Re Yau Leung Wong (Also Known As Peter Wong) v Robert Henry Evans; Bruce Wallace Johnston and the Director of Public Prosecutions [1985] FCA 129; (1985) 6 FCR 95 (19 April 1985)

FEDERAL COURT OF AUSTRALIA

Re: YAU LEUNG WONG (also known as PETER WONG)
And: ROBERT HENRY EVANS; BRUCE WALLACE JOHNSTON and THE DIRECTOR OF PUBLIC
PROSECUTIONS
No. NSW G 45 of 1985
Administrative Law - Extradition
[1985] FCA 129; (1985) 6 FCR 95

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart(1), Morling(1) and Neaves(1) JJ.

CATCHWORDS

Administrative Law - appeal - committal proceedings - application for review of decision of magistrate - appellant extradited to Australia from Hong Kong - whether the offences in respect of which the appellant had been committed for trial and upon which it was intended he would be tried were offences to which the requisition for surrender related - validity and effect of consent given by Governor of Hong Kong to appellants being tried on the charges formulated by the committing magistrate.

Administrative Decisions (Judicial Review) Act 1977

Customs Act 1901: sub-s. 4(1), ss. 233B, 235

Extradition (Commonwealth Countries) Act 1966: sub-s. 4(1), ss. 19, 20, 21, 22

Fugitive Offenders Act 1967 (U.K.)

Fugitive Offenders (Hong Kong) Order 1967

Extradition - Committal proceedings - Orders of review sought of decisions of magistrate - Three charges of conspiring with others to import heroin - Whether offences were offences to which the requisition for surrender related within s 22(a) of the Extradition (Commonwealth Countries) Act 1966 (Cth.) - Requisition accompanied by six warrants - Variation in, persons named as co-conspirators - Extradition (Commonwealth Countries) Act 1966 (Cth), ss 19, 20, 21, 22(a) - Extradition (Commonwealth Countries) Regulations (Cth), reg 4 - Customs Act 1901 (Cth), ss 4(1), 233B(1)(cb), 233B(2), 235. Following extradition from Hong Kong based on a requisition under s 20 of the Extradition (Commonwealth Countries) Act 1966 (the Act) stating that the appellant was accused of six offences of conspiring to import heroin into Australia and accompanied by six warrants giving further particulars including the relevant dates and names of co-conspirators, the appellant was committed to stand his trial on three charges of conspiring with certain named individuals to import heroin. In appealing against a decision refusing orders of review of the magistrate's decisions, the appellant argued that the magistrate's order for committal contravened s 22 of the Act as two of the three offences for which he was to stand trial were offences which were not referred to in the committal order of the Hong Kong magistrate.

Held: (1) In identifying the offences for which an extradited person may be detained or tried in Australia, s 22(a) is concerned not with the findings of the magistrate in the country from which the accused's surrender is sought by requisition under s 20 of the Act but with the offences to which that requisition relates as identified by an examination of the requisition document and where the offence is not sufficiently apparent therefrom, by reference to other relevant material, particularly the information or other document by which the accusation is made. Particulars of the offence are relevant only in so far as they are necessary to identify the act or omission upon which the statement of the offence is founded.

R. v. Boog (1974) 23 FLR 417, referred to.

(2) A variation in the co-conspirators named in the warrants accompanying the requisition and those named in the charges which resulted in the substitution of allegations of two conspiracies in place of a single conspiracy did not result in a contravention of s 22(a) of the Act as the crimes, the relevant dates and the unlawful purposes remained unchanged and the evidence before the respondent did not depart in any significant respect from that which was furnished to Hong Kong with the requisition for surrender.

Gerakiteys v. The Queen [1984] HCA 8; (1984) 58 ALJR 182, referred to.

(3) As it had not been disputed that the offence in the first charge was an offence to which the requisition related, the detention of the appellant after his committal could not be challenged and the argument that the subsequent consent of the Governor of Hong Kong to the detention under s 22(a)(ii) of the Act could not retrospectively validate a wrongful detention did not have to be considered.

