "omission" constituting the offence. They argue that to have a commodity in possession is neither an act nor an omission but a state. They refer to Beckwith v The Queen Rapvapree rues Ven ear aw Saneeay 26. oof EER AST oe (1976) 195: CER: 569° at p 575 wherein Gibbs J referred to a __ statement by Mahon J in Ridge v Grant (1975) 2 NZLR 165 at p 169 .that "to be in possession or to have an article in possession is neither an act or omission". Gibbs J did not express any view about the accuracy of this, considered as a general observation, but, in any event, the general question is not relevant to the present-tase. The offence created by s.841(a)(1) of the United States Code is knowingly or intentionally to possess with intent to distribute. The respondents are so charged. Proof that the defendants knowingly and intentionally possessed a substance necessarily involves proof that they actively maintained possession. It would not suffice merely to show that the substance was in their custody. The relevant concept is one of an act, rather than a mere state of possession. The offences falling within categories 1 and 2 are each offences which are "extradition crimes" within the meaning of s.4(1A) of the Extradition (Foreian States) Act. Importation and Possession: The Treaty The next question is whether those offences fall within the list of offences made extraditable under the Treaty with the United States. That question involves an examination of the relevant American law. We have reached the conclusion that these offences are within the Treaty for each of two reasons, either of which would be sufficient. a a oe tic. edt oe auticies etek go 27. « ore 'Sections 952 and 841, which respectively make unlawful ., the importation into the United States, and the possession with 'intent to distribute, of a controlled substance, are each within Title 21 to the United States Code. That Titie commences with 3.801 which contains certain Congressional findings and declarations including: "(2) The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people. ... Section 812 provides for the establishment of five schedules of controlled substances. Schedule i(c) includes "any material, compound, mixture or preparation, which contains any quantity of the following hallucinogenic substances. ... (10) marihuana (17) tetrahydrocannabinols" The term "marihuana" is defined by s.802(15) as meaning "all parts of the plant Cannabis sativa L, whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture or preparation of such plant, its seeds or resin". Clearly it includes hashish. Section 812 provides for additional drugs to be added to the schedules and nominates the findings required for the various schedules. In the case of Schedule 1 the findings are: 28. "(A) The drug or other substance has a high potential for abuse. (B) The drug or other substance has no currently accepted medical use in treatment in the United States. (C) There its a lack of accepted safety for use of the drug or other substance under medical supervision." The'term "controlled substance" is defined by s.802(6) of the Code to mean a drug or other substance included, inter alia, in Schedule 1. Some controlled substances are treated by the Code as narcotics: see the definition in s.802 of "narcotic drug" and "opiate". Neither marijuana nor hashish is so treated. But all "controlled substances" are regarded as dangerous drugs. The finding in s.801(2) clearly indicates a legislative view that controlled substances, which include marijuana and hashish, have a substantial, detrimental effect on health. They may, in short. properly be called "dangerous drugs". All controlled substances are subjected to the stringent controls which might be expected in relation to drugs 30 regarded. Title 21 of the Code is clearly a law relating to narcotics and dangerous drugs - and probably also psychotropic substances. An offence against Title 21, in relation to a "controlled substance", falls within item 28. Offences against each of ss.952 and 841 are punishable by a term of imprisonment exceeding one year. The requirements of Article II(1) of the Treaty are made out. w+ Q 29. Secondly, Article II(2) provides for the grant of " extradition "for any other offences that are made extraditable under the extradition laws of Australia and which are felonies under the laws of the United States of America". If, as we have held, the relevant offences are each "extradition crimes" within the meaning of s.4(1A) of the Extradition (Foreign States) Act then they are offences made extraditable under the extradition laws of Australia. The evidence of Ms Currie is that they are also felonies under the laws of the United States of America. Subject to one matter, Article II(2) is satisfied. Counsel for Mr Butler submitted that Article II(2) is inapplicable because it does not include offences which, at the date of the Treaty, were already extraditable under Australian law but that it included only such offences as might thereafter be made extraditable. If the subject offences are extradition crimes, they were extradition crimes at the date of the Treaty: there has been no amendment of the definition of "extradition crime", or of the Schedule to the Act, since the date of the Treaty. Two submissions are put in support of this argument. In the first, counsel emphasise the words "are made" in Article II(2), arguing that these words indicate that the clause is to operate only in futuro. We do not think that there is any such implication in these words. The draftsman merely had in mind the we alas Ae be mei & cane mane etietbabar Her —ntthin pein 30. necessity for the offences to have been the subject of legislation giving to them the status of being extraditable offences. A short way of saying this is to say that the offences must be "made extraditable". The words "are made" are appropriate to legislation making the offences extraditable at any time - before or after the date of the Treaty. The' second argument put by counsel is that any different interpretation would mean that offences which appeared on the list in Schedule 1 of the Australian Act, but which had not been included in Article II(1) of the Treaty, might find their way back on to the extradition list by Article II(2), contrary to the intention of the Treaty makers. We think that this argument assumes too much about the course of negotiations. It may weil be that the final form of the list included in Article II(1) was related to other treaties of the United States and was not merely the result of whittling down the Australian list to find a list acceptable to the United States. There is no reason to read Article II(2) otherwise than in its natural sense. The relevant offences are made extraditable under the extradition laws of Australia. They are also felonies under the laws of the United States of America. They fall within Article II(2). In principle, the offences in the first two categories are offences in relation to which the extradition of Mr Riley and Mr Butler may be ordered. We defer, for the moment, the questions, raised by the cross~appeals, as to whether there was shed mbt ow toe te gut Ate 31. evidence to support the extradition order in relation to these "4 various counts. Conspiracy Offences: Principles The third and fourth categories of offences may also be discussed together. The first count in the indictment alleges a conspiracy between