United States of America v Griffiths [2004] FCA 879 (7 July 2004)

FEDERAL COURT OF AUSTRALIA

United States of America v Griffiths [2004] FCA 879

EXTRADITION – double criminality test – indictments for conspiracy to breach copyright and aiding and abetting breach of copyright in the United States of America

EXTRADITION – duly authenticated statement in writing – sufficiency of written statement and supporting documents

Copyright Act 1968 (Cth) ss 35 & 132
Criminal Code Act 1995 (Cth) ss 11.2 – 11.5
Extradition Act 1988 (Cth) ss 10, 16, 19, 21, 22,
Treaty on Extradition Between Australia and the United States of America Art 1(4)
Extradition (United States of America) Regulations reg 4

Cabal v United Mexican States (2002) 186 ALR 188 referred to
De Bruyn v Republic of South Africa [1999] FCA 1344; (1999) 96 FCR 290 referred to
Director of Public Prosecutions v Doot [1973] AC 807 referred to
Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 referred to
Dutton v O’Shane [2003] FCAFC 195; (2003) 200 ALR 710 applied
Gerakiteys v The Queen [1984] HCA 8; (1983-84) 153 CLR 317 referred to
Liangsiriprasert v United States [1991] 1 AC 225 referred to
Linhart v Elms (1988) 81 ALR 557 applied
Lipohar v The Queen [1999] HCA 65; (1999-2000) 200 CLR 485 referred to
McDade v United Kingdom [1999] FCA 1868 referred to
Regina v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [1998] UKHL 41; [2000] 1 AC 61 referred to
Regina v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Government of USA [2000] 2 AC 216 referred to
Republic of South Africa v Dutton (1997) 77 FCR 128 referred to
Riley v The Commonwealth [1985] HCA 82; (1985) 159 CLR 1 referred to
Schoenmakers v Director of Public Prosecutions (1991) 108 FLR 457 referred to
The State (Furlong) v Kelly [1971] IR 132 referred to
Todhunter v United States of America (1995) 57 FCR 70 referred to
Wiest v Director of Public Prosecutions (1988) 23 FCR 472 referred to
Zoeller v Republic of Germany (1989) 23 FCR 282 referred to

J Lahore & WA Rothnie, Copyrights and Designs Butterworths Australia, 2003, (Looseleaf edn)

UNITED STATES OF AMERICA v HEW RAYMOND GRIFFITHS AND DANIEL REISS
N 503 of 2004

JACOBSON J
7 JULY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 503 of 2004

BETWEEN:	UNITED STATES OF AMERICA APPLICANT
AND:	HEW RAYMOND GRIFFITHS FIRST RESPONDENT DANIEL REISS SECOND RESPONDENT

JUDGE:	JACOBSON J
DATE:	7 JULY 2004
PLACE:	SYDNEY

1 On 12 March 2003 a Grand Jury sitting in the Eastern District of Virginia returned an indictment charging the first respondent ("Mr Griffiths") with two counts of violation of the laws of the applicant ("the United States"). The first count charged Mr Griffiths with conspiracy to infringe copyright. The second count charged him with copyright infringement either as a principal or as an aider and abetter. Each count charges that the offence took place in the United States.

2 The particulars to the count of conspiracy state that Mr Griffiths was a leader of an internet software piracy organisation which was devoted to the unauthorised reproduction and distribution of copyright software over the Internet. Mr Griffiths is not alleged to have engaged in the conspiracy for financial gain. Rather, his reward, and the reward of his alleged co-conspirators, is said to have come from their access to the pirated software games, movies and music which were available to members of the organisation.

3 In June 2003 the United States requested that Mr Griffiths be extradited. A notice under s 16(1) of the Extradition Act 1988 (Cth) ("the Act") was signed by the Minister and a warrant was subsequently issued for Mr Griffiths’ arrest. However, on 25 March 2004 the second respondent ("the Magistrate") determined, pursuant to s 19(10) of the Act, that
Mr Griffiths was not eligible for surrender to the United States in relation to the extradition offences with which he has been charged.

4 The United States seeks a review of the Magistrate’s order under s 21(1) of the Act. The orders which the United States seeks include an order under s 21(2)(b) quashing the Magistrate’s order. The United States also seeks a direction under s 21(2)(b)(ii) that the Magistrate order Mr Griffiths to be committed to prison to await surrender or, alternatively, his release, if the Attorney-General so determines pursuant to s 22(5) of the Act.

5 The review of the Magistrate’s decision is a rehearing under which I am authorised to reach my own decision as to whether Mr Griffiths is eligible for surrender on the basis of material which was before the Magistrate; see Republic of South Africa v Dutton (1997) 77 FCR 128 at 136 (Hill J).

6 The principal issues before me are whether the double criminality requirement stated in s 19(2)(c) of the Act is satisfied and whether there was produced to the Magistrate in accordance with s 19(3)(c)(ii) an authenticated statement in writing setting out the conduct constituting the offences.

7 Although the reasons of the learned Magistrate are not entirely clear, it is plain that he was not satisfied that when the transposition process required by s 19(2)(c) is undertaken the conduct constituting the offences of conspiracy to infringe copyright, or copyright infringement or aiding and abetting copyright infringement would have constituted an extradition offence in relation to that part of Australia where the proceedings were conducted. That is to say, he was not satisfied that the conduct would have constituted offences under the law of New South Wales.

8 Senior counsel for the United States submits that the Magistrate misdirected himself on that issue and that it is plain that the Magistrate ought to have been satisfied of the equivalence required by s 19(2)(c).