HEARING

Sydney, 1985, April 12, 19. 19:4:1985
APPEAL

Appeal from a decision dismissing applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for orders of review of decisions of a magistrate to hear committal proceedings against the appellant.

M R Einfeld QC and P Roberts, for the appellant.

B T Sully QC and R Sutherland, for the respondents.
Cur adv vult

Solicitors for the appellant: Hanley Cameron Goold.

Solicitors for the respondents: Director of Public Prosecutions.
GFV

ORDER

1. The appeal be dismissed.

2. The appellant pay the costs of the respondents of this appeal.

NOTE: Settlement and entry of orders is dealt with in Order 36 of

the Federal Court Rules.

Appeal dismissed with costs

DECISION

On 12 April 1985 the Court dismissed with costs an appeal by Yau Leung Wong ("the appellant") against a judgment of the Court constituted by a single judge dismissing two applications by the appellant under the Administrative Decisions (Judicial Review) Act 1977. The Court then indicated that it would give reasons for its decision. We now set out those reasons.

2. The applications under the Administrative Decisions (Judicial Review) Act 1977 sought orders of review in respect of decisions made by Robert Henry Evans ("the first respondent") sitting as a stipendiary magistrate to hear committal proceedings against the appellant. Those proceedings resulted in the appellant being committed on 24 August 1984 to stand his trial for three offences against paragraph 233B(1)(cb) of the Customs Act 1901. That paragraph provides, inter alia, that any person who conspires with another person or other persons to import into Australia any prohibited imports to which section 233B applies is guilty of an offence. The prohibited imports to which section 233B applies are prohibited imports that are narcotic goods (sub-section 233B(2)). "Narcotic goods" include goods that consist of heroin (see the definitions of "Narcotic goods" and "Narcotic substance" in sub-section 4(1) and the substances specified in column 1 of Schedule VI). The maximum penalty for an offence against paragraph 233B(1)(cb) is imprisonment for a period of not less than twelve months (section 235).

3. The offences upon which the appellant was committed for trial are as follows -

(1) That between 1 August 1980 and 11 March
1981 he did conspire with David Matthew
Gregory and divers other persons to
import into Australia prohibited imports
to which section 233B of the Customs Act
1901 applies, to wit, narcotic goods
consisting of a quantity of heroin.

(2) That between about 26 June 1982 and
about 23 September 1983 at Sydney in the
State of New South Wales he did
conspire with Charles Losurdo, Anthony
William Cameron, Eric John Honeysett,
Samuel Fermia, Rifat Hussan Gogebakan
and divers other persons to import into
Australia prohibited imports to which
section 233B of the Customs Act 1901
applies, to wit, narcotic goods
consisting of a quantity of heroin.

(3) That between about 26 June 1982 and
about 23 September 1983 at Sydney in the
State of New South Wales and elsewhere
he did conspire with Anthony William
Cameron, Peter Michael, Mona Veronica
Mansfield and divers other persons to
import into Australia prohibited imports
to which section 233B of the Customs Act
1901 applies, to wit, narcotic goods
consisting of a quantity of heroin.

4. The proceedings which resulted in the appellant being committed for trial by the first respondent followed the appellant's extradition from the Colony of Hong Kong pursuant to the Extradition (Commonwealth Countries) Act 1966 and the corresponding provisions there in force.

5. The Extradition (Commonwealth Countries) Act 1966, as its short title suggests, is an Act relating to the extradition of criminals to and from Commonwealth countries. Division 3 of Part II of the Act (comprising sections 19 - 22 inclusive) makes provision for extradition from declared Commonwealth countries. The Colony of Hong Kong is declared to be a Commonwealth country to which that Part of the Act applies: see the definition of "declared Commonwealth country" in sub-section 4(1) of the Act and regulation 4 of the Extradition (Commonwealth Countries) Regulations.