Mr Riley, Mr Butler and 21 other persons knowingly, intentionally and unlawfully to import into the United States Schedule 1 non-narcotic controlled substances namely marijuana and hashish in violation of ss.952 and 960 of the United States Code. Count 2 charges a conspiracy between the same people knowingly, intentionally and unlawfully to possess with intent to distribute, and to distribute, Schedule I non-narcotic controlled substances, namely marijuana and hashish, in violation of s.841 of the Code. If the view expressed above in relation to the counts of importation and possession is correct, it is not open to doubt that charges of conspiracy to import, and of conspiracy to possess and to distribute, are each charges that fall within the definition of "extradition crime" s.4(1A) of the Extradition (Foreign States) Act. Item 35 of Schedule 1 of the Act includes reference to conspiring to commit an offence described in a preceding item in the Schedule. This must, of course, include an 32. _acts had taken place in New South Wales. Conspiracies to import, and to possess, are felonies under United States law and, being included in Schedule 1 of the Act, offences made extraditable under Australian law. It follows that the charges fall within Article I1(2) of the Schedule to the Treaty. Additionally, they fall within Article II(4) of the Treaty Schedule which provides that extradition shall also be granted, inter alia, for conspiring te commit any of the offences mentioned in the preceding paragraphs of the Article; which includes item 28 in the list in paragraph (1). The substantial attack which was made upon the two counts was that each was multifarious. Reference was made to Rv Partridge (1930) 30 SR(NSW) 410 at p 413, to The Queen v Hoar (1981) 148 CLR 32 at p 38 and to Gerakiteys v The Queen (1983) 58 ALUR 182; 51 ALR 417. Counsel point out that none of the 52 overt acts alleged in the indictment consists of an agreement. They refer to, and adopt, the comment by Fox J, at first instance, that what it is intended to do is "to comprehend a series of conspiracies, between different people, at different times, for different purposes". Counsel for the Commonwealth accept that it was not open to the magistrate to extradite on conspiracy counts which would, 33. under: €hastocal: law, be bad. In such a situation there would not ce Be be an offence falling within item 35 of Schedule I of the . Extradition (Foreign States) Act and therefore, no "extradition crime" within the meaning of 3.4(1A). However, they claim, that it was open to the magistrate to find on the evidence a single conspiracy in relation to importing and a single conspiracy in relation to possession, the participants varying from time to time. They contend that the evidence indicates that certain of the alleged conspirators, including Mr Riley, were engaged in a long-term criminal partnership to which Mr Butler attached himself, at least from time to time. They refer to the decision of the English Court of Criminal Appeal in R_v Griffiths €1966] 1 QB 589 at p 597. ",+. all must join in the one agreement, each with the others, in order to constitute one conspiracy. They may join in at various times, each attaching himself to that agreement; any one of them may not know all the other parties, but only that there are other parties; any one of them may not know the full extent of the scheme to which he attaches himself. But what each must know is that there is coming into existence, or is in existence, a scheme which goes beyond the illegal act or acts which he agrees to do". In the end, then, the critical question, in relation to the conspiracy charges, is not one of principle but rather whether there was evidence placed before the magistrate sufficient to show a prima facie case of each of the two conspiracies alleged. We will return to this question, referring to that evidence. . 34. The Offenee'.of Continuing Criminal Enterprise Finally in relation to the question of availability of extradition, we turn to the fifth category of offence; the sole example of which is count 38, pleaded against both the respondents, and two others, for an offence arising under 3.848 of the Unitéd States Code and known as continuing criminal enterprise. Section 848 provides: "J. a person is engaged in a continuing criminal enterprise if - (1) he violates any provision of this sub-chapter or sub-chapter II of this chapter the punishment for which is @ felony, and (2) guch violatiori"*ts a part of a continuing series of violations of this sub-chapter or sub-chapter II of this chapter - (A) which are undertaken by such person un concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and (B) from which such person obtains. substantial income or resources." The affidavit of Ms Currie establishes that the essential elements of the offence are: (a) the commission of substantive offences of importation or. possession of a controlled substance or conspiracy ta-import or possess such a substance; DeLee nt Ug Me? = towed web ae, sa - ana? eae the ae Agia tek Spe wometete spake ed ESS ot: 35. aU wu y< that such offences are part of a ""eontinuing series of such offences; (c) that the defendant undertook to commit that series of offences in concert with five or more persons; (d) that the defendant occupied the position of organizer or supervisor or other position of management with respect to those persons in the undertaking; and (e) that the defendant obtained substantial iritome or resources from that continuing series of offences. Ms Currie deposes that the term "series" generally means "three or more", and that the term "continuing" means "enduring, subsisting for a definite period or intended to cover or apply to successive, similar occurrences." She says that it is not necessary that the five or more persons be engaged with the particular defendant in the commission of the continuing series of violations at the same moment or that all five be present at the same time or place. It is sufficient, she says, if it is proved that, during the course of the commission of the continuing series of violations, the defendant supervised a total of five or more persons. Continuing Criminal Enterprise: The Act There is no offence of continuing criminal enterprise known, either by that name or any other, to Australian law. The Commonwealth contends that this does not matter; that a necessary element of the offence is the commission of a series of offences Meeastene 36. of importing, or possessing, marijuana or hashish; that these are offences known to Australian law and, in particular, listed in .Schedule 1 to the Act. Counsel rely upon the provisions of 3.4(1A) constituting as an extradition crime an offence, constituted by two or more acts or omissions, where any of the acts or omissions, if it took place in Australia, would itself constitute an offence listed in Schedule 1. Turning to the Treaty between Australia and the United States they rely upon Article II(2), and (3). The respondents dispute the contention that the offence of continuing criminal enterprise falls within the definition of "extradition crime" in s.4(1A) firstly upon the basis, with which we have already dealt, that importation or possession of marijuana or hashish is not an offence against the law relating to dangerous drugs, narcotics or psychotropic substances and, secondly, because they say that it is not enough that