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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> de Figueiredo -v- Commonwealth of Australia [2009] JRC 208A (03 November 2009) URL: http://www.bailii.org/je/cases/UR/2009/2009_208A.html Cite as: [2009] JRC 208A |
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Extradition - ruling in respect of a request made by the Government of Australia.
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Before : |
B. Shaw, Assistant Magistrate. |
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Between |
Philip Eric de Figueiredo |
Appellant |
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And |
Commonwealth of Australia |
Respondent |
Ruling in respect of an Extradition Request made on 6th February 2009 on behalf of the Government of Australia concerning alleged conspiracy to defraud, fraud and money laundering in the states of Queensland and Victoria (contrary to sections 5, 29D and 86(1) Crimes Act 1914; Sections 11.2(1), 135.1(1), 135.4(3), 400.3(1) and 400.4(1) Criminal Code of the Commonwealth 1995).
Extradition (Jersey) Law 2004, Articles 3, 15, 16, 19, 24 and 28.
Issues: Jurisdiction; Extradition (Jersey) Law 2004 Extradition Offences, Article 3, Article 15; Bars to Extradition, Article 16; Passage of Time, Article 19; Human Rights, Article 24; Physical or Mental Health Article 28.
Hearings held on 25th -26th June; 16th -17th September 2009.
Advocate M. St. J. O'Connell for the Appellant.
M. T. Jowitt Esq., Crown Advocate for the Respondent.
judgment
the assistant magistrate:
1. This is the first extradition application under the Extradition (Jersey) Law 2004 ('the Law') to be contested by a defendant. Thus both the prosecution and defence seek to have issues determined by the Court which have never before been the subject of judicial ruling under the Law.
2. Historically Jersey's extradition arrangements have been governed by the Extradition Acts of England and Wales. In 2003, following the European Framework Decision and the passing of the Extradition Act 2003 (EA) it was necessary for Jersey to enact separate legislation.
3. In many respects the wording of the Law is identical to that of the EA. However, Jersey is a distinct jurisdiction with its own laws and customs. Cases decided in the English courts may have persuasive authority, especially where legislation is very similar but, save where there is a decision of the Privy Council in a Jersey case, no English authority is binding on the courts in Jersey.
4. Mr Phillip De Figueiredo (born 27/7/1952) a British Citizen holding a Bailiwick of Jersey passport is a person whose extradition was requested by the Commonwealth of Australia on 29th January 2009 and the issuing of a certificate under Article 7 of the Law by the acting Attorney General for Jersey on 6th February 2009. A provisional arrest warrant was issued by me in this court on 30th December 2008. Mr. De Figueiredo appeared before this court on 31st December 2008. He was granted bail subject to conditions. After a substantial adjournment for preparation of his case, the extradition hearing began on 25th June 2009.
5. Mr De Figueiredo contests the extradition application. All procedural requirements are conceded. Accordingly, for the avoidance of doubt I find all requirements in order and resolved in favour of the Commonwealth of Australia
Issues
Jurisdiction
6. The Defence argue that there is a strong common law rule in English law (Government of India v Taylor and another [1955] 1 AC 491) and in Jersey following Bomford, Wallsley and Tucker that the courts in neither England nor Jersey will enforce the penal and revenue laws of another jurisdiction.
7. In R v Governor of Pentonville Prison, Ex p Khubchandani (1980) 71 Cr. App. R. 241, DC, this principle was applied where the evasion of fiscal liabilities was effected by fraud. The defence invite me to follow Khubchandani.
8. The defence also cite s 64(8) EA. This is as a statutory provision concerning tax related offences which is absent from the Law. The defence say this is circumstantial evidence that Jersey has a common law rule that will not allow extradition for tax offences.
9. Khubchandani was decided in 1980. At that time England and Jersey were governed by the same extradition statute. The defence argue that, therefore this must have been the common law position in Jersey. As the Law does not expressly overrule this common law rule, therefore it remains separate from and alongside the Law and is an exception to that law. These offences are tax matters therefore I do not have jurisdiction to deal with them.
10. The Prosecution argue that the Extradition (Jersey) Law is the law governing extradition in Jersey and the only source of the Magistrates jurisdiction. Khubchandani (a Divisional Court decision) was categorically not following in Chief Metropolitan Magistrate (Ex p Secretary of State for the Home Office) [1988] 1 WLR 1204, citing the reasoning of the House of Lords in Re Neilsen (1922) 37 CCC 32, which expressly found that the Magistrate's jurisdiction was founded on the statutes and that Khubchandani was wrongly decided.