6. Section 19 defines the expression "extraditable crime" where appearing in Division 3 to mean -

"an offence (wherever committed) against the law in
force in Australia or in a part of Australia the
maximum penalty for which is death or imprisonment
for a period of not less than twelve months, being
an offence that -

(a) is described in Schedule 1; or

(b) would be so described if the description
concerned contained a reference to any
intent or state of mind on the part of
the person committing the offence, or to
any circumstance of aggravation,
necessary to constitute the offence."

Items 32 and 34 in Schedule 1 are as follows -

"32. An offence against the law relating to
dangerous drugs, narcotics or psychotropic
substances."

"34. Aiding, abetting, counselling or procuring the
commission of, being an accessory before or after
the fact to, or attempting or conspiring to commit,
an offence described in a preceding item in this
Schedule."

7. It is not disputed that an offence against paragraph 233B(1)(cb) of the Customs Act 1901 is an "extraditable crime" as so defined.

8. Section 20 of the Extradition (Commonwealth Countries) Act 1966 provides -

"20. Where a person accused or convicted of an
extraditable crime is, or is suspected of being, in
or on his way to a declared Commonwealth country or
within the jurisdiction of, or of a part of, such a
country, the Attorney-General may make a requisition
to that country for the surrender of the person."

9. Upon surrender, the person may be brought into Australia and delivered to the proper authorities to be dealt with according to law (section 21). Section 22, so far as material, provides -

"22. Where a person accused or convicted of an
extradictable crime is surrendered by a declared
Commonwealth country, the person shall not, unless
he has been returned, or has had the opportunity of
returning, to that country -

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

(i) the offence to which the
requisition for his surrender
relates or any lesser offence of
which he could be convicted upon
proof of the facts on which that
requisition was based; or

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

(b) ..."

10. The relevant provisions in force in Hong Kong are to be found in the Fugitive Offenders Act 1967 of the United Kingdom in the form in which that Act is extended to the Colony of Hong Kong by the Fugitive Offenders (Hong Kong) Order 1967. Under the Act as so extended a person found in Hong Kong who is accused of a "relevant offence" in a designated Commonwealth country (an expression which includes Australia) may be arrested and returned to that country, as provided in the Act (section 1). For the purposes of the Act an offence is a relevant offence if, in terms of sub-section 3(1) -

"(a) in the case of an offence against the
law of a designated Commonwealth country
... , it is an offence which, however
described in that law, falls within any
of the descriptions set out in Schedule
1 to this Act, and is punishable under
that law with imprisonment for a term of
twelve months or any greater punishment;

(b) ... ; and

(c) in any case, the act or omission
constituting the offence, or the
equivalent act or omission, would
constitute an offence against the law of
Hong Kong if it took place within Hong
Kong ..."

The description of offences set out in Schedule 1 to the Act includes an offence against the law relating to dangerous drugs or narcotics (Item 25). That description is to be taken to include the offence of conspiring to commit such an offence (sub-section 3(3)).

11. The procedures to be followed to secure an order for the return of an accused person to a designated Commonwealth country are prescribed. Subject to the provisions relating to the issue of provisional warrants to which it is unnecessary to refer, the procedures begin with the receipt by the Governor of Hong Kong of a request from the designated Commonwealth country (sub-section 5(1)). That request must be accompanied by a warrant for the person's arrest issued in the requesting country, together with particulars of the person whose return is requested and of the facts upon which and the law under which he is accused and evidence sufficient to justify the issue of a warrant for his arrest (sub-section 5(2)). The Governor may then issue an authority to proceed (sub-section 5(3)). A warrant may then issue for the person's arrest (section 6). Upon arrest, the person is brought before a court of committal consisting of a permanent magistrate, that is a person appointed to be a permanent magistrate under the Magistrates Ordinance (sub-section 7(1)). Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any evidence tendered in support of the request for the return of that person or on behalf of that person, that the offence to which the authority relates is a relevant offence and is further satisfied that the evidence would be sufficient to warrant his trial for that offence if it had been committed within the jursidiction of the court, the court is required, unless committal is prohibited by any other provision of the Act, to commit him to custody to await his return to the requesting country (sub-section 7(4)). Where a person is committed to await his return and is not discharged upon an application for habeas corpus to the Supreme Court of Hong Kong, the Governor may by warrant order him to be returned to the country by which the request for his return was made unless the return of that person is prohibited, or prohibited for the time being, under the Act or the Governor decides under section 9 to make no such order in his case (sub-section 9(1)).

