Truong v The Queen

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

HONG PHUC TRUONG  APPELLANT

AND

THE QUEEN  RESPONDENT

Truong v The Queen [2004] HCA 10

4 March 2004
M226/2002

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Victoria

Representation:

O P Holdenson QC with J B McDougall for the appellant (instructed by Clarebrough Pica)

P A Coghlan QC with K E Judd for the respondent (instructed by Solicitor for Public Prosecutions (Victoria))

Interveners:

D M J Bennett QC, Solicitor‑General of the Commonwealth with M M Gordon intervening on behalf of the Attorney‑General of the Commonwealth (instructed by Australian Government Solicitor) at the hearing on 28 May 2003

D M J Bennett QC, Solicitor‑General of the Commonwealth with M M Gordon SC and L G De Ferrari intervening on behalf of the Attorney‑General of the Commonwealth (instructed by Australian Government Solicitor) at the hearing on 3 December 2003

R J Meadows QC, Solicitor‑General for the State of Western Australia with J C Pritchard intervening on behalf of the Attorney‑General for the State of Western Australia (instructed by Crown Solicitor's Office (Western Australia)) at the hearing on 3 December 2003

P M Tate SC, Solicitor‑General for the State of Victoria with K L Emerton intervening on behalf of the Attorney‑General for the State of Victoria (instructed by Victorian Government Solicitor) at the hearing on 3 December 2003

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Truong v The Queen

Extradition – Extradition to Australia from other countries – Extradition Act 1988 (Cth), Pt IV (ss 40‑44) – Speciality – Offences for which extraditable person surrendered – Request for extradition for offences including murder, kidnapping, conspiracy to commit murder and conspiracy to kidnap – Appellant surrendered to Australia in relation to conspiracy to commit murder and conspiracy to kidnap – Appellant charged and tried in Supreme Court of Victoria for murder and kidnapping – Whether offences of murder and kidnapping were offences of which the appellant could be convicted on proof of the conduct constituting the offences of conspiracy to commit murder and conspiracy to kidnap.

Extradition – Speciality – Speciality arrangement between Australia and the United Kingdom – Speciality arrangement under Extradition Act 1989 (UK) – Whether breach of speciality arrangement.

Constitutional law – State Supreme Court – Jurisdiction of the Supreme Court of Victoria – Extraditable person "shall not ... be ... tried in Australia" for any offence other than any offence in respect of which the person was surrendered or "any other offence ... of which the person could be convicted on proof of the conduct constituting any such offence" – Whether trial of appellant for offences of murder and kidnapping beyond the jurisdiction of the Supreme Court of Victoria – Whether prohibition of trial for offences (other than offence for which extradited and offence of which the extraditable person could be convicted on proof of the conduct constituting the extradition offence) founded special plea to the arraignment or withdrew jurisdiction from court over the trial for the offence for which the extraditable person "shall not be tried" – Whether trial of offence for which the extraditable person "shall not be tried" a miscarriage of justice.

Criminal law – Murder – Kidnapping – Conspiracy to murder – Conspiracy to kidnap.

Extradition Act 1988 (Cth), ss 10, 42.
Crimes Act 1958 (Vic), ss 321A, 323.
Extradition Act 1989 (UK).

1. GLEESON CJ, McHUGH AND HEYDON JJ. This appeal concerns the meaning and effect of s 42 of the Extradition Act 1988 (Cth) ("the Act"), which deals with a topic commonly known as "speciality"[1], in its application to a person who was surrendered by a foreign country in respect of offences of conspiracy to kidnap and conspiracy to murder, and subsequently tried in Australia for the offences of kidnapping and murder.

   [1]cf Oates v Attorney-General(Cth) (2003) 77 ALJR 980 at 982 [13]; 197 ALR 105 at 108.

2. The appellant claims that he was tried in contravention of s 42. He was convicted of kidnapping and murder. The point was not taken at the trial, which took place in the Supreme Court of Victoria before Vincent J and a jury. It was relied upon as the sole ground in an application to the Court of Appeal of Victoria for leave to appeal against both convictions. The application was dismissed[2].  The appellant was granted special leave to appeal to this Court.

   [2]R v Truong (2002) 5 VR 1.

3. Because such a point would ordinarily be taken before a trial, perhaps in an attempt to stay further proceedings, the Court of Appeal was in the unusual position of considering the arguments of the appellant in the light of the case made against him, and accepted by the jury, at trial.  It is convenient to explain the facts by reference to that case, bearing always in mind that greater significance may attach to the case against the appellant as presented in the proceedings for extradition, if there were a material difference.

   The case at trial

4. The appellant, a Vietnamese national who resided in London, was alleged to be the head of a network of criminals engaged in trafficking in illegal drugs and operating in Hong Kong, Vietnam, Australia and elsewhere.  He had a sister named Mrs Van, who lived in Melbourne.  Through her, he came to know Mrs Ha, a wealthy importer of clothing and footwear, who also lived in Melbourne.  Mrs Ha had a son, Le Anh Tuan.  The appellant and his sister attempted to recruit Mrs Ha to join their illegal activities.  In March 1996, the appellant met Mrs Ha in Melbourne.  In addition to seeking her assistance, he also threatened that there would be serious consequences for her or her family if she did not co-operate.  He then flew to Hong Kong, but continued to communicate with Mrs Ha by telephone.  She rejected his requests.  He demanded $400,000 protection money.  She refused to pay.

5. In mid-April 1996, two Vietnamese criminals, resident in the United States, arrived in Sydney.  They were allegedly acting at the direction of the appellant.  They kidnapped Mrs Ha's son.  A ransom was demanded but refused.  The ransom note stated that the victim had "gone with the guys from [the appellant's] company" and that Mrs Ha had "72 hours to pay the money".  After the kidnapping the appellant, by telephone, made further threats to Mrs Ha.  Both before and after the kidnapping, the threats included reference to the need for her to have coffins ready.  In early June 1996, the son's body was found in an aqueduct.  The cause of death was a single gunshot wound to the head.

6. Ormiston JA, who wrote the leading judgment in the Court of Appeal, summarised the prosecution case as follows: 

   "It was contended that the [appellant] (and his co-accused [Mrs Van]) procured the commission of both the kidnapping and the consequent murder.  It was said that they planned and organised both the kidnapping and the subsequent murder and that the [appellant] was the mastermind and Mrs Van was the facilitator in that she passed on the demands to Mrs Ha.  So it was said that both the [appellant] and Mrs Van were actively involved and thus directly responsible for the kidnapping and that, inasmuch as they were fully aware of the consequences if the ransom were not paid, they were also responsible for the young man's murder, even though the later execution was carried out by others."

7. If the prosecution established beyond reasonable doubt that the appellant procured the kidnapping and murder, as alleged, he was liable as a principal offender[3].  Furthermore, even though the appellant may have been outside Victoria (whether in Hong Kong, London, or, for that matter, Sydney) for part or even the whole of the time when he procured the commission in Victoria of the crimes, he was guilty of offences against the law of Victoria[4] and was amenable to the jurisdiction of the Supreme Court of Victoria[5].

   [3]Crimes Act 1958 (Vic), s 323.

   [4]R v Robert Millar (Contractors) Ltd [1970] 2 QB 54; Liangsiriprasert v United States [1991] 1 AC 225; R v Fan (1991) 24 NSWLR 60.

   [5]Lipohar v The Queen (1999) 200 CLR 485.

   The original charges

8. After the discovery of the body of Le Anh Tuan there was a police investigation in Victoria which resulted in the bringing and filing of eight charges against the appellant.  (Other people were charged as well.)  Those charges were murder, kidnapping, conspiracy to murder, conspiracy to kidnap, blackmail, making a demand with a threat to kill, and two charges of illegal importation of heroin.

   The extradition

9. In September 1997, pursuant to s 40 of the Act, a request was made by Australia, under the authority of the Commonwealth Attorney-General, to the Secretary of State for Home Affairs of the United Kingdom, for the surrender of the appellant. The request was not in evidence in the present proceedings, but Ormiston JA noted that "there seems little doubt that the subject offences were expressed in terms of State or Commonwealth (the drug offences) law". That must be so. Section 40 refers to a request by Australia for the surrender of a person from a country "in relation to an offence against a law of Australia of which the person is accused". This led the Secretary of State for Home Affairs of the United Kingdom to issue an authority to proceed directed to the Chief Metropolitan Stipendiary Magistrate sitting at Bow Street, which described the subject matter of the inquiry to be conducted as "conduct in the jurisdiction of the Government of Australia which appears to the Secretary of State to be conduct which, had it occurred in the United Kingdom, would have constituted offences of murder, false imprisonment, conspiracy to commit murder, conspiracy to commit blackmail, kidnap, conspiracy to kidnap, threats to kill, conspiracy to be knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, namely heroin".

10. The relevant provisions of the United Kingdom legislation relating to extradition are set out in the joint reasons for judgment of Gummow and Callinan JJ ("the joint reasons").  We will not repeat them.  Reference is also made in the joint reasons to the course of proceedings before the Bow Street Magistrate, who was initially informed by counsel for Australia that the appellant was wanted by the Government of Australia for murder, kidnapping, conspiracy to commit murder, conspiracy to kidnap, blackmail, extortion with threat to kill, conspiracy to import a prohibited drug, namely heroin, and knowing involvement in the importation of heroin.  Once again, that is plainly a reference to offences against Australian law.  The Government of Australia would not be wanting a person for offences against some other country's law.

11. It is convenient to refer at this point to a matter that is ordinarily of concern in extradition proceedings, but is not directly relevant in the present appeal.  That is the matter of double criminality.  In Riley v The Commonwealth[6], it was pointed out that this is a general principle of extradition law which is ordinarily reflected in statutes governing extradition, and applies according to the terms of the relevant statute.  The general principle was identified by reference to a passage in Oppenheim's International Law[7]:

    "And no person is to be extradited whose deed is not a crime according to the Criminal Law of the State which is asked to extradite, as well as of the State which demands extradition."

    [6](1985) 159 CLR 1 at 11-12.

    [7]8th ed (1955), vol 1 at 701.

12. That principle is reflected in the United Kingdom legislation, and explains a potential ambiguity in the concept of "offences".  As the joint reasons point out, that ambiguity appears to have given rise to confusion in some of the documents in the extradition proceedings.