9 The Magistrate was satisfied that the material which was put before him met the requirements of s 19(3)(c)(ii) of a statement in writing constituting the offences under the laws of the United States. However, counsel for Mr Griffiths submits that the material does not conform with the requirements of that sub-section established by the authorities.

10 The legislative scheme established by the Act was described by a Full Court in Todhunter v United States of America (1995) 57 FCR 70 at 73-77. As their Honours observed at 74, the scheme contemplates four separate stages in the extradition process. These proceedings are concerned with the third stage, namely the determination by a magistrate of eligibility for surrender.

11 Proceedings to determine whether a person is eligible for surrender are conducted by a magistrate in accordance with s 19(1) of the Act.

12 Section 19(2) provides that a person is only eligible for surrender in relation to an extradition offence if four conditions are satisfied.

13 One of the conditions is the double criminality requirement which is stated in the following terms in s 19(2)(c):-

"the magistrate is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; ..."

14 The reference in s 19(2)(c) to the conduct constituting the offence is a reference to the acts or omissions, or both, by virtue of which the offence is alleged to have been committed; see s 10(2).

15 Another of the conditions is that the "supporting documents" in relation to the offence must have been produced to the magistrate; see s 19(2)(a).

16 The term "supporting documents" is defined in s 19(3) of the Act. It includes in any case, as provided by s 19(3)(c)(ii):-

"a duly authenticated statement in writing setting out the conduct constituting the offence."

17 The provisions which deal with the review of the magistrate’s orders are to be found in s 21 as follows:-

(d) the court to which the application or appeal is made shall have regard only to the material that was before the magistrate;

(e) if, because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has been released--the court to which the application or appeal is made may order the arrest of the person;

(g) if the court to which the application or appeal is made determines that the person is eligible for surrender, within the meaning of subsection 19(2), in relation to an extradition offence or extradition offences--the court shall include in its judgment on the review or appeal a statement to that effect specifying the offence or offences."

18 Section 22 of the Act deals with the fourth stage of the extradition process, namely executive determination that the person is to be surrendered to the requesting country. As stated in Todhunter at 73-74, it is important to distinguish between each of the stages in the legislative scheme.

19 These proceedings are not concerned with the fourth stage of the process. However, it is relevant to note that s 22(2) provides:-

21 The Magistrate considered, at [8] that the application to extradite Mr Griffiths was unusual for four reasons. Counsel for the United States attacked each of the stated reasons as either wrong or irrelevant to the question of whether Mr Griffiths was eligible for surrender.

22 The first reason was that the charge against Mr Griffiths is internet fraud involving "modern technical matters concerning computers and the internet".

23 The second reason was that Mr Griffiths has never been to the United States. The Magistrate said that he is not "a fugitive fleeing and hiding from the extradition country".

24 The third reason, which the Magistrate regarded as the most significant, was that the case does "not involve the usual situation where another country ... seeks the return of a person convicted of, or charged with, an offence physically committed in that other country." According to the Magistrate, the physical acts committed by Mr Griffiths in carrying out the acts with which he is charged occurred in New South Wales and not in the United States.

25 The fourth reason was that the Magistrate considered that the offences of copyright infringement and conspiracy to commit it are not the usual kind of extradition offences which come before the Court. Indeed, the Magistrate conduced his own research and said at [15] that he had not found a case with "even broad similarity to the circumstances" of the present case.

26 Moreover, the Magistrate considered that the offences with which Mr Griffiths is charged were in fact committed outside the United States because he set out at [16] Article 1(4) of the Treaty on Extradition Between Australia and the United States of America ("The Extradition Treaty"); see Regulation 4 Extradition (United States of America) Regulations. The Article to which the Magistrate referred deals with extradition offences in respect of which the requesting state is exercising extra-territorial jurisdiction.

27 As I said above, the Magistrate was satisfied that the supporting documents which were put before him included a duly authenticated statement in writing setting out the conduct constituting the offences in accordance with s 19(3)(c)(ii); see [18] of the Magistrate’s decision.

28 The Magistrate stated that the primary ground of opposition relied upon by
Mr Griffiths was the double criminality test stated in s 19(2)(c). Having commenced with the proposition that Mr Griffith’s conduct occurred in Australia rather than in the United States, the Magistrate found conceptual difficulties in applying the statutory test.

29 The Magistrate’s difficulties were recorded in the following passage at [20]:-

30 The reason why the Magistrate found that the double criminality test was not met is stated briefly. He referred to the leading authorities on the question and then said at [28]:-

31 The Magistrate took into account the charge against Mr Griffiths of conspiracy "with others" to commit the offences. He asked himself whether "the conduct of the person" to which ss 10(2) and 19(2)(c) refer includes the conduct of the alleged co-conspirators. The Magistrate considered at [29] – [30] that the conduct to which s 19(2)(c) refers does not include the conduct of co-offenders.

32 He said at [33] that while he accepted the principles relating to the law of conspiracy, "... it does not necessarily follow that they apply to the importing of conduct of co-offenders or co-conspirators for consideration under section 19(2)(c)."

33 The supporting documents before the Magistrate consisted, largely, of an affidavit of Robert W Wiechering ("Mr Wiechering"), an Assistant United States Attorney for the Eastern District of Virginia, and the various exhibits to the affidavit.

34 Mr Wiechering’s affidavit exhibits the indictment and sets out, inter alia, details of the charges against Mr Griffiths, the relevant United States law and the facts supporting the indictment.

35 The exhibits include an affidavit of Special Agent Dawn Gable ("Ms Gable") of the United States Bureau of Immigration and Customs Enforcement ("BICE"). Ms Gable was in charge of the investigation which resulted in the charges against Mr Griffiths and his alleged co-conspirators.