12. On 13 January 1984 the Attorney-General, pursuant to section 20 of the Extradition (Commonwealth Countries) Act 1966 signed a document headed "Requisition for the Extradition of Yau Leung Wong (commonly known as Peter Wong) from Hong Kong to Australia". The document was in the following terms -

"I, GARETH JOHN EVANS, the Attorney-General of
Australia, on behalf of the Government
of Australia, hereby request that Yau Leung Wong
(commonly known as Peter Wong), who is now in
Hong Kong and is accused in the State of New
South Wales of six offences of conspiracy to
import into Australia prohibited imports (heroin)
contrary to paragraph 233B(1)(cb) of the Customs
Act 1901 be returned to Australia to be dealt
with according to law."

13. At the time that document was signed informations had been laid charging the appellant with six offences against paragraph 233B(1)(cb) of the Customs Act 1901 and first instance warrants had been issued for his apprehension to answer those charges. Each charge alleged that between specified dates the appellant had conspired with certain named individuals and with divers other persons to import into Australia prohibited imports to which section 233B applied, to wit, narcotic goods consisting of a quantity of heroin. For present purposes it is unnecessary to set out the text of the six charges: it is sufficient to record, in relation to each charge, the dates between which the offence was alleged to have been committed and the surnames of the individuals with whom the appellant was alleged to have conspired. Those details, identified by reference to the numbers which the respective warrants bear, are as follows -

(a) Warrant No.55 of 1982: between 1 August
1980 and 23 March 1981: Gregory,
Hitchcock, Heaney.

(b) Warrant No.335 of 1983: between 26 June
1982 and 9 September 1983: Losurdo,
Gogebakan, Cameron, Michael, Muir,
Mansfield.

(c) Warrant No.390 of 1983: between about
26 June 1982 and about 23 September
1983: Losurdo, Gogebakan, Cameron,
Fermia, Michael, Muir, Mansfield.

(d) Warrant No.391 of 1983: between 26 June
1983 and about 23 September 1983:
Losurdo, Gogebakan, Cameron, Fermia.

(e) Warrant No.392 of 1983: between about 1
December 1982 and about 23 September
1983: Cameron, Michael, Muir,
Mansfield.

(f) Warrant No.393 of 1983: between about 1
December 1982 and about 23 September
1983: Mansfield.

14. Upon the receipt in Hong Kong of the requisition by the Attorney-General together with copies of the warrants referred to above and the evidence by which the request was supported, an authority to proceed was issued by the Governor of Hong Kong, a warrant for the arrest of the appellant was issued and proceedings were taken before a court of committal constituted by Mr I.T. Heath, a permanent magistrate in that Colony. At the conclusion of the hearing Mr Heath signed a document which, in terms, ordered that the appellant be extradited to Australia on the charges set out in Warrant No.55 of 1982 and Warrant No.390 of 1983 and not on the charges set out in Warrants Nos.335, 391, 392 and 393 of 1983. Having regard to the provisions of sub-section 9(4) of the Fugitive Offenders Act 1967 as extended to Hong Kong, the order is to be read as an order that the appellant be committed to custody to await his return to Australia: the power to order extradition is a power residing in the Governor. In giving his reasons for reaching his conclusion, Mr Heath stated that he found that a prima facie case had been made out in respect of the charge set out in Warrant No.55 of 1982. In relation to the other charges he said that he found there was ample and compelling evidence that the appellant was in a conspiratorial relationship with all the persons named in the charge set out in Warrant No.390 of 1983 and that the divers other persons referred to in that charge could well embrace the other persons named in the remaining charges. This statement is somewhat difficult to follow as there are no persons named in those other charges who are not named in the charge set out in Warrant No.390 of 1983. Perhaps what the learned magistrate meant to convey was that the reference in each of the remaining charges to divers other persons could include the additional persons named in the charge set out in Warrant No.390 of 1983 who are not specifically named in that other charge. Mr Heath expressed himself as regarding those remaining charges as being "but permutations of the same characters with shorter times put on the period of the conspiracy". He said that the conspiracy evidence "was put to the Court in a blanket way, and without particularity by the Crown, pointing to proof warrant by warrant."