13. The material before the Magistrate included a lengthy affidavit of Detective Senior Constable Tragardh of the Victoria Police Force. That affidavit set out the results of the investigation into the kidnapping and death of Le Anh Tuan, and explained the nature of the evidence against the appellant. In terms of s 10(2) of the Act, it is the document that sets out the acts or omissions by virtue of which the offences alleged against the appellant had been committed. There was no material difference between the evidence that was led against the appellant at his trial and the facts outlined in the Tragardh affidavit. Three important aspects of those facts should be noted. First, the case against the appellant was circumstantial. Secondly, so far as the alleged offences of conspiracy to murder and conspiracy to kidnap were concerned, the overt acts from which the existence of the conspiracies was to be inferred included the actual kidnapping and murder. There is nothing unusual about this. Criminal conspiracies are commonly proved by overt acts; and the overt acts often include the substantive crimes which are the object of the conspiracy. A legally informed reader of the Tragardh affidavit would clearly have understood that the overt acts of kidnapping and murder were important, perhaps critical, aspects of the cases of conspiracy which Australia, at that stage, intended to present against the appellant at his trial. They constituted the most significant parts of the evidence upon which those cases depended. Furthermore, the conspiracies in which the appellant participated were alleged to be continuing conspiracies which remained on foot up to and including the time of the kidnapping and the murder. There was no suggestion in the affidavit that the prosecution would, or could, seek to make out cases of conspiracy which involved an unperformed agreement to commit crimes. It is apparent from the material in the affidavit that the acts of performance of the agreement were relied on heavily, both in proof of the agreement, and in defining the extent of the agreement. Thirdly, the allegation was that the appellant was "the most senior member of a network of Vietnamese criminals" based in Hong Kong and that Mrs Van and the two men who entered Australia from the United States, and who allegedly committed the acts of kidnapping and murder, were assisting, and acting at the direction of, the appellant. In other words, the allegation was that, and the material outlined in the Tragardh affidavit supported the inference that, the appellant organised and directed the kidnapping and murder. Thus, the conduct of the appellant alleged to make the appellant liable as a principal for kidnapping and murder (procuring the two men from the United States to kidnap and, if necessary, kill the victim) was the same as the conduct alleged to make him a party to a conspiracy to kidnap and murder. He was not said to be guilty of kidnapping or murder because he himself kidnapped or killed the victim. His liability was based on the procuring. But that was also the act by virtue of which he was allegedly a party to the conspiracy to kidnap and murder.

14. The Tragardh affidavit concluded with a statement of the charges against the appellant that had been filed in Melbourne.  They were, of course, expressed in terms of offences against Australian law.  They were murder, kidnapping, conspiracy to murder, conspiracy to kidnap, demanding money with menaces (blackmail), demanding money with a threat to kill, conspiracy to import heroin, and being knowingly concerned in the importation of heroin.

15. For a reason that is unknown, counsel for Australia, when identifying the "draft charges upon which extradition is sought", included the conspiracy charges, but omitted the charges of murder and kidnapping.  In the course of argument in this Court, there was some speculation as to why that might have occurred.  In the light of the decision of the House of Lords in Director of Public Prosecutions v Doot[8] it can hardly have been because of some apprehension that the principles of territoriality which affect procuring the commission of a crime might be different from those which affect conspiracy.  Whatever the reason, one thing is clear.  Having regard to the contents of the Tragardh affidavit, neither the speciality provisions of the United Kingdom statute, nor the terms of the speciality agreement that was entered into by Australia, would have been inconsistent with a prosecution of the appellant in Australia for murder and kidnapping, even if he were only surrendered in respect of the offences of conspiracy to murder and conspiracy to kidnap.  The reasons for that will be explained below.  Counsel would have been aware of that.  Accordingly, we do not accept that the narrowing of the charges in respect of which surrender was sought involved any express or implied undertaking not to try the appellant for the substantive offences.  On the contrary, the terms of the speciality agreement entered into by Australia for the purpose of the extradition left that possibility open.

    [8][1973] AC 807.

16. The Metropolitan Magistrate, pursuant to s 9(9) of the Extradition Act 1989 (UK), certified that the conduct alleged within the jurisdiction of the Government of Australia would amount to certain offences against the law of the United Kingdom, namely conspiracy to commit murder, conspiracy to kidnap, conspiracy to commit blackmail and conspiracy to be knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, namely heroin.  On receipt of that certificate, the Secretary of State signed a surrender warrant ordering the appellant to be returned to Australia in respect of the offences for which he was committed to custody by the Magistrate.  The warrant, erroneously, identified the offences of which the appellant was accused in terms of United Kingdom offences.  This is evident because one of them, "conspiracy to be knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, namely heroin", is an offence known to the law of the United Kingdom, but not to Australian law.  The offences included conspiracy to murder and conspiracy to kidnap, but not murder or kidnapping.

17. Those were the circumstances in which the appellant was surrendered to Australia where, in due course, he was tried for the substantive offences of murder and kidnapping.

    The speciality

18. Section 42 of the Act, upon which the present appeal turns, provides:

    "Where an extraditable person in relation to Australia is surrendered to Australia by a country (other than New Zealand), the person shall not, unless he or she has left, or has had the opportunity of leaving, Australia or, in a case where the person was surrendered to Australia for a limited period, has been returned to the country:

    (a)be detained or tried in Australia for any offence that is alleged to have been committed, or was committed, before the surrender of the person, other than:

    (i)any offence in respect of which the person was surrendered or any other offence (being an offence for which the penalty is the same or is a shorter maximum period of imprisonment or other deprivation of liberty) of which the person could be convicted on proof of the conduct constituting any such offence; or

    (ii)any other offence in respect of which the country consents to the person being so detained or tried, as the case may be; or

    (b)be detained in Australia for the purposes of being surrendered to another country for trial or punishment for any offence that is alleged to have been committed, or was committed, before the surrender of the person to Australia, other than any other offence in respect of which the country that surrendered the person to Australia consents to the person being so detained and surrendered."

19. That section must be understood in the light of s 10(2) of the Act which provides:

    "A reference in this Act to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed."

20. The reference to the acts or omissions by virtue of which an offence is alleged to have been committed is of central importance in this appeal. It directs attention to the concrete, rather than the abstract. The offences of which s 42, interpreted in accordance with s 10(2), speaks are not theoretical offences, to be described by reference to the contents of a text book. They are specific offences, alleged to have been committed by a particular individual, by virtue of particular conduct. This is of special importance when dealing with such a protean offence as conspiracy.

21. Section 42 reflects a general principle of extradition law which has been formulated in varying ways, and which has found somewhat different forms of statutory expression. The reasons of Ormiston JA contain a detailed examination of those variations and differences[9].  Some caution is necessary in adopting general statements of the principle which may have been made in a context in which it was unnecessary to advert to questions of its detailed application.  It is the language of the particular statutory provision reflecting the principle that matters, although the resolution of uncertainty about the meaning of that language may be assisted by an understanding of broader issues, and of the legislative history.

    [9]R v Truong (2002) 5 VR 1 at 27-34.

22. The Extradition Act 1870 (UK) was the precursor of both the current Australian legislation and the current United Kingdom legislation, although there was intermediate legislation. Section 19 of the Act of 1870 provided that where, in pursuance of any arrangement with a foreign state, any person accused of a crime is surrendered by that foreign state, "such person shall not, until he has been restored or had an opportunity of returning to such foreign state, be triable or tried for any offence ... other than such of the said crimes as may be proved by the facts on which the surrender is grounded".

23. The reference to "the facts on which the surrender is grounded" relates to a significant practical consideration in connection with extradition. By hypothesis, the person surrendered to the United Kingdom or Australia is wanted for trial for an offence or offences against the law of the country where the trial is to occur. But the criminal law of the foreign country surrendering the person will almost certainly be different in some respects, and will often be different in many respects, from that of the country of trial. The administrative or judicial officers dealing with extradition are not experts in foreign law. It happens, in the present case, that the law of the United Kingdom in relation to the appellant's alleged conduct is not very different from Australian law. That should not obscure the fact that extradition legislation is designed to operate as between countries whose laws may be quite different. Hence the operation of the speciality, in the Act of 1870, by reference to the facts on which the surrender by the foreign country was grounded rather than, for example, the offences against the law of the foreign country disclosed by those facts. There may have been no such offence known to the law of the United Kingdom, or Australia, as the case may be. Even if there were similar offences, they may not correspond precisely in their elements. There is a discussion of this problem in Riley v The Commonwealth[10].

    [10](1985) 159 CLR 1.

24. The current United Kingdom legislation, pursuant to which the appellant was surrendered, in s 6(4) provides that a person shall not be returned from the United Kingdom unless provision is made by an arrangement with the country seeking return for securing that the person shall not, unless he has first had the opportunity to leave such country, be dealt with for any offence committed before his return to it other than the offence in respect of which his return is ordered, an offence "which is disclosed by the facts in respect of which his return was ordered", or any other offence being an extradition crime in respect of which the Secretary of State may consent to his being dealt with.  In accordance with that requirement, the Secretary of State certified that an arrangement had been made with the Government of Australia that the appellant, unless he had first had an opportunity to leave Australia, would not be dealt with in Australia for any offence committed before his return other than the offences in respect of which his return was ordered, or another offence "which is disclosed by the facts in respect of which his return was ordered" or any other offence being an extradition crime in respect of which the Secretary of State may consent to his being dealt with.

25. Having regard to the contents of the Tragardh affidavit it is clear that the substantive offences of kidnapping and murder were offences disclosed by the facts in respect of which the return of the appellant was ordered. It cannot be, and is not, claimed that Australia was in breach of the speciality agreement it made with the United Kingdom by reason of the appellant's trial for kidnapping and murder. However, the appellant contends that the constraint imposed by s 42 of the Act is more stringent than the speciality principle as reflected in the United Kingdom statute, and in the speciality agreement made in the present case. According to the argument, the Australian legislation imposes a tighter regime of speciality, and one with which the trial of the appellant did not comply.