36 Count One in the indictment charges Mr Griffiths with conspiracy to infringe copyright in the United States in contravention of specified provisions of United States law.

38 Paragraphs 2 to 9 of the indictment set out particulars of the charge of conspiracy. Paragraph 2 states that Mr Griffiths and others, including the co-conspirators named in paragraph 1, were members of an internet software piracy organisation known as "Drink or Die" ("DOD"). Paragraph 2 states that DOD was a highly structured criminal organisation devoted to the unauthorised reproduction and distribution of copyright software over the Internet. Paragraph 2 also states that DOD sought to achieve a reputation as the fastest provider of the highest quality application and utility software, including Microsoft, to an underground internet piracy community known as "the warez scene".

39 Paragraph 3 of the indictment provides particulars of how the conspiracy was carried out and of Mr Griffiths’ involvement in it. The various stages in the theft and distribution of the copyright materials are described. These consist of a series of acts by DOD members commencing with the work of "suppliers" who are said to upload new software on to DOD’s "drop site" prior to the manufacturer’s public release date. The drop site is described as a secure computer site hosted by a DOD member on the computer network of the Massachusetts Institute of Technology in Boston, access to which is said to have been strictly controlled by Mr Griffiths and other high level DOD members through security measures including password protection.

40 Paragraph 3 of the indictment goes on to say that other DOD members known as "crackers" would remove the software from the drop site and use their skills to "crack" the software’s embedded copyright protection.

41 The remaining stages in the conspiracy are also described in paragraph 3. They consist of the work of "testers" and "couriers" who are said to have prepared the pirated work for release and distribution to DOD affiliated computer storage sites throughout the world.

42 Paragraph 4 of the indictment states that it was part of the conspiracy that when newly "cracked", or pirated software was released, a DOD leader, usually Mr Griffiths, would send an email to other DOD staff members announcing the release.

43 Paragraph 4 also refers to monthly summary reports maintained by DOD setting out details of the releases of the pirated materials. The reports from November 2000 to
11 December 2001 are said to indicate that DOD cracked and released more than 275 software programs worth more than $US 1,000,000.

44 Paragraph 5 of the indictment states that DOD was a highly structured organisation consisting of approximately 60 persons, the leaders of which had ultimate authority over all aspect of DOD’s work. Mr Griffiths is said to have been a long time DOD member and to have become a co-leader of DOD from early 2001.

45 Paragraph 6 states that it was a further part of the conspiracy that DOD staff members would communicate about the group’s illegal activities with other DOD members through secure internet chat sites. Mr Griffiths’ role in facilitating communication between DOD members is described.

46 Paragraph 7 states that it was a further part of the conspiracy that to reward its members DOD maintained a number of sites known as "leech sites" from which DOD members could download the many thousands of pirated software games, movies and music that were available to DOD members. Access to those sites is said to have been controlled by DOD’s leadership including Mr Griffiths.

47 Paragraph 8 states that it was a part of the conspiracy that DOD’s file transfer sites were protected by security mechanisms to ensure that only authorised users could gain access. As leader, Mr Griffiths is said to have overseen the maintenance and operation of the sites.

48 Paragraph 9 refers, by way of further particulars of the conspiracy, to a telephone conversation held on 9 September 2001 between Mr Griffiths and other DOD members. Mr Griffiths is said to have led the discussion on numerous aspects of DOD’s copyright piracy activities.

49 The indictment then sets out five overt acts of the alleged conspiracy. Importantly, all of the overt acts are said to have been committed in Virginia. It is unnecessary to set out the overt acts. Each specifies a particular act or acts forming part of DOD’s piracy activities in which Mr Griffiths is said to have participated.

50 Count 2 of the indictment charges Mr Griffiths with copyright infringement and aiding and abetting copyright infringement in contravention of two provisions of United States law. The statement of the charge does not refer specifically to aiding and abetting but this is evident from the reference to one of the provisions of United States law which is specified in the indictment.

52 Mr Wiechering’s affidavit describes the investigation which was carried out by authorities in the United States who investigated the software piracy activities of a number of "warez" groups including DOD.

53 The affidavit recounts details of the charges and the particulars of the conspiracy contained in the indictment.

54 Mr Wiechering states that during the three years prior to the dismantling of DOD by the United States authorities in December 2001, DOD, with the active participation of
Mr Griffiths, is estimated to have caused the reproduction and distribution of more than $US 50m worth of pirated software.

55 Mr Wiechering’s affidavit explains how a prosecution may be commenced in the United States through the process of an indictment returned by a grand jury. He states that the Grand Jury in the present case returned the indictment against Mr Griffiths on 12 March 2002. This is an obvious error and the correct date, which appears elsewhere, was 12 March 2003.

56 Mr Wiechering states that the statutes referred to in the indictment were in force at the time when the offences are alleged to have taken place. The relevant portions of the statutes are exhibited. They set out the offences of conspiracy to commit offences against United States law, criminal infringement of copyright and aiding and abetting.

57 The offence of conspiracy is found in 18 U.S.C SS371 which states that if two or more persons conspire to commit an offence or to defraud in any manner or for any purpose, and one or more of those persons does an act to effect the object of the conspiracy, he or she shall be liable to fine or imprisonment of up to five years.

58 The offence of copyright infringement is stated in 17 U.S.C. SS506(a) as follows:-

59 Where the offence of copyright infringement consists of reproduction or distribution during a 180 day period of at least ten infringing copies having a retail value of more than $2,500, the person is liable to imprisonment for up to 5 years; see 17 U.S.C. SS2319 (b).