15. On 23 March 1984 a warrant committing the appellant to custody was issued by Mr Heath. The warrant reproduces the offences set out in Warrant No.55 of 1982 and Warrant No.390 of 1983 and states, in respect of each offence, that such conduct, if committed with the jurisdiction of the court in Hong Kong, would be an offence under sections 4 and 39 of the Dangerous Drug Ordinance Cap.134 of the laws of Hong Kong. The warrant further states that the offences are "relevant offences" as defined in the Fugitive Offenders Act 1967 (U.K.) in its application to Hong Kong and that the evidence given would be sufficient to warrant the appellant's trial for those offences if they had been committed in Hong Kong.

16. On 11 April 1984 the Deputy to the Governor of Hong Kong signed a warrant ordering that the appellant be returned to Australia "in respect of the offences for which he was committed to custody by the Permanent Magistrate".

17. Following the appellant's return to Australia the committal proceedings to which reference has already been made were heard by the first respondent with the result that the appellant was, on 24 August 1984, committed for trial on the three offences the text of which has been set out. The appellant was refused bail.

18. On 19 October 1984 the Governor of Hong Kong, at the request of the Australian authorities, signed a document by which he consented "to the prosecution of" the appellant in relation to what were referred to as "those requested offences". Those offences were the offences upon which the appellant had, on 24 August 1984, been committed to stand his trial.

19. The learned primary Judge before whom the appellant's applications under the Administrative Decisions (Judicial Review) Act 1977 came for hearing, in giving his reasons for dismissing those applications, said that the major question argued before him was whether the detention and proposed trial of the appellant upon the charges upon which he had been committed for trial involved a contravention of the provisions of paragraph (a) of section 22 of the Extradition (Commonwealth Countries) Act 1966.

20. His Honour concluded that the requisition signed by the Attorney-General on 13 January 1984, by referring to the offences with which the appellant had been charged as offences of conspiracy to import prohibited imports (heroin) contrary to paragraph 233B(1)(cb) of the Customs Act 1901 without particulars as to the co-conspirators or the dates between which the unlawful agreement was in existence, sufficiently identified the offences as extraditable crimes for the purposes of Division 3 of Part II of the Extradition (Commonwealth Countries) Act 1966. After noting that further particulars of the alleged offences were required to enable the necessary proceedings to be taken in Hong Kong his Honour continued -

"However, two points should be noted. First,
although the matter turns upon the Hong Kong -
rather than the Australian - legislation, it seems
that the Hong Kong magistrate is not bound by those
particulars, in the sense that a variance between
the particulars and the evidence will not matter
provided that it can be seen that the conduct
disclosed by the evidence is conduct constituting
the extraditable crime, as generally defined: cf.
Commonwealth of Australia v. Riley and others (Full
Court, 11 December 1984, not yet reported, at
pp 51-52). Secondly, regardless of the terms of
the Hong Kong legislation, the relevant comparison
for the purposes of Australian law is not between
the offence as found by the Hong Kong magistrate
and the offence as proposed to be pleaded in a
prosecution in Australia but between "the offence
to which the requisition for his surrender relates"
and the offence proposed to be prosecuted in
Australia. Subject to s.22(a)(ii), Australia is
bound by its nomination of the offence on the
requisition for surrender; it is not bound by the
categorization, description or particulars of the
offence adopted by the magistrate in the requested
country."