Findings: Jurisdiction
11. The principle in Government of India v Taylor is well established in Jersey civil law. However, it would not appear that Khubchandani has ever been applied in any Jersey court. The case of Chief Metropolitan Magistrate has been cited with approval by Hamon (Commissioner) in In re Charlton [1993] JLR 360. The defence argue that as Charlton's case concerned interpretation of the provisions of the Evidence (Proceedings in Other Jurisdictions) Act 1975 as applied by the Evidence in Other Jurisdictions (Jersey) Order 1983 comments regarding Extradition are obiter and therefore not binding upon me, I agree.
12. The absence of an equivalent to S 64(8) EA in I find is Law irrelevant. S 64(8) does not create a power to extradite for tax related crime where none previously existed. On the contrary, it reads to me that extradition for tax related offences are already taking place and for the avoidance of doubt states that the two jurisdictions need not levy the same taxes for there to be 'conduct' in both countries.
13. Following the reasoning in Re Nielsen, if a common law restriction had existed and the States had wanted to retain such an exception to the Law I would have expected to see it listed in Article 18 along with political offences for which there has long been a convention not to extradite.
14. Khubchandani was expressly cited as being wrongly decided in the Chief Metropolitan Magistrate in 1988. It appears to me that the reasoning of the House of Lords in Re Neilsen is correct and I expressly decline to follow and to apply Khubchandani.
15. I find that there is no common law, or customary law rule in Jersey that Jersey will not extradite a person for criminal offences committed against tax authorities.
16. There has been no treaty incorporated into Jersey law referred to which would limit my jurisdiction.
17. I therefore find that the Law gives me jurisdiction to deal with the extradition request Mr De Figueiredo faces. The request relates to offences under the general criminal law where the victim is said to be the Australian tax authorities.
Extradition Offences
Conduct
18. Under Art 15(3) (b) I am required to determine whether the offence (and, in light of the Multiple Offences Order) each of the offences specified in the request is an extradition offence.
19. Art 3 sets out what can amount to an extradition offence.
20. Art 3 applies to the conduct of a person who is accused in a designated territory of an offence constituted by the conduct but has not been convicted of the offence. Mr De Figueiredo is so accused in Australia which is a category 1 territory under the Law. He has not been convicted (Article 3(1)).
21. Under Article 3(2)(a) I must determine whether the conduct occurred in the designated territory.
22. In considering the term 'conduct' Mr O'Connell argues that I am limited to the words used in the Australian charges ('the offence approach'). Mr Jowitt, however, says I should look at the conduct alleged in the documents constituting the request ('the conduct approach').
23. I have no doubt that 'conduct approach' is the correct following the House of Lords' exhaustive review of the issue in Norris v Government of the United States of America [2008] UKHL 16 (paragraphs 91-101).
24. The conduct approach applies to location as well as to the transposition exercise to which I will come later.
25. Conduct took place in Australia irrespective of the defendants' physical presence in the country if the effect of the conduct was intentionally felt in Australia (Office of the King's Prosecutor v Cando Armas and another [2004] EWHC 2019 (Admin). paragraphs 34-36).
26. The whole of the conduct need not be in the designated territory (Cando Armas paragraph 17). I accept and apply the reasoning in Cando Armas.
27. The usual criminal rules of conspiracy, complicity and joint enterprise apply.
28. The allegations of conspiracy are to defraud the Commonwealth of Australia or a Commonwealth entity such as the Commissioner of Taxation (Queensland charge 2).
29. This is clear from the charges themselves. It is also clear from the affidavits that Strachans client in these cases were Australian tax payers. Therefore the loss in these cases was intended to be felt in Australia and was actually felt there.
30. In any event in each of the conspiracy cases actions actually took place in Australia.
31. The Queensland charges 1 and 2 (dealt within the affidavit of Brown paragraphs 31-80) clearly show that the conspirators Adam and Glen Hargreaves and Daniel Stolen submitted false tax returns to the Commissioner of Taxation. The intention was clearly to deceive the tax authorities and fraudulently to reduce their tax liabilities.
32. I am satisfied regarding the Queensland conspiracy charges that both actual conduct and the intended effect took place in Australia.
33. The Victoria conspiracy charges 1, 2 and 4 are dealt with in the affidavit of Blanche, annexure CJB 2 paragraphs 7.1-7.2.28. Victoria Conspiracy charge 6 is detailed at paragraphs 8.1-8.2.44. These were also schemes to enable an Australian tax payer (Wheatley) to deceive the Australian tax authorities and so fraudulently to reduce his tax liability. Wheatley played an active role in Australia. Therefore, again, the effect of these offences was intended to be felt and was actually felt in Australia. An active part was also played in Australia. This conduct therefore took place in Australia.
34. Victoria charge 3 concerns allegations that Mr De Figueiredo and Philip Egglishaw were knowingly concerned with Glenn Wheatley in defrauding the Australian Tax authorities between 6th April 1994 and 23rd May 2001 by creation of a false loan.