only one of the elements of an extradition crime is an offence under the local Australian law. They say that the extension of the "definition in s.4(1A), to refer to only a single act or omission - which was effected by an amendment to the Act in 1973 - fails in its purpose because of the omission of any similar amendment to s.17(6) of the Act; it will never be possible for a magistrate to hold, in relation to an "extradition crime" of continuing criminal enterprise, that the evidence would, according to local law, justify the trial of a person if the acts constituting that crime had taken place locally because that crime is not an- Cbd oe whence as ch 37. - 4 offence: eed e-the--local law. Alternatively, they say that, aise ee whatever 'way-he the operation of the Act in relation to other " countries, the terms of the Treaty - and especially Article VI - show that it was intended to limit extradition between Australia and the United States to offences which are known, in their entirety, to both legal systems. Section 17(6)(b)(1) requires as a condition precedent to the issue of a warrant by a magistrate that there be produced to the magistrate "in the case of a person who is accused of an extradition crime - such evidence as would ... according to the law in force in the State or Territory 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". There are two possible responses to the argument of the respondents which is based upon s.17(6). They differ according to the view one takes upon the question whether or not the words "extradition crime" ir s.17(6)(b) (1) bear the meaning ascribed to them in 3.4(1A), namely a crime which may be constituted by a single act or omission described in Schedule 1, itself an offence, but beina part only of a more complex foreiqn offence possibly having elements not known to Australian law. The view that the words do have their defined meaning is supported not only by the fact that the Parliament has chosen to retain those words after the 1973 amendment, and despite the amendment to s.4(1A), but also by considerations of policy. The purpose of para (b){i) is to 38. = Spewtegete r= bee Sos, niger oo instructtisemagistrate to apply local law to the determination Bm tre ss ; whether there is: 'a sufficient case in respect of the element (the .-"act or omission") which would constitute the crime listed in Schedule 1 and, therefore, the "extradition crime". Such an instruction would merely require the local magistrate to apply local law to determine whether there is evidence to justify a 'trial for an offence known to local law. He would of course, make the assumption that all relevant events occurred locally rather than in the territory of the requesting state but under this sub-paragraph he would not be concerned with the question whether other elements, of which there is no local counterpart, are made out. This approach is consistent with that taken in the House of Lords, in United States v McCaffery C1948] 1 WLR 867, in respect of extradition proceedings in relation to composite offences created under federal United States law. The alternative view focusses upon the context of the reference to "extradition crime". It is a crime of which a person "is accused" and in relation to which the magistrate has to determine whether there is evidence to justify his trial. It may be thought that this context necessarily envisages a whole crime, not a single element of it. On this view the magistrate would need to be satisfied of each of the elements of the composite foreign offence, the underlying assumption being made that such composite offence is an offence against the local law. That approach requires the sub-paragraph to be read as if there were added at the end the words:"and if that crime were. an once nae ta ie ao at oa vee 39. - Ee wae eet or offence against-that State or Territory" but this is, in any , event, an underlying assumption of the sub-paragraph. Having -regard to the evidence and the fact that, in this case and because of the Treaty requirement to prove to the magistrate all of the elements of the United Stats offence, it is unnecessary for us to choose between the two constructions we have mentioned. Either Gonstruction leads to the rejection of the submission made on behalf of 'the respondents. Upon the respondents' approach the amendment to widen s.4(1A) to accommodate the case of a foreign crime having only 4 single common element with a local Schedule 1 crime has been futile; the failure to satisfy s.17(6)(b)(i) would always prevent extradition in respect of a foreign crime having only a gingle element in common with a local crime. Moreover, the result would be strange, in policy terms. In enacting s.17(6)(b)(1}) the Parliament was presumably concerned that nobody would be put at risk of extradition from Australia to a foreign state except upon evidence sufficient to satisfy a local magistrate that there existed a case against him which would justify his trial, according to local standards of application of the local law, in relation to at least one whole offence - described in Schedule 1 - selected by the Parliament as being sufficiently serious to warrant extradition. The obvious purpose was to protect people from unjustifiable extradition. There appears to be no rationality in an interpretation which would deny te a requesting State, which can make out that evidentiary burden.in relation to ne hn deemin nttee 40. an Srv REE? gh — a partiaitae fugitive, the capacity to try the fugitive for a more complex: offence simply because that offence is unknown to "Australian law. The Act was designed to govern extradition to a multiplicity of countries, many of which might be expected to have legal systems and criminal offences very different from our own. There are safeguards against the trial of a fugitive upon a charge which is abhorrent to Australian notions. The Attorney-General will know of, and be free to take into account, the nature of all offences referred to in the requisition in deciding whether to exercise his discretion under 3.18 in favour of extradition. And, of course, the Act contains safeguards against the addition of new, and perhaps more serious, charges after extradition is complete. Section 13(2) does not speak of an extradition crime but it excludes liability to surrender unless provision is made by a law of the requesting State, or by a treaty or by an undertaking, that the fugitive will not be detained or tried in the requesting State, without the consent of the Australian Attorney-General, for any offence committed before his surrender other than "the offence to which the requisition for his surrender relates" or any other offence based upon the facts on which that requisition was founded. Continuing Criminal Enterprise: The Treaty The question next arises whether the Treaty enables the extradition of a fugitive to the United States to face a charge of continuing criminal enterprise; the Treaty provisions may he d ana! Oo 4 s . oe nate Coe Ce Sebi tet Le anata libitaMM Fe 41. narrower than the Act. Article II(1) refers to an "offence _ against the laws relating to narcotics, dangerous drugs or psychotropic substances". Under the United States Code continuing criminal enterprise is such an offence. However, the opening words of the paragraph require that the relevant offence also be an offence under Australian law, which continuing criminal enterprise