Okendeji v Government of the Commonwealth of Australia & Anor

This is an appeal pursuant to Section 103 of the Extradition Act 2003 (the 2003 Act). The Government of the Commonwealth of Australia (Australia) has requested the extradition of this appellant who is 26 and of Nigerian citizenship. He is accused of conduct in Australia which it is alleged, had it occurred in the United Kingdom, would have constituted offences of attempted evasion of the prohibition upon the importation of cocaine and of failing to surrender at trial. Although the District Judge sent a case to the Secretary of State for his decision as to whether the appellant was to be extradited for a third offence, namely the theft of a passport, it is now accepted by Australia that that offence does not amount to an offence in respect of which he can be extradited. It does not fall for further consideration on this appeal.

The issue on this appeal is whether the District Judge was correct in deciding that the appellant’s extradition would be compatible with his Convention rights within the meaning of the Human Rights Act 1998, pursuant to Section 87(1) of the 2003 Act. In essence, the appellant contends that by reason of the reversal of the legal burden of proof under Australian criminal legislation relating to the importation of drugs and a failure to attend in accordance with a bail undertaking, there is likely to be a flagrant breach of the appellant’s right to a fair trial in Australia, contrary to Article 6 of the European Convention of Human Rights and thus Section 87 of the 2003 Act.

A further argument as to whether the appeal was in time was abandoned by Australia at the outset of the hearing of the appeal. The appellant also advanced a further argument in relation to an allegation of entrapment which was not pursued with any vigour before this court.

On 29^th September 2003 a consignment of 994.7g cocaine (774.3g at 100% purity) was imported into Australia from Brazil. It was concealed inside two wooden poles at either end of an oil painting. After the consignment was substituted for an inert powder, a controlled delivery was undertaken by the Australian Federal Police in an attempt to identify those involved in the importation. Both the appellant and another man were arrested, allegedly after the other man had accepted delivery of the consignment from DHL Couriers and after he been joined by the appellant who was seen to be carrying the oil painting.

After arrest it was discovered that the appellant’s mobile telephone showed that he had made a number of recent calls to DHL. There was also evidence that he had sent a money transfer to Brazil in May 2003.

The appellant was admitted to conditional bail but he failed to attend for trial, travelling via Singapore to London. He was arrested as he attempted to embark from Heathrow to Calgary.

Australia has been designated a Category 2 Territory pursuant to Section 69 of the 2003 Act and the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003. Part 2 of the 2003 Act applies as modified by the provisions of the Extradition Act 2003 (Multiple Offences Order) 2003.

Further, since Australia is not only a Category 2 Territory but has also been designated for the purposes of Section 84 by an order of the Secretary of State, the District Judge was not required to examine whether the evidence was sufficient to make a case requiring an answer pursuant to Section 84(1) but was bound to proceed under Section 87.

By Section 87:-

The right of appeal arises pursuant to Section 103 of the 2003 Act.

The powers of this court are identified in Section 104:-

The alleged importation of cocaine falls within Section 233B(1)(c) of the Customs Act 1901:-

The Bail Act allegation fell within Section 51(1) of the Bail Act 1978 (NSW) which provides that:-

The District Judge conducted the extradition hearing on 12^th November 2004 and handed down a reserved judgment on 1^st December 2004. The District Judge said of the assertion that the charges imposed a reverse burden of proof and offended Article 6:-

By Article 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR):-

The presumption of innocence is one of the elements of a fair criminal trial required by Article 6(1) (see eg Lord Bingham at paragraph 9 in Sheldrake v DPP [2004] 3 WLR 976 at 984). It not only protects a particular individual on trial but maintains public confidence in the “enduring integrity and security of the legal system” (Sachs J in State v Coetzee [1997] 2 LRC 593 at para 220 cited with approval by Lord Steyn in R v Lambert [2002] 2 AC 545 at para 34). Legislative interference with the presumption of innocence requires justification and must not be greater than is necessary. The principle of proportionality must be observed. (See Lord Steyn at paragraph 34 of Lambert (q.v. supra).

In Lambert the House of Lords held that Section 28(2) and Section 28(3)(b)(i) of The Misuse of Drugs Act 1971, which provided that it was a defence for the accused to prove that he neither knew nor suspected the existence of a fact alleged by the prosecution, in so far as they sought to impose a legal burden of proof, contravened Article 6(2) of the ECHR. Lord Steyn said:-

The vice of the imposition of a legal burden of proof is that since it requires an accused to establish his innocence it necessarily involves the risk that a jury might convict a accused even if it has a doubt about his guilt or indeed takes the view that the version of the accused is as likely to be true as not (see eg Lord Steyn at paragraph 38 page 572 of Lambert).