61 Mr Wiechering’s affidavit then explains the offence of conspiracy under United States law. He states that the crime is committed when two or more people agree to do something that is unlawful. It is not necessary for the conspirators to have made a formal agreement or to have agreed on every detail. One becomes a member of an unlawful conspiracy by wilfully participating in an unlawful plan with intent to advance an object or purpose of the conspiracy.

62 The four elements of the charge of conspiracy which must be established against Mr Griffiths are set out in Mr Wiechering’s affidavit as follows:-

63 Mr Wiechering states that the gravamen of the charge contained in the first count of the indictment is that Mr Griffiths knowingly and wilfully participated in a conspiracy that planned to unlawfully reproduce and distribute copyright works.

64 The affidavit then deals with each of the four elements of the conspiracy count and provides details of how the evidence satisfies each count.

65 It is unnecessary to set out the detail provided by Mr Wiechering of how the evidence establishes the conspiracy charge. However, counsel for Mr Griffiths submitted that it was too vague and general to be a statement in writing setting out the conduct as required by
s 19(3)(c)(ii). I will therefore refer to one example of what was said to be the inadequate material.

66 An example of this is to be found at paragraph 28 of Mr Wiechering’s affidavit. There, he states that the evidence satisfies the first element of the conspiracy count, that is, the mutual understanding to accomplish a common and unlawful plan. This is said to be that from January 1999 to about December 2001 Mr Griffiths agreed with other members of DOD to violate United States law through illegal reproduction and distribution of copyright works over the Internet. Mr Wiechering says that eleven members of DOD have admitted to the conspiracy and statements of four of those persons are exhibited.

67 As to the other elements of the conspiracy count, it is sufficient to note that the prosecution will need to prove the commission of one overt act. As Mr Wiechering observes, the indictment charges five overt acts of the conspiracy.

68 The elements of the count of aiding and abetting are set out in paragraph 37 of Mr Wiechering’s affidavit as follows:-

69 As with the conspiracy count, Mr Wiechering refers to evidence which satisfies each element of the charge of aiding and abetting. He does not set out all of the evidence but gives the effect of the evidence and an example of how Mr Griffiths is said to have exercised his authority to grant access to a DOD member to pirated copyright works. The person to whom access was granted had the screen name "ParisAngel". This is said to be but one of many examples uncovered during the investigation.

70 Mr Wiechering states at paragraph 40 of his affidavit that the second element of the count of aiding and abetting is satisfied. He says:-

71 Mr Wiechering’s affidavit goes on to say that the third and fourth elements of the offence of aiding and abetting are satisfied but it is unnecessary to set out the details of how those elements are said to be established.

72 Ms Gable’s affidavit provides further details of Mr Griffiths’ conduct. She states that Mr Griffiths joined DOD as a courier and that he became a council member in about the summer of 1998. His responsibilities and activities are set out in some detail.

73 Ms Gable also provides details of the topics discussed in the telephone conversation held on 9 September 2001, and referred to in paragraph 9 of the indictment. She also sets out the remarks attributed to Mr Griffiths in the conversation.

74 Ms Gable also exhibits to her affidavit a list of all software releases pirated and distributed by DOD from November 2000 to 11 December 2001. The list specifies the pirated applications, the manufacturer of each such application and the DOD emails from which the information as to the piracy and distribution were obtained.

The law of conspiracy in New South Wales and the proposition that crime is territorial

75 The offence of conspiracy is stated in s 11.5 of the Criminal Code Act 1995 (Cth) ("the Criminal Code"). Section 11.5(1) provides that a person who conspires with another person to commit an offence punishable by imprisonment for more than twelve months is guilty of the offence of conspiracy to commit that offence. The punishment which is stipulated is the punishment which applies to the offence to which the conspiracy relates.

76 There are three elements of the offence. They are stated in s 11.5(2) as follows:-

77 In Director of Public Prosecutions v Doot [1973] AC 807 ("Doot"), which was approved by the High Court in Lipohar v The Queen [1999] HCA 65; (1999-2000) 200 CLR 485, the House of Lords held that the English courts had jurisdiction to try a charge of conspiracy to import cannabis into the United States via England. A number of the overt acts of the conspiracy were committed in England and the perpetrators were apprehended there.

78 The House of Lords held that although a conspiracy is complete as a crime when the agreement is made, it continues in existence for so long as there are two or more parties to it who intend to carry out its object. Their Lordships also held that the English courts had jurisdiction to try the offence if there was evidence that the conspiracy, wherever formed, was still in existence when the accused carried out the overt acts in England.

79 Lord Wilberforce said (at 817) that the proposition that all crime is territorial may provide an answer to simple cases as for example where all relevant elements occur outside the country. But, as his Lordship observed, there are many crimes which cannot be so simply located. They may originate in one country and be continued in another and they may produce effects in a third country.

80 Lord Wilberforce pointed out (at 818) that in conspiracy cases the implementing action is often the only evidence of the conspiracy. Thus, the conspiracy is to be inferred from the overt acts. His Lordship continued as follows:-

84 Lord Salmon also referred (at 835) to the continuing nature of a conspiracy and pointed out that once three of the five co-conspirators entered England with their illicit cargo they were agreeing not only on their own behalf but on behalf of and with the authority of the other two. Therefore, as his Lordship said:-

85 In Lipohar, the High Court considered the question of whether a charge of conspiracy to defraud a South Australian company of an incentive rental payment in respect of a building situated in Victoria was justiciable in South Australia. The conspiracy to commit the fraud was initially entered into outside of South Australia.

86 The High Court held that because the implementation of the conspiracy involved the deception of people in South Australia, the conspiracy was punishable according to the law of South Australia.