is not. Nor, we think, does continuing criminal enterprise fall under para (2) of Article II. That paragraph applies to "offences" - not "extradition crimes" in the sense of s.4(1A) of the Act - made extraditable under Australian law. It refers to whole offences, known to Australian law, and thus does not include continuing criminal enterprise. However, the offence does fall within Article II(3). That clause empowers extradition "for any offence against a federal law of the United States of America of which one of the abovementioned offences is a substantial element, even if transportina or transportation or the use of the mails or of interstate facilities is also an element of the specific offence." The term "abovementioned offences" refers to paras (1) and (2) of Article II. Paragraph (1) includes an offence against the laws relating to narcotics, dangerous drugs or psychotropic substances. The importation, or possession, of marijuana or hashish is such an offence. Continuing criminal enterprise is, therefore, an offence against a federal law of the United States 42. Fox J, at first instance, held that Article II(3) did not authorise the extradition of the respondents on the charge of continuing criminal enterprise. He accepted that continuing criminal enterprise was an offence against a federal law of the United States of America and assumed that one of the offences in paras (1) or (2) was a substantial element of that offence. However, he rejected the availability of the clause because of the provisions of Article VI which, he -held, required the proof before the local court, not merely of the "substantial element" referred to in para (3), but of all the inaredients in the United States offence and that it was a fatal obstacle to such proof that the offence of continuing criminal enterprise was unknown in New South Wales or has no equivalent there. He also referred to Article XI(3), a procedural provision using lanauage similar to that to be found in Article VI. We agree that Article VI requires the local court to have proof of all elements of the United States offence. Article VI deals with the sufficiency of evidence in relation to an "offence". This means a whole offence. It is to be contrasted with the device adopted in s.4(1A) of the Act making a part offence an "extradition crime" if a particular act or omission - itself constituting a crime listed in Schedule 1 - is proved. However, we do not think that it follows that, if the relevant oe heatt a due oe dea 43. + tt tt 7 - offence haia:.no equivalent in New South Wales, extradition may not be granted.- This is not because of the consequence that, in _ relation to the United States, the operation of the definition of "extradition crime" in s.4(1A) of the Act would be restricted, so as to eliminate the reference to any one act or omission, in the case of crimes involving two or more acts or omissions; g.10¢1l){a) of the Act expressly envisages that the operation of the Act may' be narrowed because of the terms of regulations giving effect to a particular treaty. Rather, our reason arises out of the terms of the Treaty itself. Article II(3) contemplates the case of an offence against, the federal law of the United States in relation to which one of the complete offences listed in Article II(1), or referred to in Article II(2) ig merely a "substantial element". The "whole" offences listed in Article II(1) or referred to in Article II(2) would appear to embrace all of the offences which are included in Schedule 1 of the Act. They were so included when the Treaty was negotiated. Upon the approach of Fox J, therefore, there would be little prospect of the application in practice of para (3). Even more significantly, para (3) does itself recognise that a complete offence against Australian law may, in a qiven case, be merely a substantial element of the United States offence. It contemplates that the added ingredient may he transporting or transportation or the use of the mails or of interstate facilities, that is, transporting in the United States or the use of United States mails or United States interstate facilities. By definition, there cannot be an Australian offence which 44. se elenents. Moreover, there are not, and there were not iri 1976-dn:contemplation, Australian offences which included " those elements. The use of those elements in order to expand the 'reach of the federal criminal law is both long-standing and widespread in the United States. It has no counterpart elsewhere. To read the reference in Article VI to 'its equivalent' as requiring that, in order to found an extradition for a United: States federal offence involving the mail or interstate facilities, there must be an Australian offence including those elements would be to subject the operation of the concluding phrase in Article II(3) to the unlikely event that Australian law copied the United States technique. Had it been intended that, contrary to the apparent width of Article II(2) and (3), extradition would only be available in respect of United States offences which had exact counterparts in Australia we would have expected to find an unambiguous provision to that effect. Article VI does not relate to the availability of an offence to found an order for extradition; it deals with sufficiency of evidence. The specified standard of sufficiency is that which would apply, under the local law, to the consideration of an allegation of the kind involved in the same or equivalent offence against the local law. In considering whether the requisite standard of sufficiency is reached, the magistrate, and the Attorney-General, examine the facts alleged against the fugitive, which will necessarily relate to an alleged woke veneer ® i ove) AG fegtige Aire ue' = * ae at teey og Cre Creve nee erway 4s. ee oe offence: ist the: requesting state, and the nature of the alleged . offence. Whatever be the general position under s.17(6)(b)(1) of 'the Act, Article VI ensures that, in relation to extradition to the United States, the magistrate examines the evidence in respect of "the offence with which he is charged", that is the whole offence. Thus in the case of an alleged continuing criminal enterprise, Article VI requires the magistrate to consider whether there is evidence before him, to the required standard, of the various elements in the United States offence. The standard of sufficiency is that which he would apply if dealing with a local offence of a similar kind. Subject only to any special provisions such as $s.26 of the Act, permitting use of certified transcript etc, the rules of evidence applicable toa criminal offence will apply. We think that this is all that is meant by Article VI. We see no difficulty, in point of principle, in the extradition of a fugitive from Australia to the United States on a charge of continuing criminal enterprise, notwithstanding that there is no equivalent to that offence in Australian law. The view we have reached is similar to that adopted in Canada. The Treaty of Extradition between Canada and the United States of America contains a clause in terms substantially similar to Article I1(3). In Re Sudar and the United States of America (1981) 66CCC (2a) 412 Smith J of the Ontario High Court held that it applied to authorise the extradition of a fugitive charged with racketeering and consptracy to racketeer, they being heat ate ae eer tee ee wear tills eaten