26. The first point to be made about s 42(a) is that the offences to which it refers are offences against an Australian law. The provision is about trying people for offences in Australia. That can only be a reference to offences against Australian law. People are not tried in Australia for offences against foreign law. The word "offence" has the same meaning throughout s 42(a). Thus, "offence" in s 42(a)(i) means "offence against the law of Australia".

27. Having regard to the course of the extradition proceedings in London, we accept that the offences in respect of which the appellant was surrendered included conspiracy to kidnap and conspiracy to murder, and did not include kidnapping and murder.

28. The question then is whether kidnapping and murder, in the circumstances of the present case, were offences of which the appellant could be convicted on proof of the conduct constituting the offences in respect of which he was surrendered. (At the relevant time no problem existed by reason of the words in parenthesis in s 42(a)(i).) In that respect, in consequence of s 10(2), the reference to the conduct constituting the offences in respect of which he was surrendered is a reference to the acts or omissions by virtue of which those offences had, or were alleged to have, been committed. The acts or omissions by virtue of which the offences of conspiracy to kidnap and conspiracy to murder were, or were alleged to have been, committed are to be identified by reference to the Tragardh affidavit, understood in the light of the criminal law of conspiracy as it applies in Australia.

29. The question, in our view, is not to be answered merely by a comparison of the elements of the (Australian) offences in respect of which the person has been surrendered and the (Australian) offences in respect of which he is to be, or was, tried, although an understanding of those elements is material.  The acts or omissions, that is, the conduct, by virtue of which an offence has been, or is alleged to have been, committed, lie at a level of abstraction between a formal statement of the elements of the offence, on the one hand, and an account of the evidence relied on to prove the relevant conduct, on the other.  Nor is the relevant comparison between the bare minimum that would be necessary to make out offences of the kind under consideration.  The exercise required by the statute is concrete, not abstract, and is to proceed by reference to the actual conduct alleged against the person in question.  In the present case, it is also important to bear in mind that the substantive offences for which the appellant was ultimately tried were offences in respect of which his liability as a principal was based upon a statutory provision to the effect that a person who aids, abets, counsels or procures the commission of an indictable offence may be tried, indicted or presented and punished as a principal offender[11].

    [11]Crimes Act 1958 (Vic), s 323.

30. While the concept of aiding, abetting, counselling or procuring may extend beyond cases in which there is an agreement between the principal offender and the secondary participant[12], the term procure has a narrower meaning.  In Attorney-General's Reference (No 1 of 1975)[13], Lord Widgery CJ said:

    "To procure means to produce by endeavour.  You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening."

    [12]Giorgianni v The Queen (1985) 156 CLR 473 at 493 per Mason J.

    [13][1975] QB 773 at 779.

31. Not all procuring necessarily involves a conspiracy.  However, in the present case, the nature of the procuring alleged against the appellant was straightforward.  It did not vary between the Tragardh affidavit, and the prosecution case at trial.  It was summarised in Vincent J's remarks on sentence:

    "Central to the prosecution case against you was the contention that you were ... 'the controlling mind', 'the shadow force' and 'the shadow master' who directed all that took place in relation to the kidnapping.  It was never argued that you may have been implicated in some less important way or that you may have performed some other role.  The jury was instructed and must, accordingly, be taken to have found you guilty on that very clearly identified basis.

    With respect to the count of murder, when and where Le Anh Tuan was executed by a bullet being fired into the back of his head is unknown and it is highly unlikely that we will ever learn who fired this single fatal shot.  What we do know is that he was kidnapped with the threat being made explicitly and implicitly that if the ransom was not paid as demanded his life would be forfeited ...  The jury has found beyond reasonable doubt that you directed that kidnapping and that you well appreciated that a reasonable possible consequence of your actions was the death of the deceased." (emphasis added)

32. In order to compare that case with the case of conspiracy in respect of which the appellant was surrendered, it is necessary to bear in mind certain aspects of the law of conspiracy.

    Conspiracy

33. The nature of the conspiracy to kidnap and conspiracy to murder alleged in the Tragardh affidavit, and in respect of which the appellant was surrendered, is not described adequately simply by saying that he was a party to an agreement to kidnap and, if necessary, kill Le Anh Tuan.  There was more to it than that.  Agreement (here, agreement to commit a crime) is the essence of conspiracy, but the nature and scope of the alleged agreement is important when performing the exercise, required by the statute, of identifying the acts or omissions by virtue of which the particular offence of conspiracy in question has, or is alleged to have, been committed.

34. The alleged agreement was constituted initially by a direction rather than a request.  According to the Tragardh affidavit, the appellant was the controller of a criminal syndicate, and engaged and directed the operatives from the United States who performed the kidnapping and killing.  He was in charge of their activities, from beginning to end.  There is no material difference between the conduct of the appellant which amounted to making and participating in the agreement for the purposes of conspiracy and the procuring for the purposes of the substantive offences.

35. Furthermore, the conspiracy was alleged to have continued in existence, and to have been completed by performance.  Although a crime of conspiracy has been committed, and in that sense is complete, once an agreement to commit a crime has been made, conspiracy is a continuing offence.  It is an error to think that the crime comes to an end once the agreement has come into existence.  That is the error that was rejected by this Court in Savvas v The Queen[14].  The point was explained by Lord Pearson in Director of Public Prosecutions v Doot[15]:

    "A conspiracy involves an agreement expressed or implied.  A conspiratorial agreement is not a contract, not legally binding, because it is unlawful.  But as an agreement it has its three stages, namely (1) making or formation (2) performance or implementation (3) discharge or termination.  When the conspiratorial agreement has been made, the offence of conspiracy is complete, it has been committed, and the conspirators can be prosecuted even though no performance has taken place ...  But the fact that the offence of conspiracy is complete at that stage does not mean that the conspiratorial agreement is finished with.  It is not dead.  If it is being performed, it is very much alive.  So long as the performance continues, it is operating, it is being carried out by the conspirators, and it is governing or at any rate influencing their conduct.  The conspiratorial agreement continues in operation and therefore in existence until it is discharged (terminated) by completion of its performance or by abandonment or frustration or however it may be."

    [14](1995) 183 CLR 1.

    [15][1973] AC 807 at 827.

36. It is not to the point in the present case to say that the appellant could have been convicted of conspiracy even if the plan had been intercepted by the police before the victim was kidnapped or killed.  We are not concerned with the theoretical question of what various crimes the appellant might have committed.  We are concerned with the particular conspiracy into which he allegedly entered, and in which he participated.

37. The conduct by virtue of which this particular conspiracy, in this particular case, was alleged to have been committed included the continuing performance of the agreement up to and including the killing of the victim.  Savvas is authority for the proposition that, if the appellant had been tried for, and convicted of, conspiracy rather than the substantive offences, the kidnapping and the killing would have been matters for the sentencing judge to take into account, being aspects of "the degree of criminality involved in the appellant's participation in the conspiracy"[16].

    [16]Savvas v The Queen (1995) 183 CLR 1 at 9.

38. Reference was made in argument to McAuliffe v The Queen[17] in support of a suggestion that the murder charge against the appellant involved materially different conduct from that involved in the conspiracy to murder charge.  Once again, the point is purely theoretical.  It involves making the wrong comparison.  It is unrelated to the circumstances of this particular case.  That is made plain by the remarks on sentence of the trial judge quoted above, which, in turn, reflect the way the jury was directed.  The allegation, in relation to procuring, at trial, was that the appellant was in command.  He "directed all that took place in relation to the kidnapping", including the threat of killing and the ultimate execution of the victim.  There was never any suggestion that the two thugs who were engaged by the appellant to carry out the kidnapping might have acted with excessive force, or behaved in some other way contrary to his instructions.  If they had done so, their own life expectations may have been considerably shortened.  The appellant's liability was based on procuring.  He was not left exposed as some unfortunate secondary participant caught up in events that escalated beyond what was planned.  He was the person in charge.  That was the way the conspiracy cases were put against him.  And that is the basis on which he was convicted of the substantive offences.

    [17](1995) 183 CLR 108.

    Conclusion

39. The case falls within the second limb of s 42(a)(i) understood in the light of s 10(2) of the Act. In the light of the nature of the cases of conspiracy to kidnap and conspiracy to murder that were put against the appellant, the acts or omissions by virtue of which he was alleged to have committed those offences were such that, on proof of those acts or omissions, he could be convicted of kidnapping and murder, as he was.

40. The appeal should be dismissed.

41. GUMMOW AND CALLINAN JJ. On 9 May 2000, at his trial in the Supreme Court of Victoria before Vincent J and a jury, the appellant was convicted on each of two counts in the presentment. One count was of kidnapping contrary to s 63A of the Crimes Act 1958 (Vic) ("the Crimes Act")[18].  The other count was of murder contrary to the common law.  Vincent J sentenced the appellant to life imprisonment on the count of murder and to 15 years imprisonment on the count of kidnapping, with a non‑parole period of 23 years and 8 months.  The appellant had been extradited to Australia from the United Kingdom in circumstances which will be detailed later in these reasons.

    [18]Section 63A states:

    "Whosoever leads takes or entices away or detains any person with intent to demand from that person or any other person any payment by way of ransom for the return or release of that person or with intent to gain for himself or any other person any advantage (however arising) from the detention of that person shall, whether or not any demand or threat is in fact made, be guilty of an indictable offence and liable to level 2 imprisonment (25 years maximum)."

42. It should be noted that, on his arraignment on 24 January 2000, the appellant had pleaded "Not Guilty" to both counts in the presentment. By that plea, the appellant was deemed by s 391 of the Crimes Act to have put himself upon the country for trial. Upon arraignment, the appellant had been "entitled to make plea of not guilty in addition to any demurrer or special plea" (s 390A). It is significant for what follows in these reasons that the appellant had not, rather than enter a plea of not guilty, demurred or entered a special plea that he could not be put on trial in the face of s 42 of the Extradition Act 1988 (Cth) ("the Act").

    The Court of Appeal

43. In his application to the Court of Appeal for leave to appeal against the conviction[19], the appellant contended that there had been a miscarriage of justice within the meaning of the first paragraph in s 568(1) of the Crimes Act because (i) the convictions were unlawful and (ii) the trial had constituted an abuse of process. The appellant further contended that the convictions and sentences were nullities. These complaints had not been made at the trial. To a significant degree, they turn upon provisions of the Act, including s 42. It may be accepted that, in the Court of Appeal, a matter arose under the Act, attracting the exercise of federal jurisdiction. However, as will appear, the conduct of the trial had not involved the exercise of federal jurisdiction. The Court of Appeal (Winneke P, Ormiston and Buchanan JJA) dismissed the application.