87 Gleeson CJ referred at [14] to the elements of the crime of conspiracy to defraud at common law. His Honour cited Doot for the proposition that a conspiracy is a continuing crime. He said at [14]:-

88 The Chief Justice observed at [21] that there is nothing new about trans-jurisdictional activity giving rise to potential breaches of the laws of a number of different territories. His Honour noted that this arose from developments in communications by post and telegraph more than a century ago.

89 His Honour, after citing a number of passages from the judgments in Doot, said at [34] that the Privy Council in Liangsiriprasert v United States [1991] 1 AC 225 went further than the House of Lords. The Chief Justice quoted at [34], the following passage from the speech of Lord Griffith, in the Privy Council:-

90 The Chief Justice went on to say, at [37], that trans-jurisdictional commerce is now accomplished with such speed and facility that for many purposes jurisdictional boundaries are irrelevant. His Honour plainly had in mind the carrying out of international commerce through the Internet.

91 Gaudron, Gummow & Hayne JJ also referred with approval to Doot; see at [65]. Their Honours said at [112] that even if a conspiracy is formed wholly outside of Australia to do an unlawful act in Australia, this is sufficient under Australian common law to support a charge of conspiracy.

92 The offence of aiding and abetting is dealt with in s 11.2 of the Criminal Code which provides that a person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly; see 11.2(1).

93 The elements of the offence are stated in ss 11.2(2) and 11.2(3) of the Criminal Code as follows:-

(a) the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and

(a) his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or

(b) his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed."

94 The offence of copyright infringement appears in s 132(2) of the Copyright Act 1968 (Cth). That subsection is as follows:-

95 Section 132(6) contains a territorial limitation on the offence of copyright infringement by proving that s 132 applies only in respect of acts done in Australia.

96 Thus, for present purposes, the offence of copyright infringement is committed in New South Wales if a person does in Australia a specified act in relation to an article if he or she knows or ought reasonably to know that the article is an infringing copy of the work in which copyright subsists; see J Lahore & WA Rothnie, Copyrights and Designs Butterworths Australia, 2003, (Looseleaf edn) at [38,505].

97 The relevant act is stated in s 132(2)(b) namely distributing the article for any purpose other than the purpose of trade to an extent that affects prejudicially the owner of the copyright.

98 Contravention of s 132(2) carries a fine or imprisonment for not more than five years; see ss 132(6AA) and 132(6AB).

99 Section 19(2)(c) required the Magistrate to be satisfied that "the conduct of the person constituting the offence" in the United States, if it had taken place in New South Wales, would have constituted an offence punishable by a term of imprisonment for a period of not less than 12 months.

100 The process which is involved in reaching the necessary state of satisfaction has been described in the authorities as one of "practical judgment" which involves a form of abstraction and characterisation of the conduct to determine the essence of the charge in the requesting state; see Linhart v Elms (1988) 81 ALR 557 at 580 (Gummow J); see also Dutton v O’Shane [2003] FCAFC 195; (2003) 200 ALR 710 at [69] (Finn and Dowsett JJ).

101 The purpose which underlies the double criminality rule was described by Deane J, when dealing with an earlier form of the provision, in Riley v The Commonwealth of Australia [1985] HCA 82; (1985) 159 CLR 1 ("Riley") at 17. His Honour said that the essential utility of the rule is to provide a safety mechanism under which a state is not required to surrender a person, who may be one of its own nationals, to be tried and punished for conduct which, according to its own standards, is not deserving of punishment.

102 However, Deane J warned against an over-zealous approach to the content of the rule. The effect of what his Honour said, at 17, is that the utility of the principle should not be permitted to be used as an impediment to the advancement of criminal justice by defining the content of the rule:-

103 His Honour went on to say that the generally accepted view defines the principle of double criminality in terms of substance rather than technical form. It is this view which forms the basis of the remarks of Gummow J in Linhart v Elms and Finn and Dowsett JJ in Dutton v O’Shane to which I referred above.

104 Although Deane J was addressing the words of an earlier form of the section, his Honour’s characterisation of the test is equally applicable to s 19(2)(c). He said, at 18:-

105 In Riley, Gibbs CJ, Wilson and Dawson JJ also addressed the meaning of the phrase "equivalent act or omission" in s 4(1A) of the Extradition (Foreign States) Act 1966 (Cth). The section referred to "the act or omission constituting the offence or the equivalent act or omission". Their Honours said at 8:-

106 It seems to me that the test under s 19(2)(c) is the same as the test to which their Honours referred in Riley.

A statement in writing setting out the conduct constituting the offence – s 19(3)(c)(ii)

107 The proper construction of s 19(3)(c)(ii) has been dealt with by a number of Full Courts.

108 As Hill and Hely JJ observed in De Bruyn v Republic of South Africa [1999] FCA 1344; (1999) 96 FCR 290 at [7], the importance of identifying the "conduct constituting the offence" is readily apparent. This is because the same phrase is used in ss 19(2)(c) and 19(3)(c)(ii) and it is this conduct upon which the Magistrate is to determine whether the double criminality requirement is satisfied.

109 The legislative scheme was explained in Zoeller v Federal Republic of Germany by Lockhart, Gummow and Hill JJ (1989) 23 FCR 282 ("Zoeller") at 299-300. The magistrate is charged with the task of determining whether the double criminality test is satisfied and that there is no extradition objection. The magistrate is confined to the s 19(3)(c)(ii) statement in determining whether the conduct of the person would have constituted an extradition offence in Australia. Matters going to the innocence of the alleged offender are irrelevant and are excluded by s 19(5).