perma ee od 46. federal offences in the United States but being not known to __ Canadian law. In order to prove such offences it was necessary "to establish an enterprise and pattern of racketeering, involving activities such as. murder, threats of murder, arson and extortion which enterprise and pattern affected interstate and foreign commerce. The decision of Smith J was confirmed by a decision in relation to the same fugitive in the Federai Court of Appeal, reported 39 NR 433. In that Court the applicant argued that it was an ingredient of the offence of racketeering, in the United States, that the alleged offence have an effect on the interstate or the foreign commerce of the United States and that there could be no extradition unless this element was proved to the Canadian Court. This contention was rejected by Heald J, speaking for the Court at p 445: "What is required .... is that the fugitive employ conduct constituting a listed offence to accomplish the infraction of the federal law. In this case, it seems clear to me that the fugitive is alleged to have committed at least three of the listed offences, namely, murder, arson and extortion to accomplish the alleged infraction of the federal law, that is, conspiracy to racketeer. Put another way, if the offences of murder, arson and extortion are 'substantial elements': of the federal offence of conspiracy to racketeer, then the provisions of section (3) of Article 2 of the Treaty have been met." ie (Payal _—iaadllallll Le 1. whee Meine. " 47, The application of Article vr resolves one other issue debated before us: whether the evidence upon which the magistrate may act is confined to evidence admissible in criminal proceedings in Australia. This question must be answered affirmatively but subject to the understanding that the test is one of substance, not of form. In the King v Zossenheim (1903) 20 TLR 121 at p 122, in relation to s.14 of the United Kingdom Extradition Act, 1870 which provided that original depositions "may, if duly authenticated, be received in evidence in proceedings under the Act", the judgement of Lord Alverstone CJ was reported as being: "Poreign depositions ought to be most strictly scrutinized. The magistrate ought to see what the substance of them was, as establishing the facts of the case, but to say that if the statements in the depositions did establish the facts, the maqistrate should then inquire whether certain formalities according to Enqlish law had been taken was, in his Lordship's opinion contrary to s.l4..." The test of "substance" has been more recently applied in Enqland so as to justify the rejection of hearsay material regarding the content of documents alleged to have been falsified (Regina v Governor of Pentonville Prison, ex parte Kirby £19797 1 WLR 541) but to permit the acceptance of evidence given by a o_o 48. memory "ficwr hates: (Regina v Governor of Gloucester Prison, ex ~ parte Miller £19793 1 WLR 532. In the present case, there are numerous hearsay statements in the affidavits tendered to the magistrate in support_of the applications. Hearsay material is evidence of a different quality to evidence based upon the deponent's own observations. It lacks verification by a person with actual knowledge. It is susceptible to error from a cause - mistake in transmission from source to witness - which has no counterpart in the case of direct testimony. The issue of admissibility of such material is one of substance rather than of form. Accordingly, and although there is American authority for the admission in extradition proceedings even of hearsay material (see Wigmore on Evidence (3rd Ed) Vol 1 pp 25-31, Schwartz. Administrative Law (1976) pp 334-335, American Jurisprudence (2nd Ed) p 64), the better course is to conclude that the magistrate was correct in excluding hearsay material. We will follow that course ourselves in considering whether it was open to the magistrate to hold that there was evidence sufficient to justify the trial of one or both of the first respondents in relation to any particular offence. Counsel submitted that there were two other categories of material which should also be disregarded: evidence of conversations which is not in the form of direct speech and statements of conclusions of witnesses. | We disagree. Section ia ae so Sit Bat ae mde dialed .a , -duly authenticated, that purports to set out testimony given on 49. 2. = 26(1)(alrof the Extradition (Foreign States) Act deals with the - form of evidence in a proceeding under the Act viz. "a document, me tere atthe oath, or declared or affirmed to be true, by a person ina foreign state is admissible as evidence of the matter stated in the testimony". That provision is wide enough to authorise the proof of-the substance of a conversation by a narrative using indirect speech. There is nothing in the Treaty to limit the application of that provision in proceedings to which the Treaty et en es te applies; Article XI(3) merely requires the transmission of "such evidence, as according to the laws of the requested state, would justify his trial or committal for trial .. . " The provision deals only with the sufficiency, not the form, of evidence. The rule that evidence of conversations shall be given in direct speech is, in Australia, a rule of practice rather than of law; a practice that is probably now disregarded as often as it is followed. To apply to affidavits prepared in another country the rules of mere practice of our own courts would be substantially to diminish the utility of the Act; cf Dowse v Governor of Pentonville Prison ex parte Passingham £19831 2 AC 464. There is authority in relation to evidence, tendered in extradition proceedings, in which a conclusion-is expressed, the evidence not specifically indicating that the conclusion was derived from the personal observations of the witness. In Ex parte Bennett; Re Cunningham (1967) 68 SR (NSW) 15 the Court of Appeal was urged to grant habeas corpus to a prisoner arrested in D ¢ ' tet & 50. OT eee race wn Ss ae oats ane extradivéag:Broceedings. One of the grounds argued was that a "a, deponent- Bait given evidence in the form of a narrative stating in mda " _summary form what had occurred referring, for example, to "plastic bags of heroin" without disclosing how the deponent knew the materal to be heroin. The Court noted the relationship between the persons involved and overruled the objection; the ame hae act) dm Re SMe! view apparently being that in a cage in which a person states conclusions'in the course of a narration of evidence, he being likely to have been in a position from which it may be inferred that he has the requisite personal knowledge to justify the conclusion, the evidence should not be excluded simply because he has failed to describe his actual observations. A similar view was taken by a Divisional Court in England in Regina v Governor 2 ones attains eels of Pentonville Prison; ex parte Fernandez (1971) 1 WLR 459, a case in which an affidavit tendered in extradition proceedings spoke of payments being made to the fugitive "for services 3 rendered by him in the handling of aviation insurance for the Malaysia Singapore Airlines Ltd". Lord Parker CJ, with whom Melford Stevenson and Cooke JJ agreed, commented: "I said a moment ago I do not like the brevity ef this affidavit and its lack of particularity, but in his position first as an associate director and then as director, he says categorically that these sums were paid for services rendered by the applicant. The paragraph can be criticised as not : setting out the grounds for his belief, but - as I read it, he is as director speaking of ° this personal knowledge, and accordingly that paragraph does afford evidence." ad 51. Consideration of the Evidence: General Matters Two other matters, common to more than one of the counts, should be mentioned. In relation to a number of counts there is a variance between the detail of the evidence tendered to support the count and the particulars contained in the count itself.