21. The relevant inquiry in his Honour's view was whether the offences in respect of which the appellant had been committed for trial, and upon which it was intended he would be tried, were offences to which the requisition for surrender related. That question, his Honour concluded, should be answered in the affirmative whether the offences in respect of which the requisition was made were to be found in the terms of the requisition document itself or in the more specific terms to be found in the warrants which accompanied that requisition. His Honour was of the opinion that the difference between the material submitted to the Government of Hong Kong by the Attorney-General and the offences identified by the first respondent lay not in the identification of the relevant extraditable crimes or offences, but merely in the particulars of those offences.

22. His Honour further held that the document signed by the Governor of Hong Kong on 19 October 1984 was effective as a consent, within the meaning of section 22 of the Extradition (Commonwealth Countries) Act 1966, to the appellant being tried for the offences on which he had been committed for trial. While his Honour thought that the consent was not effective to authorise retrospectively the order made by the first respondent on 24 August 1984 for the appellant's detention, he concluded that it would be an erroneous exercise of the Court's discretion for it to grant relief under the Administrative Decisions (Judicial Review) Act 1977 upon that ground.

23. A question was also argued before the primary Judge as to the sufficiency of the evidence to support the finding of the first respondent in relation to the first of the offences on which the appellant was committed for trial. His Honour declined to entertain that argument and, as the question was not agitated on the hearing of the appeal, we need say no more about it.

24. On the hearing of the appeal it was submitted on behalf of the appellant that, by virtue of section 22 of the Extradition (Commonwealth Countries) Act 1966, the appellant could not lawfully be detained or tried in Australia for any offence in relation to which no prima facie case of guilt had been made out before Mr Heath in Hong Kong. It was submitted that Mr Heath had made a positive finding that no prima facie case of guilt had been made out in respect of four of the six offences referred to in the requisition for the surrender of the appellant signed by the Attorney-General. The consequence of the order made by Mr Heath that the appellant be committed to custody to await his return to Australia in respect of two only of those offences was, according to the argument, to limit the offences in respect of which it was open to the first respondent to commit the appellant for trial. The decision of the first respondent was, it was argued, to commit the appellant for trial on offences other than those referred to in the order made by Mr Heath with the consequence that, as the appellant had not been returned, and had not had the opportunity of returning, to Hong Kong, the order for committal was made without authority and the detention of the appellant unlawful.

25. In our opinion the submission proceeds upon a misconception of the true meaning and effect of section 22 of the Extradition (Commonwealth Countries) Act 1966 and of the function which the laws of Hong Kong reposed in Mr Heath.

26. In relation to the latter, it was no part of Mr Heath's function to find whether the evidence presented to him in support of the requisition for the surrender of the appellant was sufficient to establish a prima facie case of guilt of the offences under section 233B(1)(cb) of the Customs Act 1901 referred to in the warrants issued in Australia. He was not required to consider Australian law and he did not do so. His function was to consider whether the offences alleged against the appellant were relevant offences under the Fugitive Offenders Act 1967 (U.K.) in its application to Hong Kong, including the question whether the act or omissions constituting those offences, or the equivalent acts or omissions, would constitute an offence against the laws of Hong Kong if they had taken place in Hong Kong. His function extended to examining the evidence before him to determine whether it would be sufficient to warrant the appellant's trial for the offences alleged if they had been committed within the jurisdiction of the court in Hong Kong. To each of the questions so raised he gave an affirmative answer. We should add, in view of the argument put to us by counsel for the appellant, that we are unable to regard what Mr Heath did as amounting to a positive finding that no prima facie case had been made out in relation to the charges other than those set out in Warrant No.55 of 1982 and Warrant No.390 of 1983.

27. In relation to the misconception of the true meaning and effect of section 22 of the Extradition (Commonwealth Countries) Act 1966 inherent in the submission of counsel for the appellant, s. 22 does not concern itself with the findings of the magistrate in the requested country. Its point of reference is expressly stated to be the offence to which the requisition made under section 20 for the surrender of the accused person relates. The identification of that offence may sufficiently appear from an examination of the requisition document itself but, if not, reference will need to be made to other relevant material. As the Act requires, as a condition precedent to the making of a requisition, that the person shall have been accused of an extraditable crime, one obvious source, if not the best source, is the statement of the offence in the information or other document by which that accusation is made. But it must not be forgotten that it is the offence which must be identified, not the particulars of the offence except in so far as such particulars are necessary to identify the act or omission upon which the statement of the offence is founded. The question whether the offence for which the person is to be tried is the same as the offence to which the requisition for his surrender relates is, in the words of Fox J. in Reg. v. Boog (1974) 23 FLR 417 at p 420, "a matter of degree, and of judgment; no precise dividing line can be defined."