    [19]R v Truong (2002) 5 VR 1.

44. The grounds of appeal to the Court of Appeal, and now to this Court, reflect complaints respecting the circumstances in which the appellant was returned to Australia from the United Kingdom.  The appellant was arrested in London on 22 August 1997.  On 25 September 1997, a request was made on behalf of the Attorney-General of the Commonwealth to the United Kingdom that the appellant be returned to Australia to be dealt with according to law ("the Request").  The Request stated that the appellant was accused in the State of Victoria of the following offences:

    "(i)Murder contrary to the common law of Victoria (1 count);

    (ii)kidnapping contrary to section 63A of the [Crimes Act] (1 count);

    (iii)conspiracy to commit murder, and agreement to commit murder outside of Victoria, contrary to sections 321(1) and 321A of the [Crimes Act] (1 count);

    (iv)conspiracy to kidnap and agreement to kidnap outside of Victoria contrary to sections 321(1) and 321A of the [Crimes Act] (1 count);

    (v)Blackmail contrary to section 87 of the [Crimes Act] (1 count);

    (vi)Extortion with threat to kill contrary to section 27(1) of the [Crimes Act] (1 count);

    (vii)conspiracy to import a prohibited import, namely a commercial quantity of heroin contrary to section 233B of the Customs Act 1901 (Commonwealth) ['the Customs Act'] (1 count); and

    (viii)knowingly involved in the importation of a prohibited import, namely a commercial quantity of heroin contrary to section 233B of the [Customs Act] (1 count)."

    It will be observed that in the events that happened the appellant was convicted and sentenced in respect of offences (i) and (ii) and not on any of offences (iii)‑(viii).  Further, offences (vii) and (viii) were offences against a law of the Commonwealth; had they been charged on the presentment for trial in the Supreme Court, the Court would have been exercising federal jurisdiction, but there was no such eventuality.

45. Something more also should be said respecting offences (iii) and (iv), those concerned with conspiracy. With a presently immaterial qualification, s 321F of the Crimes Act abolishes the offence of conspiracy at common law. Then s 321(1) states:

    "Subject to this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which will involve the commission of an offence by one or more of the parties to the agreement, he is guilty of the indictable offence of conspiracy to commit that offence."

    Section 321A makes specific provision with respect to agreements to commit offences outside Victoria. Two provisions are made in that regard. First, s 321A(1) states:

    "The expression 'the commission of an offence' in section 321(1) extends to the commission of an offence against a law in force only in a place outside Victoria if, but only if –

    (a)the necessary elements of that offence include elements which, if present or occurring in Victoria, would constitute an offence against a law in Victoria; and

    (b)one or more of the persons referred to in section 321(1) is or are in Victoria when the agreement referred to in that sub‑section is made."

    Secondly, s 321A(2) provides:

    "Where all parties to an agreement are outside Victoria when it is made, section 321 shall apply in relation to it if, but only if, that agreement is to pursue a course of conduct which, if the agreement is carried out in accordance with their intentions, will necessarily amount to or involve the commission of an offence against a law in force in Victoria."

46. The materials before the Court of Appeal included a number of documents relative to the steps taken by the executive and judicial authorities of the United Kingdom in response to the Request.  The appellant maintains that under the procedures set out in the relevant law of the United Kingdom, the Extradition Act 1989 (UK) ("the UK Act")[20], he was returned to Australia in respect only of some of the offences listed in the Request, and that he was not returned in respect of those offences (i) and (ii) for which he was tried and convicted.  The result is said to be the vitiation of the appellant's trial on one or other of the grounds relied upon before the Court of Appeal and now in this Court.

    [20]References to the UK Act are to the statute as it stood in 1997, before the changes made pursuant to the Hong Kong (Extradition) Order 1997, SI 1997/1178.

    The facts

47. It is convenient now to say something more of the facts.  That task is assisted by the circumstance that the appellant has been tried, convicted and sentenced and that the record in this Court includes the evidence which the jury may be taken to have accepted and the remarks on sentence of the trial judge.  But it should be emphasised that the complaints made by the appellant focus upon an earlier stage in the proceedings and the identification of the offences in respect of which he was surrendered by the United Kingdom and those offences of which, looking at the matter before trial, he could have been convicted on proof of the conduct constituting the offences in respect of which he was surrendered.  That process of identification is not to be performed with the hindsight now available.

48. In his remarks on sentence, Vincent J said that the appellant had travelled across the world using false travel documents, was obviously involved in criminal activity, handled large sums representing the proceeds of crime and had the capacity to recruit assistance in Hong Kong, the United States and Australia.  All the principal actors were persons of Vietnamese national origin.  The appellant was a member of a Chinese ethnic minority in Vietnam.  At the time of trial, he was approximately 40 years of age.  The sister of the appellant, Mrs Van, lived in Melbourne.  The victim, Le Anh Tuan, was the 21‑year‑old son of Mrs Ha.  She was an importer and exporter of clothing and footwear and a person of wealth.  On 16 March 1996, the appellant, who had arrived from Hong Kong, met Mrs Ha in Melbourne.  He endeavoured to enlist her assistance in the importation of heroin.  At a later meeting, the appellant threatened Mrs Ha with unfortunate consequences for herself and her family should she not agree to take part.  Mrs Van also put pressure on Mrs Ha.  The appellant returned to Hong Kong and later went to London, but he continued in telephone conversations to put pressure on Mrs Ha, including demands for payment of $400,000 "protection money".

49. On 29 April 1996, Mrs Ha's son was kidnapped.  His body was found on 7 June 1996.  The cause of death was a single gunshot wound in the head.  The prosecution alleged that the killing was carried out by two Vietnamese identified as the Biu brothers, at the instigation of the appellant.  The trial judge, in accordance with authorities in this Court including McAuliffe v The Queen[21], directed the jury that, in order to convict the appellant of murder, the jury need only find beyond reasonable doubt that the appellant, having been a party to the kidnapping of the victim, knew or was aware that a realistic possible consequence of such was that the victim would be murdered.

    [21](1995) 183 CLR 108.

    The law of the United Kingdom

50. Against that background, the first issue is the identification of those offences against the law in force in Victoria for which the appellant was surrendered by the United Kingdom.  More specifically, did those offences include those for which the appellant was tried and convicted?

51. In attempting to answer that question, all parties, including the Attorney-General of the Commonwealth who intervened, looked to the UK Act and the steps taken by the authorities in that country in response to the Request.  That puts the Court in the necessary but somewhat invidious position of considering the efficacy under British law of the steps taken in the United Kingdom.  There was no evidence before the Court of Appeal upon any matters of foreign law and therefore none is before this Court.  However, no other course is immediately apparent if the Court is to determine the consequential issues of Australian law upon which the appeal turns.

52. The UK Act applies in respect of the extradition of persons at large after conviction of an extradition crime in the requesting State, and also in respect of those such as the appellant who are accused in that State of an extradition crime.  Section 1(2) provides for the arrest and return to certain Commonwealth countries, including Australia[22], in accordance with extradition procedures under Pt III of the statute, of certain persons in the United Kingdom.  They are persons accused of an extradition crime in Australia or alleged to be unlawfully at large after conviction of such an offence in Australia.  The expression "extradition crime" is so defined in s 2 to distinguish between "conduct in the territory of", relevantly, Australia (s 2(1)(a)), and "an extra-territorial offence against the law of [Australia]" (s 2(1)(b)) where the Australian jurisdiction is based on the nationality of the offender (s 2(3)(a)), or where the "equivalent conduct" would constitute an extra-territorial offence against United Kingdom law (s 2(2)).  This requirement of "double criminality" is assessed at the time of commission of the alleged offence[23].

    [22]Extradition (Designated Commonwealth Countries) Order 1991, SI 1991/1700.

    [23]R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147.

53. It should be noted that the extradition proceedings with which this case is concerned were conducted on the basis that, notwithstanding the identification in the Request of offences (iii) and (iv) by reference to the special provisions of s 321A of the Crimes Act (the text of which has been set out above), Australia did not rely upon extra-territorial offences within the meaning of s 2(1)(b).

54. Part II of the UK Act, which comprises s 6, is headed "RESTRICTIONS ON RETURN".  Section 6(4) implements in the United Kingdom that rule of international practice known as "the speciality rule".  The sub‑section provides that a person shall not be returned, or committed or kept in custody for the purposes of such return, unless, among other things, provision is made by an arrangement with the relevant Commonwealth country for securing that the person:

    "will not, unless he has first had an opportunity to leave it, be dealt with there for or in respect of any offence committed before his return to it other than –

    (a)the offence in respect of which his return is ordered;

    (b)an offence, other than an offence excluded by subsection (5) below, which is disclosed by the facts in respect of which his return was ordered; or

    (c)subject to subsection (6) below, any other offence being an extradition crime in respect of which the Secretary of State may consent to his being dealt with".

    Nothing turns for present purposes upon the exclusions by sub‑ss (5) and (6).  The arrangement referred to in s 6(4) may be an arrangement made for the particular case (s 6(7)).  Further, for the purposes of s 6(4), a certificate issued by or under the authority of the Secretary of State confirming the existence of such an arrangement and stating its terms is conclusive evidence of the matters contained in the certificate (s 6(7)).

55. In the present case, on 2 October 1997, the Secretary of State certified to the effect that an arrangement as mentioned in s 6(4) of the UK Act had been made with Australia with respect to the appellant.  The certificate used terms which followed the provisions of s 6(4), including pars (a), (b) and (c).