--Most often the discrepancy relates to the relevant date but sometimes to the names of persons who were present, the precise quantity of hashish or marijuana or the precise location of particular acts. In only one case, the evidence against Mr Riley in respect of the related counts 23 and 24, does any variance create any doubt as to the incident referred to. Subject only to that exception, the variances are such that, ina local trial, an amendment to the indictment would be allowed. However, it was submitted that any variance was fatal to the application to extradite upon a particular count; even a discrepancy of one day between the evidence and the date alleqed in the indictment in relation toa particular offence would require the discharae of the fugitive in respect of that count. The basis of the submission, once again, was Article VI. It was said that any variance makes it impossible for the magistrate to find the evidence sufficient to justify a trial in relation to "the offence with which he is charged". There may be more than one answer to this contention but it is enough to note that Article XI, which deals with the request for extradition, does not require the requesting state to formulate a precise charge at all. The request for extradition must be accompanied "by a case, the _including the law defining the offence, the law prescribing the 52. "the: person sought, a statement of the facts of the fext of the applicable laws of the requesting state set punishment for the offence and the law relating to the limitation of the legal proceedings" (para (2)) together with "such evidence as .. . would justify his trial... if the offence had been committed there" (para (3) ). No doubt an offence must be nominated in' general terms, but there is no requirement for a fully drafted count with particulars. The task of the magistrate is to determine whether the evidence supports the offence, as generally identified. 'If it does, a variance between the evidence and particulars which have been volunteered cannot matter. Finally, in respect of a number of importation counts - in the possession counts it does not matter - there is no direct evidence of the origin of the qoods the subject of the charae and, therefore, that such qoods were imported into the United States from outside the customs territory of the United States. That omission was said by the respondents to be fatal. The appellant, on the other hand, argued that there was circumstantial evidence sufficient to warrant the inference, at least ona prima facie basis, that the material was imported. Ultimately, the matter is one for consideration in relation to the particular evidence relating to each separate charge but it is convenient to indicate our view in relation to two frequently occurring circumstances: the use by involved persons of the word oe eee 53. Eee meee = " snuggle dere description of their activities and the fact that _ the inward transportation to which those activities were related . was by sea. The word "smuggle" is defined in Websters Dictionary as follows: "1. Specif., to import or export (goods) into or out of a country in a way that contravenes -- the laws of the country, as forbidding all trading in such commodities or as levying a customs duty on them, which is thereby evaded: to smuggle silk, tobacco, cocaine &e. 2. (by transf.) To introduce convey, pass, secretly or clandestinely; to conceal, hide away: to smuggle a letter into, out of, a prison; to smuggle a person into a meeting." The primary meaning, therefore, involves the notion of illicit import or export of goods into or out of a country. The secondary meaning does not. No doubt a child may boast of having "smuggled" a lolly into school but it is doubtful if that meaning would be intended by persons making extensive and expensive arrangements for the landing and distribution of substantial quantities of illicit drugs. It would be natural to use the word "smuggle" to describe the importation from a foreign country into Australia of a boatload of hashish; it would be unnatural to use the same word to describe the transport of that same quantity from Sydney to Wollongong. Whilst, standing alone, the use of the word 'smuggle' may not be enough to establish by admission that the goods were, to the speaker's knowledge, unlawfully imported from abroad, it does provide some evidence to support other circumstantial evidence to that effect. aoethog 54. of hashish oF died juane which was received by the accused persons, a considerable party of men was involved: as boat crew, unloaders, crew.of the trucks used to transport the goods from the landing point, radio operators, guards and the like. The payment received, even by persons in a subordinate position, in relation. to a single operation involving one night's activity was invariably some thousands of dollars. In relation to several boat loads it is proved that, after reception, the load was transported by road; often a considerable distance involving the crossing of numerous state boundaries. The only hypothesis suggested to us, as being an alternative to the inference that the drugs were imported from outside the United States, is that the men were enaaged in the transportation by sea of hashish and marijuana from one point in the United States to the relevant landing point upon the eastern sea-board. Having regard to the evidence of the ease of transportation of the goods by road across state boundaries and the cost and complexities of the boat unloading operation this suggestion may properly be described as fanciful. The obvious inference is that the goods were transported by sea because they had to be so transported; that is they came from a place outside the United States. MTL! a Tinned 55. The Importation and Possession Applying these general remarks, we turn to consider whether, in relation to individual offences, there was evidence before the magistrate sufficient to justify the relevant respondent being placed upon his trial. The magistrate so concluded ih' respect of each count. We deal firstly with the first and second category charges mentioned above - importation an@ possession. In relation to a number of those counts Fox J, after careful consideration of the evidence, upheld the magistrate's decision. We have examined the evidence relating to each charge assisted by the written submissions of counsel, developed during addresses extending over three days. We see no need to discuss the details of that evidence in relation to those counts in respect of which we agree with the concurrent findings of the magistrate and of Fox J. It is enough to say that, in our view, it was open to the magistrate to take the view that sufficient evidence had been adduced to justify the trial of Mr Riley in respect of counts 3, 4, 7, 8, 9, 10, 