28. Turning then to the first of the charges upon which the appellant has been committed for trial, the only difference between that charge and the charge set out in Warrant No.55 of 1982 is that Hitchcock and Heaney are not named as individuals with whom the appellant is alleged to have conspired. Otherwise the charges are identical in all respects. It was all but conceded by counsel for the appellant, correctly in our opinion, that the omission of the two names did not result in any significant divergence from the charge to which the requisition for the surrender of the appellant relates.

29. The second of the charges upon which the appellant has been committed for trial follows closely the charge set out in Warrant No.390 of 1983. The same crime is alleged and the dates during which the conspiracy is alleged to have taken place are identical. The difference is that in the charge set out in the warrant the appellant is alleged to have conspired with seven named individuals - Losurdo, Gogebakan, Cameron, Fermia, Michael, Muir and Mansfield and with divers other persons. The charge on which the appellant has been committed for trial omits the references to Michael, Muir and Mansfield and inserts a reference to Honeysett.

30. The third of the charges upon which the appellant has been committed for trial also follows closely the charge set out in Warrant No.390 of 1983, the only difference being that of the seven named individuals (other than the appellant) referred to in that charge, the names of Losurdo, Gogebakan, Fermia and Muir have been omitted in the formulation of the charge by the first respondent.

31. In support of the argument that there is a fatal divergence between the second and third charges on which the appellant has been committed for trial and the offences to which the requisition relates, counsel for the appellant relied upon what was said by the High Court in Gerakiteys v. The Queen [1984] HCA 8; (1984) 58 ALJR 182 and, in particular, upon the following passage in the judgment of Deane J. at pp 189-190:

"'A count in conspiracy must comply with the
general rule of charging one offence only ... Where
a count in conspiracy charges, as it should do,
only one conspiracy to effect some one or more
improper purposes, the only issue before the jury
under that count is whether all or any of the
accused are guilty of the conspiracy alleged': per
Jordan C.J., R. v. Ongley (1940) 57 WN (NSW)
116 at 117. Where the single conspiracy charged is
to effect more than one unlawful purpose, the jury
may find a single conspiracy to effect some only of
those purposes: see O'Connell v. The Queen [1844] EngR 880; (1844)
11 Cl & F 155; 8 ER 1061. The jury cannot,
however, find two conspiracies under a count which
charges one only nor find an accused guilty of a
conspiracy which is a distinct and different
conspiracy to that which the count alleges: R v.
Ongley at 117. In particular, where a single
conspiracy has been charged, it is not open to the
jury to find the accused guilty of a consequential
but different conspiracy which flowed from that
which is the subject of the actual charge.

The gist of the crime of conspiracy lies in the
making of the relevant agreement. It is the
subject matter and purpose of the agreement which
determines whether it is criminally unlawful.
There must be at least two parties to a conspiracy.
That apart however, the number and identity of the
co-conspirators may be inessential to the
identification or proof of the particular
conspiracy with which an accused is charged.
Indeed, as a matter of common law principle, an
accused may be convicted of conspiring 'with a
person or persons unknown' to commit an unlawful
act: see Archbold's Pleading, Evidence and
Practice in Criminal Cases (41st ed., 1982),
p 2057; R v. Howes (1971) 2 SASR 293; R v.
Anthony (1965) 2 QB 189 at 192-193. More in
point to the present case, s.393 of the Crimes Act
1900 (N.S.W.) expressly provides that an accused
'may be charged separately, in any count, as having
conspired with divers persons, of whom it shall be
sufficient to name one only ... and may be
convicted on such count upon proof of his having
unlawfully conspired for the purpose therein
alleged with any one such person'. On the other
hand, the number and the identity of the
co-conspirators may be relevant and, conceivably,
even essential to both the identification of the
subject matter of the conspiracy which is alleged
against an accused and to the actual proof of guilt
of that conspiracy. For example, the question
whether the intended perpetrator of an unlawful act
is actually a party to a conspiracy is likely to be
of critical importance on the question whether the
conspiracy is a conspiracy to commit the act as
distinct from a conspiracy to procure its
commission by another. In such a case, s.393 of
the Crimes Act 1900 (N.S.W.) in no way alters the
established common law position that a person
cannot be found guilty of a distinct and different
conspiracy to that which the count in the
indictment alleges."