56. The procedures for surrender are set out in Pt III (ss 7‑17) and are governed by s 7.  That section stipulated that the appellant was not to be dealt with under Pt III except in pursuance of an order of the Secretary of State (referred to as an "authority to proceed") issued in pursuance of a request for his surrender (s 7(1)).  Section 7(2) states:

    "There shall be furnished with any such request –

    (a)particulars of the person whose return is requested;

    (b)particulars of the offence of which he is accused or was convicted (including evidence or, in a case falling within subsection (2A) below^[[24]^], information sufficient to justify the issue of a warrant for his arrest under this Act);

    (c)in the case of a person accused of an offence, a warrant or a duly authenticated copy of a warrant for his arrest issued in the foreign state, Commonwealth country or colony; and

    (d)in the case of a person unlawfully at large after conviction of an offence, a certificate or a duly authenticated copy of a certificate of the conviction and sentence,

    and copies of them shall be served on the person whose return is requested before he is brought before the court of committal."

    [24]Section 7(2A) is a special provision concerning extradition where certain Orders in Council are in force.

57. Section 7(2), like other provisions in the UK Act, is drawn so as to identify one offence in respect of which return is requested.  The Request with which this appeal is concerned stipulated a plurality of offences and the UK Act was applied accordingly.  The materials furnished with the Request in the present case included the affidavit of Detective Senior Constable Tragardh sworn on 26 September 1997.  This was a document of 70 pages and gave a detailed summary of the then available evidence against the appellant.  The affidavit concluded with the specification of the eight charges identified in the Request.

58. The phrase in s 7(1) "authority to proceed" is given content by s 7(5).  This states:

    "An authority to proceed shall specify the offence or offences under the law of the United Kingdom which it appears to the Secretary of State would be constituted by equivalent conduct in the United Kingdom."

    Although the term is not used in the legislation, s 7(5) was identified in argument as reflecting the "principle of double criminality" to which reference already has been made.  In Riley v The Commonwealth[25], Deane J said of this "principle" that:

    "although not binding as a mandatory rule under international law, [it] has long been recognized as an accepted principle which is customarily observed by states in making and applying arrangements for the extradition of alleged offenders".

    The arrangement reflected in the certificate of the Secretary of State under s 6 and dated 2 October 1997 was concerned with a different matter.  This was identified in argument as the requirement of speciality found in s 6(4).

    [25](1985) 159 CLR 1 at 16.

59. The authority to proceed was given by a certificate of the Secretary of State also dated 2 October 1997.  It was addressed to the Chief Metropolitan Stipendiary Magistrate or other designated magistrate sitting at Bow Street, was expressed to be issued in pursuance of s 7 of the UK Act, and stated:

    "Now the Secretary of State hereby authorises you to proceed in conformity with the provisions of Part III of the [UK Act]."

    The authority to proceed dealt with the specification of United Kingdom offences which would be constituted by equivalent conduct in the United Kingdom, as required by s 7(5).  It did so by stating that the appellant was:

    "accused of conduct in the jurisdiction of the Government of Australia which appears to the Secretary of State to be conduct which, had it occurred in the United Kingdom, would have constituted offences of murder, false imprisonment, conspiracy to commit murder, conspiracy to commit blackmail, kidnap, conspiracy to kidnap, threats to kill, conspiracy to be knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, namely heroin". (emphasis added)

    The emphasised portion confirms that the Secretary was concerned to identify offences under United Kingdom law for the purposes of considering double criminality.  But it should be noted that the offences so identified included murder and kidnapping and were not limited to conspiracy counts.

    The committal proceedings

60. The proceedings before the magistrate continued over at least two days, and there was a long adjournment, apparently at the request of the appellant.  Representations were made to the magistrate by counsel for Australia and the appellant.  The court was empowered by s 9(8) of the UK Act to commit the appellant to custody or on bail, to await the decision of the Secretary of State as to his return to Australia and, if the Secretary so decided, to await his return to Australia.  The exercise of that power was conditioned by s 9(8) upon (i) the issue of an authority to proceed, a condition that had been met in the present case; and (ii) the satisfaction of the court that (a) the offences to which the authority to proceed related were extradition crimes within the meaning of s 2 of the UK Act, and (b) the evidence before the court "would be sufficient to make a case requiring an answer by [the appellant] if the proceedings were the summary trial of an information against him" (s 9(8)(a)).

61. The term "extradition crime", used in s 9(8), is concerned here with conduct in Australia; the authority to proceed had, in accordance with s 7(5), specified offences under the law of the United Kingdom which would be constituted by equivalent conduct in the United Kingdom.

62. The course of proceedings before the magistrate was determined by the submissions put by Australia's counsel.  In a four page opening note, it was stated that the appellant was "wanted by the Government of Australia for murder; kidnapping; conspiracy to commit murder; conspiracy to kidnap; blackmail; extortion with threat to kill; conspiracy to import a prohibited drug, namely heroin; and knowing involvement in the importation of heroin".  That statement tracked the identification of offences (i)‑(viii) in the Request and was speaking of the law in force in Victoria, not putative offences against United Kingdom law.

63. However, the opening note went on to list five offences which were described as "the draft charges upon which extradition is sought".  Four of these are conspiracy counts, none of them murder or kidnapping, and from the last of them it appears it is United Kingdom offences which are identified.  The last charge repeats from the authority to proceed the words "to be knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, namely heroin".  Thus, it appears that the statement in the opening note should be understood as if it had stated that what was set out were the draft charges under the law of the United Kingdom in respect of which the evidence would be sufficient to make a case requiring an answer by the appellant if the proceedings were the summary trial of an information against him (s 9(8)(a)).

64. The magistrate gave reasons dated 30 September 1998.  The issues which may arise in committal proceedings include the authentication of the documents supporting the request, the identity of the person whose extradition is sought, the limitations imposed by the authority to proceed, the identification of what answers the description of an "extradition crime", and the sufficiency of the evidence to make out a case to answer were the proceedings a summary trial of an information[26].  In the present case, the magistrate stated that the only factual issue he had to decide was whether the man in the dock was the person identified in the evidence.  The magistrate continued:

    "If he is so identified then he will have, subject to the representations advanced by the defence in relation to authentication and territorial jurisdiction, a case to answer, as there is the clearest evidence that 'PHUC' was a conspirator in each of the conspiracies."

    The magistrate concluded on this issue:

    "Mr Truong claims he was in London, signing on at the local benefit office, when 'PHUC' was in Australia or Hong Kong on certain material dates.  The purpose of the very long adjournment was to enable the defence to consider whether they wished to call any evidence in support of that alibi in these proceedings.  In the event the defence has decided not to call any evidence before me.  I am satisfied on the totality of all the evidence put before me that Mr Truong does have a case to answer on each of the conspiracy allegations." (emphasis added)

    The magistrate earlier in his reasons had noted the presence in the record of what he called "the speciality certificate".  He also dismissed objections to the authenticity of the documents provided by Australia.  The magistrate rejected a submission that Australia was seeking to establish extra-territorial offences within the meaning of par (b) of s 2(1) of the UK Act, rather than extradition crimes within the meaning of par (a) of s 2(1).  The magistrate said:

    "All the overt acts in each of the conspiracies were committed in Australia."

    [26]Halsbury's Laws of England, 4th ed reissue, vol 17(2), pars 1115, 1190.

65. The magistrate was satisfied that the conditions precedent to the exercise of the power of committal had been met.  In particular, the offences to which the authority to proceed related were extradition crimes and, on the issue of double criminality, the evidence provided would be sufficient to make a case requiring an answer by the appellant if the proceedings were a summary trial of an information against him.

66. But what were the Australian offences to which the authority related and in respect of which the requirement of double criminality was assessed?

67. The magistrate made an order under s 9(8) committing the appellant "to await the decision of the Secretary of State as to his return to Australia".  The magistrate also took the step indicated in s 9(9).  That provides:

    "If the court commits a person under subsection (8) above, it shall issue a certificate of the offence against the law of the United Kingdom which would be constituted by his conduct."

    That certificate, when read with the schedule, certifies that the conduct alleged within the jurisdiction of the Government of Australia would amount to four offences against the law of the United Kingdom.  The first three are respectively conspiracy to murder, conspiracy to kidnap and conspiracy to blackmail.  The fourth was conspiracy to be knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, namely heroin, the United Kingdom offence to which earlier reference has been made.  Murder and kidnapping were not mentioned.

68. The magistrate began his statement of reasons by saying:

    "The Government of Australia seeks the return of Mr Truong so that he can face trial in Australia in respect of linked allegations that he conspired with others to kidnap, blackmail, and murder.  There is a further conspiracy allegation relating to the importation of substantial quantities of heroin.  Originally there was a substantive charge of blackmail, but the Government on the second day of hearing abandoned this."

69. It is apparent from the tenor of the magistrate's reasons that he proceeded on the footing that Australia no longer pressed the Request in so far as it related to the offences of murder and kidnapping.

    The warrant

70. The next step in the procedures of Pt III of the UK Act is indicated in s 11 thereof.  Sub‑sections (1) and (2) state:

    "(1)     Where a person is committed under section 9 above, the court shall inform him in ordinary language of his right to make an application for habeas corpus, and shall forthwith give notice of the committal to the Secretary of State.

    (2)      A person committed shall not be returned –

    (a)in any case, until the expiration of the period of 15 days beginning with the day on which the order for his committal is made;

    (b)if an application for habeas corpus is made in his case, so long as proceedings on that application are pending."

71. The materials do not indicate the making of any habeas corpus application under s 11.  The final stage is detailed in s 12.  In particular s 12(1) states:

    "Where a person is committed under section 9 above and is not discharged by order of the High Court or the High Court of Justiciary, the Secretary of State may by warrant order him to be returned unless his return is prohibited, or prohibited for the time being, by this Act, or the Secretary of State decides under this section to make no such order in his case."

72. On 16 November 1998, one of Her Majesty's Parliamentary Under Secretaries of State issued a warrant addressed to the Governor of the Brixton Prison and other officers.  It concluded:

    "Now, therefore, it is hereby ordered that the fugitive be returned to Australia in respect of the offences for which he was committed by the Metropolitan Stipendiary Magistrate."

73. The operative words in the warrant are clear enough.  This is so notwithstanding apparent errors in the first two of the three preceding recitals of the warrant.  The first recital erroneously identifies the offences in the Request in terms of the United Kingdom offences indicated in the certificate under s 9(9) by the magistrate, dated 1 October 1998.  The error is compounded in the second recital, the effect of which is to state that the magistrate was satisfied that the evidence given before him would be sufficient to warrant the appellant's trial for these offences (ie, the United Kingdom offences, not the Australian offences in the Request) "if they had been committed in the Inner London area".