11, 12, 19, 20, 25 and 26 and Mr Butler in respect of counts 11, 12, 13, 14, 15, 17, 19, 20, and 23. Counts 5 and 6, against Mr Riley, and 21 and 22, against Mr Butler, were not pursued before Fox J. His Honour rejected, as against Mr Butler, counts 9 and 10 and no appeal is brought hes ee deeds ded votes rere es th oe 56. against that decision. This leaves importation and possession counts, for discussion by us as follows: a) b) c) a) e) Counts 13 and 14 - importation and possession respectively - held by Fox J made out against Mr Butler but not against Mr Riley. Count 16 - possession - brought against Mr Butler only, rejected: by Fox J. Count 18 ~- possession - brought against Mr Butler only rejected by Fox J. Count 23 - importation - held by Fox J to be established against Mr Butler but not against Mr Riley. : Count 24 - possession - held by Fox J to be not established against either first respondent. We will discuss these various counts in that order. Counts 13 and 14 relate to "a large quantity of marijuana" said to have been imported (count 13) and possessed (count 14) in or about July 1979 at the Oyster Factory, Hilton Head Island, South Carolina. The evidence of Mr GH Strickland, the radio operator involved in a number of the incidents the subject of charges, was that he met Mr Riley at his home and that Mr Riley toid him that he wanted him "to work the radios for a friend of his named William Frank who was also in the smuggling business". He agreed to work for William Frank. His affidavit goes on to describe his participation, as radio operator, in the 4 Fas Re T en See . Ree se teed tae LF ehihae de the he oa edeer 21 ehandatbali! yovia 57. The affidavit clearly implicates Mr Butler . but it makes' no further reference to Mr Riley. Fox J was not | satisfied that "Butler was acting as agent for Riley in relation to this particular operation" but, with respect, this seems to us to pose the wrong question. The evidence of Mr Strickland shows that Mr Riley recruited him to do the particular job, using Riley's radio equipment. Mr Riley is not shown to have been a principal in respect of this load but he is shown to have been an accessory before the fact. In our view the order made by the magistrate in respect of these two counts should be sustained. Counts 16 and 18 raise similar questions and may be considered together. Fox J accepted the sufficiency of the case in respect of importation (counts 15 and 17 respectively) but was not satisifed that there was sufficient evidence of control to sustain the charges of possession. We think that there is. In each case the unloading operation took place at the Ovster Factory, shown to be controlled by Mr Butler. In each case there is sufficient evidence that Mr Butler was present at the time of the unloading, walking around and watching the operation but not participating in the actual work of unloading. The inference is clearly open that he was acting in a supervisory capacity and this was, no doubt, the reason why Fox J sustained the importation counts. It seems to us that such evidence indicates, at least prima facie, that Mr Butler had possession - possibly in conjunction with others - of the material being unloaded at the premises he controlled. 2riog 58. Count 237 charged both first respondents with _importation, some time during October 1980, of about 7,000 pounds of marijuana. That count was sustained by Fox J against Mr Butler but not against Mr Riley. Count 24 alleges possession of the game load. Fox J held that the evidence was not sufficient to justify the trial of either man on that count. In support of these charges the Commonwealth relies upon the affidavits of four persons; Mr G Abell, Mr R Zeman, Mr W Macdonald and Mr GH Strickland. The affidavit of Mr Abell makes out a prima facie case, in relation to both charges, against Mr Butier. The unloading is said to have occurred at the dock of Mr Butler's next door neighbour, Mr Butler being present, walking around and observing. The inference of his having acted in a supervisory capacity is open. But Mr Abell's affidavit does not mention Mr Riley. Mr Zeman's affidavit clearly relates to the same occasion and it provides some evidence of the distribution of the marijuana but it does not itself implicate either man. Mr Zeman did not go to the unloading site. The affidavits of both Mr Macdonald and Mr Strickland do involve both Mr Butler and Mr Riley but it is far from clear that either deponent is speaking of the game load. Mr Macdonald puts the date as December 1980, not October 1980, he describes the location as being the Oyster Factory rather than Mr Butler's neighbour's dock and he describes the load as hashish, not marijuana. Mr Strickland speaks about a load of marijuana landed at the Oyster Factory in about late | ° September: 1979.. . Ne: agree. with .Foxr:J that the evidence: of..the two 59. see eee Dole Se deponents who. implicate Mr Riley cannot be related to this . offence and that there is, therefore, no sufficient case against . Mr Riley on either count. In summary, therefore, in respect of the importation and possession counts we would uphold the sufficiency of the evidence in relation to each first respondent as follows: a) against Mr Riley: Counts 3, 4, 7, 8, 9, 10, 11, 12, 13, 14, 19, 20, 25 and 26; b) against Mr Butler: Counts 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 23 and 24. Consideration of the Evidence: The Conspiracy Charges We refer now to the two conspiracy charges - counts 1 and 2. Count 1 alleged a conspiracy involving 23 named persons (including both first respondents) together with "various other persons" to knowingly, intentionally and unlawfully import into the United States marijuana-and hashish. The period of the conspiracy was said to be "from in or about 1974, the exact date being unknown to the Grand Jury and continuously thereafter up to and including the date of this indictment". Particulars were supplied as to the purpose of the conspiracy, the manner and means by which the. conspiracy was. carried out and of 54 overt acts in furtherance of the alleged conspiracy. Count 2 alleged a conspiracy between the game persons. knowingly, intentionally and te Mantel A at artperr canta sake 60. unla ean - ales © cn oF hag? RT hashish»! thé particulars being identical to those of count 1. ~ There is some evidence to suggest that in about 1974 a partnership arrangement, in respect of the illegal importation and distribution of marijuana and hashish, was reached between Mr Riley and a man named Lee Harvey and that pursuant to that arrangement ,various loads of drugs were landed. There is also evidence to suggest that in 1977 an association was formed between Mr Riley and Mr Harvey on the one hand and two men, already "partners", Julian Pernell and Barry Toombs, on the other, whereby the two partnerships would co-operate in -relation to certain future activities. Curiously, neither Mr Pernell nor Mr Toombs is amongst the 23 persons named in counts 1 and 2. After this agreement various joint activities occurred involving Riley, Harvey and Pernell, and Toombs but those activities are not shown to have involved Mr Butler or, indeed, many of the other named conspirators. Conversely, there were numerous activities shown to have involved Mr Riley - sometimes with and sometimes without Mr Harvey - but not Mr Pernell and Mr Toombs. .,.. Our impression from the evidence is that