32. That case was concerned with questions quite different from those which arise in the present case. Its concern was with the consequences which should follow the quashing of a verdict of guilty returned by a jury on a count in an indictment alleging a single conspiracy between a number of named individuals and divers other persons to effect a specified unlawful purpose where the evidence was not sufficient to support such a conspiracy but was sufficient to found a verdict of guilty upon a number of other conspiracies. Those conspiracies were based on agreements made between various combinations of the persons named in the count on which the appellant had been arraigned, each conspiracy being to effect a different unlawful purpose, each such purpose being a different purpose from the unlawful purpose in respect of which the verdict of guilty had been returned.

33. There is nothing in that case which, in our view, compels us to hold that in this case the first respondent was precluded by paragraph (a) of section 22 of the Extradition (Commonwealth Countries) Act 1966 from giving effect to his evaluation of the evidence before him which, it is admitted, did not depart in any significant respect from that which was furnished to Hong Kong with the requisition made for the appellant's surrender. The effect of the first respondent's decision is to substitute allegations of two conspiracies in place of the single conspiracy alleged in Warrant No.55 of 1982 but a comparison of the charges discloses that the crimes are the same, the offences are the same and the unlawful purpose alleged is the same. All that the first respondent has done is to vary the particulars of those alleged to be co-conspirators with the appellant - the original seven have been divided into two groups, one of five and the other of three, one individual being a member of each group.

34. While the very real protection which is afforded by section 22 of the Extradition (Commonwealth Countries) Act 1966 to an accused person who has been returned to this country to stand his trial for offences alleged to have been committed by him before his surrender is not to be eroded by other than a strict approach to the question of identifying the offence or offences to which the requisition for his surrender relates, we are not satisfied that, in the particular circumstances of this case, the appellant has established that the second and third charges on which he has been committed for trial are offences other than those to which that requisition for his surrender relates.

35. In any event, if contrary to the opinion we have expressed, it were thought that the requirements of paragraph (a) of section 22 of the Extradition (Commonwealth Countries) Act 1966 is an obstacle to the appellant's trial on the second and third charges, we are satisfied that that obstacle has been removed by the Governor of Hong Kong consenting to his trial on those charges.

36. Counsel for the appellant argued that that consent was ineffective because the Governor, in terms, consents to the prosecution of the appellant, not to his detention and trial, the expressions used in paragraph (a) of section 22. The question, however, is not whether the language used in the document of consent is equivalent to that used in the paragraph. The question is whether, considering the document as a whole, it may fairly be said that consent to the appellant's trial on those two charges has been given. Having regard to the fact that, on its face, it purports to have been issued pursuant to a request seeking consent pursuant to paragraph (a) of section 22 for the prosecution of the appellant on the charges on which he had been committed for trial, we are convinced that the question admits only of an affirmative answer.

37. It was also submitted on behalf of the appellant that the consent could not operate retroactively to support the appellant's detention between the date of the first respondent's decision and the giving of the consent. The short answer to this submission is that there is no necessity to rely on the consent to support the appellant's detention during that period. That detention was sufficiently authorised by the decision of the first respondent to commit the appellant for trial on the first of the charges, a decision as to the validity of which there can be no doubt.

38. For the reasons set out above we were of opinion that the appeal should be dismissed with costs and we so ordered.