35. Details of the activities of those concerned are found in Annexure CJB 2 of Mr Blanche's affidavit paragraphs 7.1.1 to 7.2.28
36. Victoria charge 7 concerns false invoicing to enable a false tax return to be made by Wheatley to the Australian tax authorities. Details are at CJB 2 paragraphs 8.1-8.2.44. In both cases Mr De Figueiredo is charged jointly with Mr Wheatley and others.
37. It is clear that some of the activities in these matters actually took place in Australia. Mr De Figueiredo is jointly charged with those actually operating in Australia.
38. In any event, whether Mr De Figueiredo or his co accused's actions were physically in Australia or not, it is clear that the alleged purpose of their activities was fraudulently to reduce Mr Wheatley's tax liability in Australia and actually did reduce that liability in Australia.
39. Additionally, the ordinary principles of joint enterprise apply. The defendant can commit a substantive offence in a country if he acts jointly and criminally with another who is physically in that country.
40. I therefore conclude that on the ordinary principles of joint enterprise and on the principle of intended effect in Cando Armas the conduct in Victoria charges 3 and 7 did take place in Australia.
41. There are three charges concerning dealings with the proceeds of crime; Queensland charge 3 (Brown paragraphs 81-110) and Victoria charges 5 and 8 (Blanche CJB2 7.2.22 - 7.2.27 and 8.2.45 - 8.2.51 respectively). Mr De Figueiredo is charged jointly with others in Australia in Queensland charge 3 and Victoria charge 8. Victoria charge 5 is that he aided and abetted, counselled or procured an offence in Australia.
42. All three charges relate to the removal from Australia of the proceeds of tax evasion occasioned by fraud. Funds were transferred to offshore accounts via various routes and the tax evaders were given control of those funds by the issue of credit or debit cards to enable them to draw on the accounts.
43. In each case, specific acts occurred in Australia and the usual rules as to joint enterprise and complicity apply.
44. Additionally, the effect of removing the funds from Australia, disguising it overseas and returning it to the tax evaders so that they could enjoy the benefit of the proceeds was intentionally felt in Australia (Cando Armas).
45. I therefore conclude that all the charges against Mr De Figueiredo took place in Australia for the purposes of Article 3.
Article 3(2) (b) Transposition
46. I must next consider under Article 3(2)(b) whether the conduct would constitute an offence or offences under the law of Jersey punishable with imprisonment or another form of detention for a term of 12 months or greater punishment, if it occurred in Jersey.
47. I refer to Norris (above) and Cox v Army Council [1962] 2 WLR 950. The correct approach is to look at the conduct of the defendant as alleged in the request documentation.
48. The usual rules of conspiracy, joint enterprise and complicity apply.
49. Jersey customary law follows the common law of England and Wales (Archbold 2008 para 2-34; R. v Sansom [1991] 2 QB 130). If a person in Jersey conspires with a person outside Jersey to commit an offence in Jersey, a Jersey court has jurisdiction to try such an offence.
50. In respect of substantive offences I intend to follow the Court of Appeal in England and Wales in R v Smith (Wallace Duncan)(No.4) [2004] 2 Cr App R 17, CA, in the absence of being referred to a Jersey authority on the specific point. Where a 'substantial measure' of the activities constituting a crime takes place within the jurisdiction, the Courts of England and Wales would have jurisdiction to try the offence. There is no need for the 'final act' to be within the jurisdiction. Where a substantial measure of the activities has taken place in Jersey the offence will be triable in Jersey.
Application
51. The Prosecution list of proposed Jersey equivalent charges is helpful but not obligatory. I am not restricted to those proposed charges. I must look to the conduct alleged (Norris).
52. Queensland charges 1 and 2 refer to one conspiracy. I understand that a change in the Law in Australia makes two separate charges necessary.
53. In order to transpose the conduct alleged with reference to these charges I would have to suppose that the defendant, who was not physically present in Jersey, agreed with Jersey tax payers to help them deceive the Jersey tax authorities.
54. On the common and well established principles of conspiracy (Archbold 2008 34-206) the defendant would have conspired outside Jersey to defraud the Jersey tax authorities within the Island and could therefore be tried for the offence in Jersey.
55. Australia also alleges that the conduct, jointly with Phillip Egglishaw and the Australian tax payers would constitute an actual fraud on the tax authorities. Although the false representation i.e. that the tax returns made represented the company's true taxable income, were made by the company directors in Australia (Jersey), the defendant (outside the Island) would still have been a joint principal if he had knowingly taken part in the deception with the intention of and actually causing, loss to the tax authorities. The defendant is said to have operated offshore structures which provided the tax payers with false or falsely inflated invoices, thus enabling them to represent to the tax authorities that annual profits were less than they actually were and therefore less tax was payable.
56. If transposed this would be a substantive fraud in Jersey ((Foster v Attorney General [1992] JLR 6. and AG v Michel and Gallichan [2006] JCA 082B), for which the defendant, as an accomplice or as a joint principal could be prosecuted in the Island.