110 That there has been a foreign crime is proved by the authenticated warrant referred to in s 19(3)(a) of the Act. The facts relevant to the crime are proved by the statement under
s 19(3)(c)(ii). All that the Magistrate is required to do is to determine whether the conduct referred to in the 19(3)(c)(ii) statement is an offence under the law of the state or territory of Australia or under Commonwealth law; Zoeller at 300.

111 In De Bruyn, Gyles J summed this up at [30] by saying that the evident purpose of the s19(3)(c)(ii) statement is to enable the person whose extradition is sought, and the magistrate, to determine whether the double criminality requirements of s 19(2)(c) are satisfied. His Honour dissented in the result but it seems to me that this statement accurately identifies the purpose of s 19(3)(c)(ii) consistently with the legislative scheme as explained in Zoeller.

112 What then is required of the statement of conduct is "a statement of what is alleged to have been actually done or omitted, not a mere statement of the charge"; see Zoeller at 297.

113 It is the elements or ingredients of the charge, not the particular evidence adduced to prove the acts or omissions, which must form the content of the s 19(3)(c)(ii) statement; see Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 519 (Gummow J); Zoeller at 294; De Bruyn at [11] and [31] cf Linhart v Elms at 587-588 (Foster J). A simple definition of the offence will not suffice; McDade v United Kingdom [1999] FCA 1868 ("McDade") at [16] (Kenny J).

115 The statement must not be so vague and general and so disorganised that the relevant acts or omissions cannot be reasonably identified; McDade at [17].

116 In my respectful opinion, the Magistrate approached the matter with a number of fundamental misconceptions.

117 First, internet fraud, though relatively new, involves nothing more than an application of the legal principles applicable to communication by post and telegraph. As Gleeson CJ observed in Lipohar, these developments commenced over 100 years ago. True it is that the Internet has a wider reach and wider field of applications but the problem of widely disseminated communication is, as Gleeson CJ, McHugh, Gummow and Hayne JJ pointed out in Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 at 605 ("Gutnick") , much older than the Internet and the World Wide Web.

118 As their Honours said in Gutnick at 605, the law has had to grapple with cases of this kind ever since newspapers and magazines, and later radio and television came to be made available to large numbers of people over wide geographic areas. To this may be added telephones, mobile phones and fax machines.

119 Second, the fact that Mr Griffiths is not, as the Magistrate described him, a "fugitive" fleeing from the United States is irrelevant. This was not a bar to extradition in Schoenmakers v Director of Public Prosecutions (1991) 108 FLR 457, where the person whose extradition was requested by the United States, returned to Australia from Holland where his illegal activities took place.

120 In any event, "fugitive" is merely a term which describes the person whose extradition is requested. There is no requirement that the person be fleeing the jurisdiction of the requesting state. A well known example of this is to be found in Regina v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [1998] UKHL 41; [2000] 1 AC 61 in which Spain sought the extradition of General Pinochet from England to Spain on charges of the murder of Spanish citizens in Chile.

121 Third, it is wrong to characterise the acts of Mr Griffiths as acts physically committed in New South Wales. It is made plain in Doot and Lipohar that conspiracy is a continuing offence. Even if the conspiracy was formed outside the jurisdiction, the agreement is performed in it when a co-conspirator, acting as agent of the others, carries out an overt act inside the jurisdiction.

122 Fourth, it is not correct to say that conspiracy to breach copyright in the jurisdiction of the requesting state is an unusual kind of extradition offence. Regina v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Government of USA [2000] 2 AC 216 is an example of such an extradition offence. There, the United States Government sought the extradition from England of a person charged with conspiracy to secure unauthorised access to the American Express computer system with intent to commit fraud.

123 Moreover, here, the relevant treaty offence was not an extra-territorial offence within Article 1(4) of the Extradition Treaty. It was an offence punishable under the laws of the United States which included conspiracy and aiding and abetting; see Article 1(1) and Article 1(2) of the Extradition Treaty.

124 For reasons set out below, I do not agree with the learned Magistrate that the transposition process required by the double criminality principle would stretch the "conduct of the person" or "equivalent conduct" beyond recognition. It may well be that the Magistrate held this view because he started from the proposition that Mr Griffiths’ acts were committed in Australia. Instead, as the above authorities show, the effect of the indictment is that the acts were committed in the United States. Indeed, that is what is stated in both counts in the indictment.

Whether there was a statement in writing setting out the conduct constituting the offence – s 19(3)(c)(ii)

125 As Wiest, Zoeller, De Bruyn and McDade make clear, what is required to satisfy
s 19(3)(c)(ii) is a statement of the elements or ingredients of the conduct, not the evidence. The statement must speak with sufficient specificity and coherence; McDade at [16].

126 The liberty of the subject is at stake and it is not permissible to resolve any ambiguity in favour of the United States; see De Bruyn at [28] see also Cabal v United Mexican States (2002) 186 ALR 188 at [129] (French J).

127 It seems to me that the necessary elements or ingredients of the conduct constituting the offence of conspiracy are stated with sufficient specificity and coherence in Count One of the indictment. It is permissible to have regard to the content of the balance of the supporting documents, such as the affidavit of Mr Wiechering. As Finn and Dowsett JJ said in Dutton v O’Shane at [56], it is well established that the statement may be constituted by a number of documents. However, here, I do not think that Mr Wiechering’s description of the conduct adds in any substantial way to the conduct stated in the particulars contained in paragraphs 2 to 9 of the indictment.

128 Paragraph 1 of the indictment in Count One states the offence. If that were all that was specified, it would be little more than a simple statement or definition of the offence which would not suffice.