In considering the compatibility of Sections 28(2) and (3)(b)(i) of The Misuse of Drugs Act 1971 the House of Lords concluded that the only way of achieving compliance with Article 6(2) was to read those sections as imposing no more than an evidential burden. That it is to say that the words “to prove” meant no more than “to give sufficient evidence”. Such an approach was not open to the District Judge. Neither he nor this court has the power to adopt the same approach to the criminal law of Australia as would be adopted in accordance with Section 3 of the Human Rights Act 1998 by “reading down” provisions of The Misuse of Drugs Act 1971. Nor did the District Judge purport to read down the laws of the foreign state.

The crucial difficulty, as I see it, is that both the District Judge and this court are being asked to rule that the appellant is at risk of suffering a flagrant breach of his right to a fair trial without any evidence whatever as to the way in which the District Court of New South Wales will interpret the relevant sections of the Customs Act 1901 or the Bail Act 1978 (NSW). Before this court, Mr Summers relied upon a reference in the copy of Section 9A(2) of The Passports Act 1938 exhibited by Australia for the District Judge to the imposition of an evidential burden of proof. But there was no basis upon which this court could rule that that reference to the evidential burden was part of the statute rather than merely a note by a commentator. Further, whilst it is true that in Lambert the words “to prove” or “if he proves” imposed, in their ordinary meaning, a legal as opposed to an evidential burden of proof (see eg Lord Hope at paragraph 72) there is no warrant for saying that the same meaning would be adopted in Australian law. More significantly, there is no evidence whatever as to the ability or otherwise of the Australian courts to interpret relevant sections as imposing no more than an evidential burden of proof in order to achieve a fair trial.

The solution of the District Judge was to conclude that Mr Summers on behalf of the appellant had failed to prove his case. I am unable to agree that that is a satisfactory or correct conclusion to the problem. True it is that the law of Australia is a matter of fact which must be proved by expert evidence. True it is that the defendant before the District Judge (the appellant before this court) must prove his case. But Australia had notice of the point in written submissions served in advance of the hearing before the District Judge. It did not choose to answer, by expert evidence, the contention that the relevant sections of the 1901 Act imposed a legal burden of proof. Australia has not sought to do so before this court. It cannot have been difficult to obtain expert evidence from a lawyer, expert in Australian law, but resident in this country. In my judgment the District Judge was wrong merely to dismiss Mr Summer’s submission without putting the matter beyond doubt by obtaining expert evidence on the point. Since the defendant had given notice of the point, in my view the District Judge ought to have adjourned the hearing so as to obtain expert evidence on the point. Indeed, this court was told that an adjournment was expressly requested in the event that the District Judge took the view that there was any merit in the government’s submission that the relevant sections of the 1901 Act might not impose legal burdens.

The reason why the District Judge rejected the submission in the absence of what he described as “proper proof” appears to lie in the following paragraph of his decision. In that paragraph he gave two reasons for rejecting the submission. Firstly, he said that an element of proportionality had been met. There was no basis for such a conclusion. In some cases there may be objective justification for some legislative interference with the burden of proof. But the burden is on the State to show that any legislative interference with the presumption of innocence is no greater than necessary (see the passage in Lords Steyn’s speech in Lambert already cited at paragraph 34). The Australian government did not advance the submission that the legislative means adopted in the relevant sections of the 1901 Act were no greater than necessary. It provided no material on the basis of which it could be concluded that the shift of the legal burden, if that is what it was, was necessary and no greater than necessary. In those circumstances it was simply not open to the District Judge to reach his conclusion as to proportionality.

Secondly, it is not clear from his decision whether the District Judge was concluding that any shift in the legal burden of proof would not amount to a flagrant breach of Article 6(2). But if that was his conclusion, again, I take the view that there was no justification for it. In the absence of any expert evidence as to the approach of Australian law it seems to me impossible to reach any conclusion as to whether this appellant is at risk of a flagrant breach of Article 6. I am not prepared to make any assumption one way or the other. Mr Summers contended that any shift in the legal burden of proof was inevitably a flagrant breach since the presumption of innocence is of such fundamental importance to a fair trial. He may be right, but it seems to me that such a finding in relation to the law of Australia which has proved so often to be an important influence on the jurisprudence of this country, ought not to be reached in the absence of the evidence necessary to form any conclusion as the correct construction of the relevant sections of the 1901 Act. Any conclusion as to the risk of a flagrant breach ought to wait the necessary expert evidence on the correct meaning of Section 233B and as to the way in which that section would be construed and applied by the District Court in New South Wales.

