Riley and Butler v Commonwealth of Australia

• Jurisdiction: Australia Federal only
• Court: High Court
• Judgment Date: 18 December 1985
• Neutral Citation: 1985-1218 HCA C,[1985] HCA 82
• Date: 18 December 1985

Australia, High Court.

(Gibbs CJ; Wilson, Brennan, Deane and Dawson JJ)

Riley and Butler

and

The Commonwealth

Extradition — Double criminality — Nature of requirement — Whether offence must be one known to legal systems of requesting and requested States — Whether sufficient that conduct would be criminal in both countries — Crime for which extradition sought not known as such to law of requested State — Extradition Treaty between Australia and the United States, 1974 — Extradition (Foreign States) Act 1966 (Commonwealth)—The law of Australia

Summary: The facts:—The appellants were charged in the United States with a number of offences involving the importation, possession and distribution of drugs, including a count of continuing criminal enterprise. The United States requested their extradition from Australia under the Extradition (Foreign States) Act 1966 (Commonwealth) (‘the 1966 Act’). The Magistrate in New South Wales, acting under Section 17(6) of the 1966 Act, committed them to prison to await the warrants for extradition. Applications to the Federal Court for a review of the Magistrate's decision were dismissed but the Federal Court declared that the applicants were not liable to be surrendered in respect of a number of the alleged offences, including that of continuing criminal enterprise. This meant that ‘continuing criminal enterprise’ was not an offence for which extradition was granted and, according to Article XIV(2) of the Extradition Treaty between Australia and the United States of America, 1974 (‘the Treaty’), the appellants, if extradited, could not have been tried for such an offence.

An appeal by the Commonwealth to the Full Court of the Federal Court of Appeal was allowed and the order of the Federal Court varied by deleting the declaration regarding the offence of continuing criminal enterprise. The applicants appealed to the High Court of Australia.

Held:—The appeals were dismissed.

(1) Although the offence of ‘continuing criminal enterprise’ was an offence not known as such to the law of New South Wales, it was, within the ordinary and natural meaning of the words in Section 4(1A), an offence constituted by two or more acts or any ‘equivalent act or omission’ which, if they had taken place in New South Wales, would have constituted an offence against the law in force in that part of Australia, namely the law as described in Schedule 1 to the 1966 Act as ‘an offence against the law relating to dangerous drugs, narcotic or psychotropic substances’. Consequently, the offence of continuing criminal enterprise was an extradition crime (p. 148).

(2) The offence of continuing criminal enterprise was a felony under United States law and was an offence made extraditable under the extradition law of Australia as an extradition crime within the terms of Section 4(1A) of the 1966 Act. Section 4(1A) expressly excluded the principle of double criminality as it did not require that an offence which was an extradition crime should be an offence in Australia. Article 11(2) of the Treaty also suggested that nothing more was required to warrant extradition than compliance with the two conditions expressly set out in the paragraph and did not require double criminality to be satisfied. Consequently, the offence of continuing criminal enterprise was an extraditable offence under Article 11(2) of the Treaty (pp. 149–50).

Per Brennan J: The offence of continuing criminal enterprise was an offence within the terms of Article 11(3) of the Treaty as ‘an offence against a federal law of the United States of America’ and ‘a substantial element’ of it was ‘an offence against the law relating to narcotic, dangerous drugs or psychotropic substances’ (Article 11(1) of the Treaty) (p. 152).

Per Deane J: The requirement of double criminality was satisfied if the acts in respect of which extradition was sought were criminal under both systems even if the relevant offences had different names and elements. Accordingly, neither Section 4(1A) of the 1966 Act nor Article 11(2) of the Treaty failed to recognize and observe the requirement. Section 4(1 A) gave statutory effect to the requirement of double criminality—in the case of a simple offence ‘the act or omission constituting the offence … would, if it took place in, or within the jurisdiction of, the part of Australia where the person accused or convicted of the offence is found, constitute an offence against the law in force in that part of Australia’. Similarly, Article 11(2) of the Treaty related only to an offence that was ‘made extraditable under the extradition laws of Australia’, i.e., where extradition to a non-Commonwealth country was involved, to an offence which was an ‘extradition crime’ under the 1966 Act (pp. 156–8).