129 However, the particulars in paragraphs 2 to 9 which I have referred to in some detail above, set out a reasonably clear and coherent statement of the conduct which is said to constitute the offence of conspiracy charged in paragraph 1 of the indictment. Those paragraphs set out in a sufficiently precise and coherent way the necessary elements of the offence of conspiracy. These are, as explained by Mr Wiechering, the mutual understanding of the parties to accomplish the unlawful purpose of copyright piracy, that Mr Griffiths intentionally joined the conspiracy knowing its unlawful purpose and that one or more of the parties knowingly committed at least one of the overt acts described in the indictment.

130 As I have already said, one overt act is required and five are set out in indictment. They are stated in reasonably clear and coherent terms.

131 Counsel for Mr Griffiths urged upon me the proposition that the statements in the indictment were generalised or "conclusory". He submitted that they begged the question as to precisely what Mr Griffiths agreed to do.

132 However, I reject that submission. In my opinion, it is quite plain from the particulars that Mr Griffiths is said to have agreed to join, and later lead, DOD, an unlawful organisation which had agreed to steal, pirate and distribute copyright works. This is also to be inferred from the overt acts stated.

133 Counsel for Mr Griffiths submitted in relation to the statement of conduct of the offence of conspiracy that the statement was inadequate because it did not indicate whether there was one conspirator or more than one. He pointed to the statement in Count One that Mr Griffiths conspired with five named persons and a sixth person having the screen name of "Evil Tea" and contrasted this with the statement made in paragraph 5 of the indictment that the membership comprises approximately 60 persons.

134 However, in my view, it is plain that only one conspiracy is charged, namely the conspiracy with the six persons referred to in paragraph 1 of Count One. This is not a case where a number of separate conspiracies stemming from a central arrangement are charged against Mr Griffiths; cf Gerakiteys v The Queen [1984] HCA 8; (1983-84) 153 CLR 317.

135 The conduct constituting the offence of copyright infringement is stated in Count Two of the indictment and in the statements contained in the affidavits of Mr Wiechering and Ms Gable. Count Two may be insufficient by itself because it merely alleges infringement by reproduction and distribution of ten or more copyright works.

136 However, Mr Wiechering’s affidavit describes in paragraphs 38 to 40 acts done by Mr Griffiths in reproducing and distributing copyright works without the authorisation of the copyright owner. Ms Gable’s list of the software releases "cracked & distributed" by DOD contains a statement of the copyright items which Mr Griffiths is said to have infringed as a principal. It is true that the acts are attributed by Ms Gable to DOD rather than Mr Griffiths but he is stated in the indictment to have been a council member and leader of DOD during this period.

137 Counsel for Mr Griffiths submitted that Ms Gable’s list did not provide a sufficient statement of the conduct because it was necessary, so he said, for there to be a statement of who was the author, where the work was first published, whether the author was an employee of a company, and the citizenship of the author. This was said to be required so that the Magistrate could then determine, for the purpose of the double criminality rule, whether there would be an infringement under s 35 of the Copyright Act.

138 However, in my opinion, this submission cannot be sustained. All that is required in the statement of the conduct is the ingredients. The authorities to which I have referred make it plain that the evidence is not required. The effect of the submission is that chapter and verse of the evidence must be stated. That is contrary to all of the authorities on this question.

139 The ingredients of the conduct constituting the offence of aiding and abetting are contained in the indictment and in paragraphs 38 to 42 of Mr Wiechering’s affidavit.

140 Mr Wiechering explains the elements of the offence in paragraph 37. I will not repeat them. I set out the elements at [68] above. Although only one example is given in paragraph 38 of Mr Wiechering’s affidavit, it seems to me that this is sufficient to provide the ingredients of the offence of aiding and abetting the person known as ParisAngel to infringe copyright in the 1899 titles downloaded or uploaded by that person.

141 There is a sufficient statement of the copyright in the works in paragraph 38 of Mr Wiechering’s affidavit. The element of infringement by reproduction or distribution is stated in paragraph 40. Wilfulness is sufficiently set forth in paragraph 41 which states that when Mr Griffiths granted access to the site to ParisAngel, he acted deliberately to facilitate the reproduction and distribution of copyright works.

142 The requirement that there be reproduced or distributed during a 180 day period, at least 10 copies of the works, with a retail value of more than $2,500 is met by statements to that effect in paragraphs 38 and 39 of Mr Wiechering’s affidavit.

143 It follows in my opinion that there is a statement in writing under s 19(3)(c)(ii) setting out the conduct constituting the offences of conspiracy to infringe copyright as set forth in Count One, copyright infringement as a principal as set out in Count Two and aiding and abetting the infringement of copyright by ParisAngel. However, I do not think that there is a statement in writing setting out the conduct constituting the offence of aiding and abetting any person other than ParisAngel.

144 In my opinion, in the present case the question of whether the double criminality test is satisfied is relatively straightforward. This is not a case where the exercise of practical judgment as to whether the conduct constituting the offence satisfies the necessary elements is a difficult one.

145 The effect of the double criminality test as stated in the authorities is that the conduct constituting the offence, when transposed to Australia and viewed through Australian eyes, would constitute an offence under the law of New South Wales law. In the present case, the conduct constituting the offences seems to me to plainly satisfy that test.

146 This is not a case, such as Dutton v O’Shane, where the labels describing the offences in the requesting state were in different terms from local law. Nor does it involve the need, as occurred in Linhart v Elms, to characterise the institutions administering the law in the requested state and to determine whether there is a correspondence between the legal systems of relative positions and functions.

147 The conduct constituting the offence of conspiracy in the requesting state, when viewed through Australian eyes, contains precisely the same elements as are found in s 11.5 of the Criminal Code. Each jurisdiction contemplates the elements of a mutual understanding or agreement, intention by the person charged and at least one other party, to commit an unlawful act and the commission of one overt act.