this is not a case of a single agreement to undertake unlawful activities which, from time to time, various persons joined and left but rather a case of a number of separate agreements. Prima facie, there was an unlawful Riley - Harvey - Pernell - Toombs agreement. It seems that there was also a standing arrangement weer a bag 61. between Mr Riley and Mr Butler (possibly also involving Mr Harvey) which might properly be described as a conspiracy. There "may have been other conspiracies between various individuals amongst those named; we have not attempted to sift them out. But we do not think that the evidence sustains the proposition that there was a single conspiracy of the type alleged in counts 1 and 2. The order for extradition should exclude those counts. If the first respondents are returned to the United States the authorities there may wish to substitute new conspiracy counts, perhaps more narrowly cast both in terms of period and membership. If so, and provided that the amended charges arise out of the material which has already been considered in these proceedings, it would appear to us - although we emphasise that the matter is entirely one for the Attornev-General - to be in accordance with the intent and spirit of both Article KXIV(2)(c) of the Treaty and of s.13(2) of the-Act for consent to be given to that course. Consideration of the Evidence: Continuing Criminal Enterprise The final charge is count 38, continuing criminal enterprise, brought against both first respondents. The principal contest before us in respect of this charge related to the legal issues discussed above. We have already held that, in principle, the offence is one in relation to which extradition 62. a ar Rox J took the opposite view and his Honour did not, thé i @,-come to discuss the sufficiency of the evidence .to sustain the count. We have indicated the possibility that, for the purposes of s.17(6)(b)(1) of the Extradition (Foreign States) Act it would be enough to prove one element of the offence of continuing criminal enterprise, provided it was itself a local offence. However, whether or not that view is correct, it seems to be clear that, in relation to an application to extradite to the United States, Article VI of the Treaty requires that the magistrate be satisifed of each of the elements of the United States offence. Those elements are set out above. There is abundant evidence against each of the first respondents of the commission by them of a series - three or more - of substantive offences of importation or possession of controlled substances, marijuana and hashish (elements (a) and (b) above). Elements («, and (d) require that the accused person undertook to commit that series of offences in concert with five or more persons and that in relation to them he occupied a managerial or supervisory position. According to Ms Currie it is not necessary that the five persons be involved upon each occasion or, it seems, that the same five people be involved throughout. According to oral evidence given before Mr McKenzie SM by Mr J D Bailey, an American. lawyer called by counsel for Mr Butler, it is enough that there be five people in relation to whom the accused person occupied the position of manager or supervisor, it being not ' ¢ Aches att) goat nto oo Li » thaebu woe tbs ae et 63. necessary. thes Ett: five people be involved at the one time. So understcod: there is no question that these elements are | satisfied. Each unloading operation involved more than five persons, in relation to which Mr Riley and/or Mr Butler stood in the position of manager or supervisor. As it happens, although it does not appear to matter, many of the persons in subordinate positions were involved in numerous occasions so that it is true of each first respondent that there were at least five individuals whom he supervised on at least three occasions. Finally, the evidence must show that the accused person has obtained "substantial income or resources" from the series of offences. This element is less formidable than it sounds. According to Mr Bailey, the word "substantial" has been interpreted in the United States merely to exclude trivial earnings; in one case $2,000 was held to satisfy the requirement. The reference is to gross earnings; it is not necessary to show a net profit from the series of offences and the authorities indicate that payments made by the accused person may be taken into account as circumstantial evidence of his gross receipts. Applying this guidance, it is clear that, in relation to each first respondent, there is evidence of the derivation of substantial income or resources. There is evidence of an admission by Mr Riley that he paid to Mr Butler the sum of $100,000 for providing off load sites for drug smuggling. This is not evidence against Mr Butler but there is evidence from Mr Strickland of the receipt by Mr Butler at Mr Riley's house of a 64. particular importations, yielding to Mr Riley sums running into millions of dollars. Additionally, there is powerful circumstantial evidence, arising from the scale of payments to the deponents who occupied subordinate positions, of the income derived-from the operations in which they were involved. There is, accordingly, sufficient evidence to satisfy all of the elements of this offence. Procedural Matters Grounds (e) and (f) relied upon by Mr Butler in his Notice of Cross-Appeal relate to the handling of the matter by the respondent magistrate. It was said that the magistrate denied natural justice by failing to rule upon certain questions of admissibility prior to his final judgement in the case, that he erroneously took into consideration against Mr Butler material tendered against Mr Riley or which had not accompanied the request for extradition and that the form of order made by him betrayed an erroneous view of the onus of proof. These were not matters put to Fox J but we have read the relevant passages in the transcript before the magistrate. It is enough to say that none of these complaints is made out. a tas ayy The appeal brought by the Commonwealth in relation to Mr Riley should be upheld in relation to Counts 13, 14, and 38. The cross-appeal brought by Mr Riley should be dismissed. The appeal brought by the Commonwealth in respect of Mr Butler should be upheld as regards Counts 16, 18, 24 and 38. Mr Butler's cross-appeal: should be dismissed. Fox J made no order as to costs. That no doubt was a reflection of the fact that, although the application for review did not succeed in its entirety before him, the first respondents enjoyed significant success especially in relation to the matters of principle relating to the important continuing criminal enterprise count. However, on our view of the matter the Commonwealth has substantially succeeded in the proceedings failing, in respect of the counts pursued before us, only in relation to the two conspiracy charges, counts 1 and 2, and in relation to Mr Riley only - in respect of count 24. Those counts occupied little time before us or, it would seem, before Fox J. The appropriate course is to order each of the first respondents to pay to the Commonwealth three-quarters of its costs, both before us and at first instance. I certify that this ana the sixhy—uc preceding pages are a true copy df the Reasons for Judgement herein of the Court. associate Marah TMhOMehR, Date tf 1a.| ey 4 Ae i dee ae ec tee ee ae ate eared oe te