74. The certificate by the magistrate had fixed upon "the conduct alleged within the jurisdiction of the Government of Australia" and had stated a conclusion as to the corresponding offences against the law of the United Kingdom.  No consideration was given to double criminality in respect of the offences indicated in the Request of kidnapping and murder.  That reflected the basis upon which the magistrate had proceeded, namely that Australia now sought the return of the appellant so that he could face trial in respect of linked allegations of conspiracy.

    The speciality arrangement

75. The speciality arrangement under s 6(4) of the UK Act had limited the offences for which the appellant would be dealt with in Australia.  So far as is relevant, the limitation was to the offences in respect of which his return under the UK Act was ordered and, significantly, to offences disclosed by the facts in respect of which the return was ordered.  These "facts" had been detailed in the Tragardh affidavit to which reference has been made.  It had been conceded by the appellant in the proceeding before the magistrate "that there is prima facie evidence that LE Anh Tuan was kidnapped and murdered", leaving as the only factual issue the identification of the appellant with the person called "PHUC" in the evidence.

76. The result is that the subsequent trial and conviction of the appellant on the counts of murder and kidnapping did not breach the speciality arrangement between Australia and the United Kingdom made pursuant to s 6(4) of the UK Act.

    The jurisdiction of the Supreme Court

77. Section 85(1) of the Constitution Act 1975 (Vic) ("the Constitution Act") states:

    "Subject to this Act the Court shall have jurisdiction in or in relation to Victoria its dependencies and the areas adjacent thereto in all cases whatsoever and shall be the superior Court of Victoria with unlimited jurisdiction."

78. The jurisdiction of the Supreme Court of Victoria in respect of the trial and conviction of the appellant was founded upon his presence at that time in the State[27].  The following statement by McLelland A‑JA in Levinge v Director of Custodial Services[28] is in point:

    "[S]ubject to any statutory provision to the contrary, a person physically within New South Wales is amenable to criminal process in this State regardless of the circumstances in which he came or was brought here."

    To that statement, it should be added that the circumstance that an accused person was brought into a State by processes provided in federal law for extraditions to Australia does not render the subsequent State curial processes an exercise by the State court of federal jurisdiction.  That no federal jurisdiction is exercised merely by reason of those antecedent federal processes follows from the reasoning in Flaherty v Girgis[29] and Lipohar v The Queen[30].

    [27]Lipohar v The Queen (1999) 200 CLR 485 at 527 [106]; Levinge v Director of Custodial Services (1987) 9 NSWLR 546 at 556, 562, 567; R v Hartley [1978] 2 NZLR 199 at 215.

    [28](1987) 9 NSWLR 546 at 567.

    [29](1987) 162 CLR 574 at 598, 603, 609.

    [30](1999) 200 CLR 485 at 514 [69], 551 [166].

79. The appellant did not dispute these propositions, but fixed upon the reference by McLelland A‑JA in Levinge to a contrary statutory provision. He submits that (i) such a provision was made by federal law, in particular by s 42 of the Act; (ii) its effect was to deny the exercise in respect of his trial and conviction on non‑federal offences of what otherwise was the jurisdiction of the Supreme Court enjoyed under State law; and (iii) the consequence, in the events that happened upon his arraignment, not guilty plea, trial and conviction, is that his convictions and sentences are nullities and are vitiated by abuse of process. These submissions should be rejected. We turn to explain why this is so and why the appeal to this Court should be dismissed.

    The Australian legislation

80. It is convenient to begin with federal law, in particular Pt IV of the Act (ss 40‑44). The principal objects of the Act are specified in s 3. They are "to codify" the law relating to extradition from Australia (s 3(a)), "to facilitate" extradition requests by Australia (s 3(b)), and "to enable Australia to carry out its obligations under extradition treaties" (s 3(c)). Part IV furthers the objects in pars (b) and (c) of s 3 and is headed "EXTRADITION TO AUSTRALIA FROM OTHER COUNTRIES". Section 40 is "expressed in terms which assume the existence of a power in the Executive Government"[31] and the section restricts its exercise by stipulating that a request by Australia to a country such as the United Kingdom for the surrender of a person in relation to an offence of which the person is accused "shall only be made by or with the authority of the Attorney-General".

    [31]Oates v Attorney-General (Cth) (2003) 77 ALJR 980 at 984 [29]; 197 ALR 105 at 111.

81. Section 40 also speaks to offences against a law of Australia of which the person has been convicted. In such cases the objective of the extradition processes will be return to Australia to be dealt with according to law, including detention or further detention as required by Australian law. Where the person returned is accused, but not yet convicted, the objective is return to be dealt with by trial according to law. These various outcomes are encompassed in s 41 of the Act.

82. Section 41 states:

    "Where a person is surrendered to Australia in relation to an offence against a law of Australia of which the person is accused or of which the person has been convicted (whether or not pursuant to a request under section 40), the person shall be brought into Australia and delivered to the appropriate authorities to be dealt with according to law."

    This section applies to surrenders both pursuant to a request made under s 40 and otherwise. Further, as AB v The Queen[32] illustrates with reference to a treaty with the United States, an extradition treaty to which Australia is a party may make its own provisions for return to Australia with a particular speciality clause.  In that regard, important provision is made by s 11(1).  This states:

    "The regulations may:

    (a)state that this Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country, being a treaty a copy of which is set out in the regulations; or

    (b)make provision instead to the effect that this Act applies in relation to a specified extradition country subject to other limitations, conditions, exceptions or qualifications ..."

    [32](1999) 198 CLR 111 at 116‑117 [5], 144 [88].

83. In the present case, it was Pt II of the UK Act which stipulated restrictions on the return of the appellant to a relevant Commonwealth country such as Australia. This then, in due course, engaged s 42 of the Australian legislation. The Court was referred to no regulations made under s 11 which would vary the operation of s 42.

84. Section 42 provides:

    "Where an extraditable person in relation to Australia is surrendered to Australia by a country (other than New Zealand), the person shall not, unless he or she has left, or has had the opportunity of leaving, Australia or, in a case where the person was surrendered to Australia for a limited period, has been returned to the country:

    (a)be detained or tried in Australia for any offence that is alleged to have been committed, or was committed, before the surrender of the person, other than:

    (i)any offence in respect of which the person was surrendered or any other offence (being an offence for which the penalty is the same or is a shorter maximum period of imprisonment or other deprivation of liberty) of which the person could be convicted on proof of the conduct constituting any such offence; or

    (ii)any other offence in respect of which the country consents to the person being so detained or tried, as the case may be; or

    (b)be detained in Australia for the purposes of being surrendered to another country for trial or punishment for any offence that is alleged to have been committed, or was committed, before the surrender of the person to Australia, other than any other offence in respect of which the country that surrendered the person to Australia consents to the person being so detained and surrendered." (emphasis added)

85. The reference in s 42 to cases "where the person was surrendered to Australia for a limited period" directs attention to s 44. Surrender to Australia may be obtained upon an undertaking by the Attorney-General respecting trial in Australia for a particular offence or offences, return thereafter to the surrendering country and custody of the person while travelling to and from, and while in, Australia (s 44(1)). In such cases, the person "shall not be tried in Australia" for other offences, and shall not under federal, State or Territory law "be subject to any detention that would prevent the person being returned to the country pursuant to the undertaking" (s 44(1)).

86. Nothing in this case turns directly upon s 44, but the phrase "shall not be tried" appears there and in s 42. However, the text in s 42 differs, stating "shall not ... be detained or tried" (emphasis added). The reason for the additional words in s 42 is found in the scope of the two sections. Section 44 is limited to surrenders for trial, whilst s 42 applies also to surrenders of those already convicted, for the purpose of their detention in Australia. The present case concerns a surrender for trial.

87. It is par (a)(i) of s 42 which is of central importance for the present case. That provision deals distinctly with the offence for which there was surrender and "any other offence ... of which the person could be convicted on proof of the conduct constituting any such offence". It is not suggested that par (a)(ii) applied. The United Kingdom had not consented to the appellant being tried in respect of any offence not otherwise identified in par (a)(i)[33].  The phrase in par (a)(i) "the conduct constituting any such offence" is to be read as referring to the acts or omissions, or both, by virtue of which the offence is alleged to have been committed (s 10).

    [33]cf AB v The Queen (1999) 198 CLR 111 at 136 [67].

88. The heading to s 42 is "Speciality". The heading is not part of the statute (Acts Interpretation Act 1901 (Cth), s 13(3)) but, as s 15AB(2)(a) of that statute provides, it may be considered in ascertaining the meaning of s 42 (s 15AB(1)(b)). Paragraph (a)(i) of s 42 is inaptly drawn to protect the observance of the speciality arrangement with respect to the Request for the extradition of the appellant from the United Kingdom. The relevant clause in that arrangement speaks of offences "disclosed by the facts in respect of which [the appellant's] return was ordered". On the other hand, par (a)(i) fixes, more narrowly, upon the identification of murder and kidnapping as offences on which the appellant could be convicted on proof of the conduct constituting the conspiracy offences in the Request in respect of which the appellant was surrendered by the United Kingdom.

89. However, as was indicated in argument with respect to murder and conspiracy to murder, (a) it was easier to secure a conviction of murder on the McAuliffe basis because that involved contemplation of the possibility of intentional killing by the kidnappers, whilst the conspiracy would require proof of an agreement that the victim be killed, and, on the other hand, (b) the conspiracy charges did not require proving the death of the proposed victim. So, in one respect, the murder charge on which the appellant was convicted was less serious in terms of subjective criminality, but more serious in that it involved the death of the victim. Murder could not be an "other offence" within the second limb of s 42(a)(i) when put beside the offence of conspiracy to murder for which the appellant was returned. Similar reasoning applied to the charges of kidnapping and conspiracy to kidnap.