148 Nor is this a case of the kind which was discussed in the Irish case of The State (Furlong) v Kelly [1971] IR 132 at 141 to which Deane J referred in Riley where the law of the requested state has an additional essential ingredient which is not found in the law of the requesting state.

149 It is true, as counsel for Mr Griffiths pointed out, that the charge is conspiracy to infringe copyright and, under the law of New South Wales, the offence of copyright infringement is limited to acts done in Australia. But it does not follow that the conduct constituting the offence with which Mr Griffiths is charged, namely conspiracy to infringe copyright in the United States cannot be transposed here for the purpose of the double criminality rule. Indeed, to suggest otherwise would be contrary to the statement of principle as explained by Gibbs CJ, Wilson and Dawson JJ and by Deane J in Riley. It would also be contrary to the approach stated by the Full Courts in Linhart v Elms and Dutton v O’Shane.

150 The exercise of practical judgment which the Magistrate was required to carry out was to consider whether, if Mr Griffiths, while physically located in the United States, made an agreement, perhaps initially in the United States, to steal, reproduce and distribute Australian copyright works by obtaining access to a computer system situated in Australia, and by carrying out five overt acts of the conspiracy, either by himself or through co-conspirators in Australia, his conduct would necessarily involve the offence of conspiracy to infringe copyright in New South Wales. The answer to this is plainly that it would constitute such an offence.

151 It is quite irrelevant to this exercise that the conspiracy may have been entered into in the first instance outside the jurisdiction. In any event, that proposition is likely to be incorrect because of the rules which apply to the formation of an agreement by electronic means.

152 Moreover, the carrying out of the overt acts of the conspiracy by co-conspirators inside the jurisdiction has the effect that the agreement is performed within that jurisdiction.

153 Turning to the conduct constituting the offence of copyright infringement, the elements of the offence are virtually identical in the United States and in New South Wales. Each requires the distribution of an article or work wilfully or with knowledge of infringement. Section 132(2)(b) of the Copyright Act requires the infringement to be to an extent that affects prejudicially the owner of the copyright. This element corresponds to the requirement of the United States law that the act be for the purpose of commercial advantage or private financial gain in respect of an article with a total retail value of more than $1,000.00.

154 The United States offence of copyright infringement includes the element of "reproduction or distribution" whereas s 132(2)(b) of the Copyright Act prohibits distribution without referring to reproduction. Nevertheless, reproduction is a necessary step in distribution. It follows in my opinion that there is the necessary degree of correspondence in relation to this element.

155 So too, the conduct constituting the offence of aiding and abetting corresponds with the elements of aiding and abetting stated in s 11.2 of the Criminal Code. Each requires the element of wilfulness to aid or abet or counsel or procure the commission of the offence.

156 All of the offences carry a penalty of imprisonment for a period of more than twelve months in the United States and in Australia.

157 The only deficiencies pointed to by Mr Griffiths’ counsel in satisfying the conditions for establishing eligibility for surrender under s 19 were the statement in writing under
s 19(3)(c)(ii) and the double criminality requirements of s 19(2)(c).

158 The Magistrate was satisfied that there was a statement in writing in accordance with s 19(3)(c)(ii) of each of the offences of conspiracy to commit copyright infringement, copyright infringement itself and aiding and abetting copyright infringement.

159 In my opinion, the Magistrate was correct in finding that there was the necessary statement of the offence of conspiracy and of the offence of copyright infringement.

160 However, in my opinion, the s 19(3)(c)(ii) statement of the conduct constituting the offence of aiding and abetting was limited to the offence of aiding and abetting the person identified as ParisAngel in infringing the copyright in the 1,899 titles referred to in paragraphs 38 and 39 of the affidavit of Mr Wiechering.

161 In my opinion the conduct of Mr Griffiths constituting each of those offences in relation to the United States, if it had taken place in New South Wales, would have constituted an extradition offence here. Thus, the double criminality requirement of
s 19(2)(c) is satisfied for each of the offences to which I have referred.

162 Accordingly, I propose to make an order under s 21(2)(b) of the Act quashing the order of the Magistrate. I will also give a direction in accordance with s 21(2)(b)(ii). It may also be necessary to make orders for arrest, release and bail under s 21(6)(e) and (f).

163 I state in accordance with s 21(6)(g) of the Act that in my opinion Mr Griffiths is eligible for surrender to the United States in relation to the extradition offences of conspiracy to infringe copyright as stated in Count One of the indictment, infringement, as principal of copyright works as specified in Count Two of the indictment and aiding and abetting the infringement of copyright by the person named as ParisAngel as stated in Count Two of the indictment and paragraphs 38 and 39 of the Affidavit of Mr Wiechering.

I certify that the preceding one hundred and sixty-four (164) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Counsel for the Applicant:	P Roberts SC with P McDonald

Solicitor for the Applicant:	Commonwealth Director of Public Prosecutions

Counsel for the 1^st Respondent:	C Moore

Solicitor for the 1^st Respondent:	Legal Aid Commission of New South Wales

Solicitor for the 2^nd Respondent:	Crown Solicitor

Date of Hearing:	28 June 2004

Date of Judgment:	7 July 2004

(f)	if:
(i)	because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has not been released; or
(ii)	the person has been arrested under an order made under paragraph (e);

(iii)	order that the person be kept in such custody as the court directs; or
(iv)	if there are special circumstances justifying such a course, order the release on bail of the person on such terms and conditions as the court thinks fit;

Federal Court of Australia

United States of America v Griffiths [2004] FCA 879 (7 July 2004)