Mr Hardy, on behalf of Australia, sought to argue that the means by which the fairness of a trial is achieved ought to be left to the court of trial in the receiving State. The source of his argument is dicta in Raffile v The Government of the United States of America [2004] EWHC Admin 2913 per Pitchford J at paragraph 32 and ex parte Elliot [2001] EWHC Admin 559 per Rose LJ at paragraph 27. In my judgment that submission goes no where near far enough for this court to assume that there will be no unjustifiable interference with the presumption of innocence and no flagrant breach of the appellant’s rights under Article 6. In Raffile the obligation to conduct a fair trial was, as Pitchford J remarked at paragraph 32, “manifestly accepted by the United States.” In Elliot the evidence was that the Secretary of State was satisfied that the courts in Hong Kong would:-

Mr Hardy also relied upon the fact that Australia is not only a country designated as a Category 2 Territory but also designated for the purposes of Section 84 the 2003 Act. In those circumstances it was argued this court should assume that the appellant will obtain a fair trial. I am not prepared to make such assumption. Reluctant as I am to conclude that the appellant will run the risk of a flagrant breach of his rights enshrined in Article 6 I am equally reluctant to make any assumption based upon designation for the purposes of Section 84. It is quite impossible to know upon which basis the Secretary of State designates a territory for the purposes of Section 84.

Finally Mr Hardy argued that the facts were such that the appellant would not be able to avail himself of any of the defences identified in Section 233B. This seemed to me to be a submission that he had no defence. In my judgment it is not open to this court to dismiss the appellant’s argument on that basis. The government of Australia has not had to set out all the facts. Both in Lambert and in the cases before the European Court of Human Rights the court has been in a position to determine Article 6 points in the context of a factual matrix. This court is not in the same position and I am not prepared to dismiss the case on the basis that the defendant would not be able to avail himself of the defences to which the 1901 Act refers.

I conclude that the District Judge ought to have allowed an adjournment so that expert evidence could be adduced as to the proper construction and application of Section 233B(1)(c) and 233B(1A) of the Customs Act 1901 and Section 51(1) of the Bail Act 1978 (NSW). This court has power to order a rehearing pursuant to Section 104 of the 2003 Act whilst neither allowing nor dismissing the appeal (see also Pitchford J at paragraph 35 in Raffile (q.v.supra)).

Mr Summers faintly persisted in arguing that the appellant had been the subject of State endorsed entrapment. The appellant alleged that he had been tricked by a Mr Greg Adam into conduct which he would not otherwise have committed and that Mr Greg Adam was acting under the control, approval or at the very least, knowledge of either the Australian Federal Police or of the Customs Service.

The government of Australia produced an affidavit which asserted on behalf of the Australian Federal Police that no such information exists.

The appellant relied upon the fact that the affidavit made no reference, specifically, to the Australian Customs Service. The evidence of Mr Roderick Ramilo a Federal Agent employed by the Australian Federal Police is ample to rebut any suggestion of entrapment. There is no basis for this submission and I reject it.

For the reasons I have given above I would direct that the District Judge re-hear the issues relating to Section 87 and the alleged flagrant breach of Article 6 disclosed by Sections 233B(1)(c) and 233B(1A) of the Customs Act 1901 and by Section 51(1) of the Bail Act 1978 (NSW).

I agree that, in the absence of expert evidence on Australian law, the District Judge ought to have adjourned the hearing in order that such evidence could be obtained. In my judgment, it should extend beyond questions relating to the burden of proof and should include the meaning of “without reasonable excuse”. I therefore agree that there should be a rehearing before the District Judge as described by Moses J in paragraphs 28 and 32 of his judgment.

Until evidence of Australian law is forthcoming, it is premature to express a final view on whether, to use the words of Rose LJ in Elliot (at paragraph 24), there is “a clear risk of a flagrant denial of Article 6 rights in the requesting jurisdiction”. Whilst it is established law that to impose a legal burden of proof on the defendant contravenes Article 6.2 (see Lambert and the other cases referred to by Moses J), it does not necessarily follow that it would lead to a “flagrant denial” of Article 6 rights in the requesting state. After all, the terms of the Australian law are similar to those used in our Misuse of Drugs Act, albeit now “read down” to comply with the Human Rights Act. They do not impose a total reversal of the burden of proof. It is clear from the language of the Customs Act that the prosecution must prove possession. For my part, I can envisage circumstances in which, faced with serious social and criminal problems, a requesting state might have legislation which erodes the presumption of innocence in a manner which breaches Article 6 standards, but not flagrantly. This is a difficult area but it is important to give real meaning to the word “flagrant”. If we do not, we risk introducing a form of European imperialism into our extradition arrangements. At the moment, however, it is unnecessary and inappropriate to say more. The ball is back in the court of the District Judge.