90. The second limb of s 42(a)(i) is to be read with the statutory requirement, of which it is part, that the appellant was only to be tried in Australia for certain offences alleged to have been committed before his surrender. It may be that, in the events that happened at trial, the jury must be taken to have convicted the appellant of conspiracies, where the agreements were fully performed. But the question posed by the second limb of s 42(a)(i) was addressed to the making by the accused of the plea upon arraignment, to which we will refer in a later section of these reasons. Hence the question was necessarily prospective and not to be answered in retrospect after the conduct of the trial. The question asked whether the appellant could be convicted of murder and kidnapping on proof of the conduct constituting the alleged conspiracies. In that setting, the reasoning in Savvas v The Queen[34] respecting the significance for sentencing of events relating to the implementation of a conspiracy is of no assistance.  Nor are cases such as R v Hoar[35] disapproving the charging of conspiracy where it is alleged that the substantive offence has been committed.

    [34](1995) 183 CLR 1.

    [35](1981) 148 CLR 32 at 38.

91. For tactical or other reasons which do not appear, the issue under the UK Act respecting "double criminality", which is a distinct matter under that statute from limitations of speciality, was so restricted in the committal proceedings as to limit the offences stipulated in the Request in response to which the appellant was surrendered.

92. To conclude that the appellant was not to be tried in Australia for the offences of murder and kidnapping by reason of the terms of s 42(a)(i) of the Act does not give effect to the evident purpose of that provision. That is the protection of the speciality[36]. Nevertheless, the language in which par (a)(i) is expressed is sufficiently intractable to gainsay the submissions for the respondent and the Attorney-General that (i) the offences of murder and kidnapping fell outside its terms and thus (ii) the prohibition imposed by s 42(a)(i) was not attracted in this case. As was emphasised in Re Bolton; Ex parte Beane[37], in such a case the function of the Court must be to give effect to the will of the legislature as expressed in the words of the statute.

    [36]AB v The Queen (1999) 198 CLR 111 at 128‑129 [41], 142 [82].

    [37](1987) 162 CLR 514 at 518, 520, 523, 532, 547. See also Mann v Carnell (1999) 201 CLR 1 at 45 [143]; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 95 [132].

    Further issues

93. However, it remains to determine (i) those institutions of government or individuals to which that prohibition in s 42 of the Act is directed; (ii) those who have a justiciable complaint in respect of non‑observance of the prohibition; and (iii) the effect of s 42 upon the general jurisdictional provision made for the Supreme Court by s 85(1) of the Constitution Act.

94. With respect to (iii), there may arise the questions (a) whether s 85(1) and its predecessors are included in the Constitution of the State of Victoria which is protected by s 106 of the Constitution; (b) whether, in any event, the power conferred by s 51(xxix) to make laws with respect to external affairs extends to support an operation of s 42 which withdraws from the Supreme Courts of the States the non‑federal jurisdiction they otherwise enjoy; and (c) particularly in relation to (b), the significance of the reasoning and certain observations in Re Tracey; Ex parte Ryan[38].

    [38](1989) 166 CLR 518.

    Abuse of process

95. None of these further issues necessarily would arise for decision if the alternative ground of abuse of process were made out.  That ground accepts the jurisdiction of the Supreme Court to try and convict the appellant.  But the argument is that in the exercise of that jurisdiction the prosecution should have been stayed, albeit, apparently, in the absence of any such application.  The result of that failure is said to have been a miscarriage of justice with which the Court of Appeal should have dealt.  These submissions, as indicated, have curious aspects.  But there is a short answer.

96. The power to stay prosecutions after extradition was recognised in this country in Levinge[39], in New Zealand in R v Hartley[40] and in the United Kingdom in R v Horseferry Road Magistrates' Court; Ex parte Bennett[41]. However, in the present case, it was for the appellant to make a case that there was a deliberate disregard by the Australian authorities and by the respondent prosecutor of the statutory requirements of s 42 or a knowing circumvention thereof[42].  The appellant did not attempt when he first raised the subject of abuse of process in the Court of Appeal to present any such case of deliberate misuse of authority.  This ground must fail.

    [39](1987) 9 NSWLR 546.

    [40][1978] 2 NZLR 199.

    [41][1994] 1 AC 42.

    [42]Levinge v Director of Custodial Services (1987) 9 NSWLR 546 at 564, 567.

170. Subject to the issue of the suggested invalidity of the federal law under the Constitution, no provision of State law could override, qualify or negate the obligations stated in s 42 of the Act. Thus the provisions of the State Crimes Act 1958 (Vic), expressing in general terms the procedures ordinarily to be followed in a plea to the arraignment in a trial conducted in the Supreme Court, could not override the explicit instruction contained in s 42 of the Act. Indeed, the State Act does not purport to do so.  Any attempt to do so would fail for constitutional reasons.  The federal law would prevail in accordance with s 109 of the Constitution – so long as it was valid.

171. Conclusion:  federal law prevails: The Act obliged the Supreme Court, its judges and other relevant public officials not to conduct a trial of the appellant whilst the "offences" named in the presentment did not conform to the "offences" in respect of which the appellant had been surrendered to Australia by the United Kingdom. The Act's requirements were clear. It addressed successively the prosecutor, the Supreme Court of Victoria, the trial judge and the Court of Appeal. There was no relevant exception. Its terms were not obeyed. Specifically, they were not obeyed in the appeal when the Court of Appeal was undoubtedly exercising federal jurisdiction and had the power, after trial, to ensure that the federal law was given effect to prevent any miscarriage of justice that was demonstrated. A miscarriage of justice may be of a legal, as well as of a factual (or merits) kind. There could be no greater legal miscarriage of justice than the conduct of a trial upon counts of a presentment that, in terms, contradicted the express command of federal law. It constitutes a fundamental error in the proceeding[124].  The Court of Appeal failed to correct this miscarriage of justice.  This Court, also exercising federal jurisdiction, must ensure that applicable federal law is obeyed.  It is not too late.  The matter is still within the judicature.

     [124]Wilde v The Queen (1988) 164 CLR 365 at 373; cf Penhallurick, "The Proviso in Criminal Appeals", (2003) 27 Melbourne University Law Review 800 at 806-811.

     The convictions and sentences must be quashed

172. I have already indicated that the failure of the prosecution to present the appellant for trial only on the "offence[s] in respect of which the person was surrendered"[125] is not a matter solely concerning the relations between the United Kingdom and Australia.  The appellant's personal rights and interests were directly affected. 

     [125]The Act, s 42(a)(i).

173. If the appellant's purported "trial" was conducted contrary to the Act, it was arguably not a "trial" at all. Certainly, it was seriously flawed. Its outcomes were not lawful verdicts, convictions or sentences. Subject to the Constitution, no provision of State law could make them so, contrary to the Act. Subject to the constitutional issues, therefore, the convictions and sentences must be quashed.

     The constitutional objections are meritless

174. It is difficult to take seriously the constitutional issues propounded in final resistance to this outcome. The notion that the Federal Parliament did not have the power to enact s 42 of the Act in the terms there appearing, either because of a lack of the relevant legislative power in s 51 of the Constitution, or because of supposed limitations expressed or implied elsewhere in the Constitution, borders on the fanciful.

175. The enactment of a law with respect to extradition of alleged offenders and, relevantly, the surrender of offenders by other countries to Australia for trial in this country, clearly falls within s 51(xxix) of the Constitution ("external affairs"). Amongst other things, it is a subject designed to give effect to extradition treaties. Such treaties were an established feature of the external affairs of nations long before the creation of the Commonwealth[126]. Other heads of federal legislative power specified in the Constitution are also relevant, including s 51(xxviii) ("the influx of criminals") and s 51(xxxix) ("the execution of any power"). Together these are sufficient to sustain the general validity of the Act.

     [126]Such as the successive treaties between Great Britain and the United States of America described in United States v Rauscher 119 US 407 at 410-412 (1886). See also the Extradition Act 1870 (UK), s 19.

176. The particular provision in s 42 of the Act, with regard to the international rule of speciality in extradition as there defined, is a valid law. It is a law upon an attribute of all national laws on the subject of extradition of which I am aware. Such a provision was included in the Extradition Act 1870 (UK).  That Act was in force when the Australian Constitution was written and adopted.  Similar provisions have been a feature of extradition laws and treaties ever since.

177. The argument that the attempt by s 42 of the Act to impose restrictions on State criminal trials is contrary to s 106 of the Constitution, as amounting to an invalid endeavour to control the conduct of such trials in a State Supreme Court, is equally meritless. It was based on a misunderstanding of the decision of this Court in Re Tracey; Ex parte Ryan[127].  Whatever that decision exactly stands for, it cannot cast doubt on the enactment by the Federal Parliament of a specific requirement of federal law designed to safeguard and enforce a clear federal, indeed national and international, interest.  Specifically, this is the interest of Australia in securing the reciprocal surrender of fugitive offenders and others found overseas who are accused of offences against the laws of Australia.  To defend that interest and to obtain the trial of such persons it is clearly within the power of the Federal Parliament to enact a law controlling the circumstances of the trial and commanding when such trials take place and when they shall not take place, conformably with the applicable treaties and other arrangements with foreign nations. 

     [127](1989) 166 CLR 518.

178. Here the Federal Parliament did not purport to interfere in the conduct of a trial by a State court.  It simply regulated when such a trial could, and could not, occur.  It did so in accordance with a well-established and international principle inherent in the comity of nations[128]. There was not, therefore, any disturbance of the arrangements of the Constitution concerning the government or a court of a State contrary to s 106 of the Constitution. It was no more than the enactment of a valid federal law in a matter of unquestionable federal concern regulating a trial in order to give effect to a principle of legitimate federal concern.

     [128]Barton v The Commonwealth (1974) 131 CLR 477 at 483; AB v The Queen (1999) 198 CLR 111 at 128-129 [41], 141-143 [81]-[84].

179. But for the Act and the system of international agreements to which it gives effect – including on the basis of the stated rule of speciality – there could normally be no trial of persons, such as the appellant, who are accused of offences in one country, but who are present in another. Unless such persons could be snatched or otherwise secured by trickery or force they would remain beyond the jurisdiction of Australian courts and prosecutors – federal, State and Territory alike. It is the Act that makes it possible for those courts and prosecutors – including in the Supreme Court of Victoria – to secure and exercise jurisdiction over the surrendered prisoner. But such jurisdiction is afforded upon conditions regulated by federal law. Important amongst these is the series of conditions, defensive of the rule of speciality, set out in s 42 of the Act. They are valid. They must be obeyed by all those to whom they are addressed – relevantly the prosecutor and the judges of the Supreme Court of Victoria at trial and on appeal.