The following is the text of the judgments delivered in the High Court:

Gibbs CJ, Wilson and Dawson JJ. The questions for decision on these two appeals are whether the offence against the law of the United States of America known as continuing criminal enterprise is an ‘extradition crime’ within the meaning of the Extradition (Foreign States) Act 1966 (Cth) as amended (the Act) and whether a person charged with such an offence is liable to extradition to the United States under the Act and the Treaty on Extradition between Australia and the United States of America (the Treaty), which came into force on 8 May 1976 and is set out in the Schedule to the Extradition (United States of America) Regulations (the regulations). The provisions of the Act have been substantially amended by the Extradition (Foreign States) Amendment Act 1985 (Cth), but in this judgment they will be cited as they were at the material times, before that Act was passed. The offence of continuing criminal enterprise is created by s 848 of Title 21 of the United States Code and it appears that to prove that such an offence was committed in the present cases it is necessary to establish the following elements:—

• (1) that the defendant violated certain provisions of the law, including those which make it an offence knowingly, intentionally and unlawfully to possess marijuana or hashish with intent to distribute it, or knowingly, intentionally and unlawfully to cause marijuana or hashish to be imported into the United States;

• (2) that such violation was part of a continuing series of violations by the defendant of the federal narcotics laws of the United States;

• (3) that such series of violations was undertaken by the defendant in concert with five or more persons,

• (4) that the defendant occupied the position of organizer or any other position of management with respect to such five or more persons in the said undertaking; and

• (5) that the defendant obtained substantial income or resources from the continuing series of violations.

Each of the appellants was charged on indictment in the United States with a number of offences against the law of the United States which involved the importation, possession and distribution of drugs. The charges in each case included a count of continuing criminal enterprise. The appellants were found to be in Australia and requests were made by the United States for their extradition. The procedure provided by the Act was followed and a magistrate in New South Wales, acting under s 17(6) of the Act, by warrants committed each appellant to prison to await the warrant of the Attorney-General for his surrender. Each of the appellants then applied to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth), as amended, to review the decision of the magistrate that the warrants should be issued. The matter came before Fox J who held that the challenge to the issue of the warrants failed and dismissed the applications. However, he declared that the appellants were not liable to be surrendered to the United States in respect of a number of the alleged offences, including that of continuing criminal enterprise, and that the warrants were not supported by those offences. The significance of this declaration was that it established that continuing criminal enterprise was not an offence for which extradition was granted, with the result that under Art XIV(2) of the Treaty, an appellant, if extradited to the United States, could not be tried there for the offence of continuing criminal enterprise unless he had left the territory of the United States after his extradition and voluntarily returned to it, or he had not left the territory of the United States within 30 days after being free to do so, or the Commonwealth of Australia had consented to his trial for that offence. From this decision in each case the Commonwealth appealed to the Full Court of the Federal Court, which allowed each appeal and varied the order of Fox J by deleting the declarations with regard to the offence of continuing criminal enterprise and in certain other respects not now material. The appellants now appeal to this court from that judgment whose effect, of course, is that in the United States they will be liable to be tried on the charge of continuing criminal enterprise, an offence which carries severe punishment.

It is not in contest that the combined effect of s 10(1) of the Act and reg 3 of the regulations is that the Act applies in relation to the United States subject, inter alia, to the Treaty. In other words, it would not be enough that the provisions of the Act by themselves authorized extradition to the United States in a particular case if the Treaty did not do so. It is first necessary to consider whether the Act authorizes an extradition in respect of an offence of continuing criminal enterprise. It is common ground that no person is liable to be arrested and surrendered to another State under the Act unless he is accused, or has been convicted, of an ‘extradition crime’: see definition of ‘fugitive’ in ss 4(1) and 12.

Accordingly, the power of a magistrate to issue a warrant committing a person to prison to await...