     Conclusion and orders

180. The appellant has therefore made good his complaint that the rule of speciality, stated in s 42 of the Act, was breached by his trial. In the circumstances, he is not entitled to relief by way of a stay for abuse of process. He is, however, entitled to rely on his personal rights to which s 42 of the Act gives rise. Those rights are not "spent" merely because they were not raised in his plea at his trial. That would be an unacceptably artificial view of the applicable federal law, its language and its purpose.

181. The Supreme Court of Victoria, in conducting the trial of the appellant, was obliged to conform to the applicable federal law. This included s 42 of the Act. Its failure to do so in this case renders the resulting orders of that Court invalid and of no legal effect. Those orders must be quashed. The objections to the constitutional validity of s 42 of the Act are without merit. They should be rejected.

182. The appeal should be allowed. The orders of the Supreme Court of Victoria (Court of Appeal) should be set aside. In place of those orders, it should be ordered that leave to appeal be granted and the appeal to that Court be allowed and the appellant's convictions and sentences quashed. Any new trial must conform with the Act.

183. HAYNE J.   As the reasons of other members of the Court show, there are two questions in this appeal.  First, were the offences of kidnapping and murder, for which the appellant was tried and convicted in the Supreme Court of Victoria, offences of which the appellant "could be convicted on proof of the conduct constituting"[129] an offence in respect of which he was surrendered to Australia?  Secondly, if the offences of kidnapping and murder were not offences meeting that description, what consequence does that have for his conviction?  I would answer the first question, "Yes", and the second question, "In the circumstances of this case, it would have had no consequence for his conviction".

     [129]Extradition Act 1988 (Cth), s 42(a)(i).

184. The facts and circumstances which give rise to the appeal are set out in other reasons.  The relevant provisions of the Extradition Act 1988 (Cth) ("the Act") are also set out in those other reasons. I need not repeat any of that material except to the extent necessary to explain my reasons.

     The first question – speciality

185. The first question concerns what the Act calls "speciality". It may or may not be possible to discern some principles about speciality which find general acceptance internationally or find acceptance in a number of other jurisdictions[130]. The first question argued in this Court does not require the identification of principles of that kind. Nor does it require the construction or application of the law of the surrendering country. It requires the construction and application of the relevant provisions of Australian law – the Act.

     [130]R v Truong (2002) 5 VR 1 at 27‑34 [69]‑[79] per Ormiston JA.

186. As the reasons of Gummow and Callinan JJ demonstrate, it is possible to determine whether the appellant's trial for kidnapping and murder contravened the particular arrangements made with the United Kingdom for his surrender to Australia. For the reasons given by Gummow and Callinan JJ, the appellant's trial for those offences did not contravene those arrangements. But the question which the appellant agitated in the Court of Appeal, and in this Court, does not depend upon any internationally accepted principles about speciality. It does not depend upon the particular arrangements which were made between the governments of Australia and the United Kingdom. The question which the appellant agitated is a question about the construction and application of the Act and, in particular, s 42.

187. The specific question which arises concerns the application of that part of s 42(a)(i) which provides that, unless certain conditions are met, a person who is surrendered to Australia, by a country other than New Zealand, shall not be tried in Australia for any offence that is alleged to have been committed before the surrender other than, first, any offence in respect of which the person was surrendered, or, second, any other offence (for which the penalty is the same or a shorter maximum period of imprisonment) "of which the person could be convicted on proof of the conduct constituting any such offence" (emphasis added).

188. The reference to any "such" offence is a reference back to "any offence in respect of which the person was surrendered".  The offences for which the appellant was surrendered included conspiracy to kidnap and conspiracy to murder.  They did not include the offences of kidnapping or murder.  Could the appellant be convicted of kidnapping and murder on proof of the conduct constituting the offences in respect of which he was surrendered, namely, conspiracy to kidnap and conspiracy to murder?

189. In deciding that question it is necessary to take account of the provisions of s 10(2) of the Act that:

     "A reference in this Act to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed."

     Thus the question becomes:  would proof of the acts or omissions by virtue of which it was alleged that the appellant had committed the offences of conspiracy to kidnap and conspiracy to murder have proved that he committed kidnapping and murder?  That requires consideration of what was alleged against the appellant in support of the application in the United Kingdom for his extradition to Australia, not what was proved at his trial.  But it also requires recognition of two further matters:  first, the fact that particular conduct may reveal alternative legal bases upon which it may be found that a person committed a particular crime and, secondly, that the conduct may reveal the commission of more than one offence.

190. Where two offenders agree to commit an offence, and that offence is later committed, it is possible to describe the criminality of their conduct both as the offence of conspiracy and the substantive offence committed.  And where two offenders act in concert in pursuit of a common criminal design each may be found guilty of the offence that has been committed even if it is shown that each participated in its commission in some different way[131].  And again, persons may be guilty of an offence as an accessory before the fact or as a principal in the second degree who, being present at the scene of a crime, aids or abets its commission.

     [131]McAuliffe v The Queen (1995) 183 CLR 108; Gillard v The Queen (2003) 78 ALJR 64; 202 ALR 202.

191. The establishment of each of these different forms of criminal responsibility will require proof of the particular elements which go to establish that responsibility.  The elements of a charge of conspiracy differ from the elements to be established in proving joint criminal enterprise.  The elements of each of those offences differ from what must be established to make out a case that an accused person was an accessory before the fact or a principal in the second degree.

192. In the case of conspiracy, because the offence is complete upon the conspirators reaching an agreement to commit the crime, the charge may be proved without showing that the intended crime was committed.  By contrast, doctrines of complicity or common purpose only apply where the substantive offence has been committed.  In such a case a person will be held responsible for a crime, the commission of which was contemplated by the parties sharing a common purpose[132], even if there is no specific agreement that that crime be committed.  Doctrines of complicity or common purpose apply only where the crime is committed, but apply even if there is no positive agreement to commit that crime.

     [132]Gillard (2003) 78 ALJR 64 at 82‑83 [111]‑[112]; 202 ALR 202 at 226‑227.

193. In considering the application of s 42 of the Act, must attention be confined to those facts which sufficed to establish the offence for which the appellant was extradited (the two charges of conspiracy)?  That is, must attention be confined to those facts which, if proved, would have demonstrated the making of an agreement to kidnap and an agreement to kill, or may account be taken of the fact that at the time of extradition it was alleged that those agreements had been carried into effect?

194. In proving a case of conspiracy to commit an offence, it is open to the prosecution to prove, as one step in demonstrating the existence of the agreement, that the offence was in fact committed.  That is why there are many cases in which it would be open to charge both conspiracy to commit an offence and the substantive offence itself.  The courts have said that prosecutors should charge the substantive offence, where it is alleged that the offence was committed, rather than the offence of conspiracy[133] in order to avoid, among other things, the engagement of those evidentiary rules that attend the trial of a charge of conspiracy[134] and what is sometimes said to be the consequent advantages to the prosecution[135].  But the point of present relevance is that there are many cases where the criminality of a person's conduct may properly be reflected in a number of different charges.

     [133]R v Hoar (1981) 148 CLR 32 at 38 per Gibbs CJ, Mason, Aickin and Brennan JJ.

     [134]Tripodi v The Queen (1961) 104 CLR 1; Ahern v The Queen (1988) 165 CLR 87.

     [135]Howard's Criminal Law, 5th ed (1990) at 375‑381.

195. Is s 42 to be understood as directing attention only to that evidence which would suffice to establish the elements of the offence for which an accused was surrendered? Reading the section in that way would, of course, still give it useful work to do. It would permit prosecution for an offence wholly included in the offence for which a person was surrendered. But so to read the section does not appear to me to give full weight to the requirement of s 10(2) to consider the acts or omissions (of the particular accused in question) by virtue of which it is alleged that that person (the accused) committed the offence for which he or she was surrendered.

196. When the extradition of the appellant was sought, the material advanced in support of the request for extradition not only alleged that the appellant conspired with others that the victim should be kidnapped and murdered, but also alleged that the conspiracy had been carried into effect.  In those circumstances, the acts and omissions of the appellant, by virtue of which the offences of conspiracy to kidnap and conspiracy to murder were alleged to have been committed, included the acts of murder and kidnapping which it was alleged that the appellant had instigated.  That he could be shown to be party to a joint criminal enterprise to commit those crimes, by demonstrating that he not only contemplated the possibility that the other party to the joint criminal enterprise would carry out the agreement[136], but actively sought that end, required the proof of no other act or omission than, in the circumstances of this case, it was alleged that, if proved, would demonstrate his guilt of conspiracy to kidnap and conspiracy to murder.

     [136]McAuliffe (1995) 183 CLR 108; Gillard (2003) 78 ALJR 64; 202 ALR 202.

197. I agree with Gleeson CJ, McHugh and Heydon JJ that the trial of the appellant on charges of kidnapping and murder did not contravene s 42(a)(i).

198. Although that conclusion is sufficient to require the dismissal of the appeal, it is desirable to deal with the second question because, if the appellant's submissions about that second question were correct, further, constitutional questions would arise. For the reasons given by Gummow and Callinan JJ, the appellant's contention that his trial constituted an abuse of process of the court, if the offences of murder and kidnapping were not offences of which he could be convicted on proof of the conduct constituting an offence in respect of which he was surrendered, is a contention that should be rejected. The appellant entering a plea of not guilty, the Supreme Court had jurisdiction to try the issues which thus were joined, even if, contrary to my view, s 42 of the Act applied in the way now alleged by the appellant. And once the appellant, on being arraigned, pleaded not guilty he could not later, having been convicted, say that he should not have been tried. On arraignment he could have entered, as a special plea[137], the plea that his trial would contravene s 42 of the Act. Not having done so, even if the premise for this second contention had been made out, there would have been no miscarriage of justice warranting the intervention of the Court of Appeal[138].  Otherwise, in respect of this second question, I agree in the reasons of Gummow and Callinan JJ.

     [137]Crimes Act 1958 (Vic), s 390A.

     [138]Crimes Act, s 568(1).

199. The appeal should be dismissed.