57. This premise holds true of the conduct alleged in Victoria conspiracy charges 1,2 and 4. In these cases the defendant and others (outside Australia) are said to have conspired with Wheatley and Gregory in Australia to defraud the Commonwealth of tax revenues (Wheatley being an Australian tax payer). The mechanics differ but the principles are the same as in the Queensland conspiracies and would, if transposed to Jersey constitute conspiracy to defraud in Jersey for which the defendant could be tried in the Island. A single conspiracy charge would probably be put in Jersey in this case.
58. The conduct alleged in Victoria charge 6 if transposed would be triable in Jersey as a conspiracy in the same way.
59. The conduct alleged in Victoria charge 3 is a substantive fraud relating to a false business loan and interest payments created by the defendant and his co accused (outside Australia) for a tax payer in Australia. The tax payer was then able to represent to the tax authorities that his business income and therefore his tax liability were lower than they really were and less tax was paid.
60. Had the defendant been outside Jersey and engaged in the same conduct jointly with persons within Jersey the conduct would amount to fraud and the defendant triable in Jersey as part of a joint enterprise.
61. The conduct alleged in Victoria charge 7 would be a triable as a substantive fraud in Jersey in the same way.
62. I have to transpose the conduct subject of Queensland charge 3 and Victoria charges 5 and 8 to Jersey. In doing so I must suppose that the defendant was outside Jersey and he made arrangements for bank accounts to be set up outside Jersey. These accounts could be controlled by his clients in Jersey.
63. Monies were paid into these accounts which should have been or were due to be declared by the Jersey resident to the Jersey tax authorities.
64. The clients were given access to the money in those accounts by means of ATM cards issued to the clients by the defendant. The cards were accompanied by instructions as to how the cards were to be used.
65. The prosecution says the defendant would commit offences triable in Jersey under Articles 32(1)(a) and Article 32(1)(b)(i) Proceeds of Crime (Jersey) Law 1999.
66. The defence say that firstly, the money could not be said to be proceeds of crime because the fraudulent tax returns had not been made at this point; secondly, even if the money were proceeds of crime, the retention of funds was not in the Island, therefore there would be no jurisdiction in Jersey to try the offences.
67. Firstly, in Queensland charge 3 is the money proceeds of crime? The bank accounts were set up and became active from 1999 onwards (Brown paragraph 83). Substantial amounts were transferred between 2000 and 2005 (Brown paragraph 91).It was envisaged from the start of the invoicing scheme that there would be bank accounts for use of Adam and Glenn Hargraves and latterly for Stoten (Brown paragraph 61). Advice was given by De Figueiredo (paragraph 127) and his staff that the cards were to be used for ATM and not for point of sale transactions in the person's country of residence.
68. The allegedly fraudulent tax returns are said by the defence to have been submitted after the money had left Australia (or Jersey, in the transposition exercise) therefore it was not yet proceeds of crime.
69. The offence under Article 32(1)(a) is entering into an arrangement or being otherwise concerned in an arrangement whereby the retention or control of proceeds of crime is facilitated by concealment, removal, transfer to nominees or otherwise. The Article is very broadly drawn; it does not say how the retention etc. is to be facilitated.
70. It would appear that there was only ever one object of the false invoicing scheme; that was to reduce the appearance of profits and so cheat the tax authorities. It was always intended that the tax evaders would retain control of their profits when they accrued. I have no doubt that money which is not declared to the tax authorities in furtherance of a fraud will become the proceeds of crime.
71. It is not clear when exactly fraudulent tax returns were made which enabled the funds to be removed from the jurisdiction and later made available to the tax evaders. The monies could have been sent before or after the tax returns were made. The exact timing does not, in my view alter the criminality under Article 32(1)(a).
72. This was always a scheme to defraud the tax authorities and to launder the proceeds. Mr De Figueiredo is alleged to have helped to put the whole scheme in place. It is said he was actively concerned in the setting up of bank accounts and issuing of ATM cards. He knew that the money going in to those accounts either was or would shortly become proceeds of tax fraud because he was party to that continuing conspiracy to defraud along with the tax evaders. At the point of removal of the funds from the jurisdiction or the transfer to nominees he had already entered into an arrangement to launder that money.
73. The removal or transfer of funds which were not yet proceeds of crime was the first step in the laundering of those funds.
74. I am satisfied that the conduct referred to in Queensland count 3 would amount to an offence under Article 32(1)(a).
75. Would that offence, if transposed to Jersey, be triable in Jersey?
76. I return to Smith (Wallace Duncan). A Jersey court would have jurisdiction to try a case if a substantial measure of the offence occurred in Jersey. This offence can explicitly be committed by the 'removal from the jurisdiction, transfer to nominees or otherwise'. The defence contention that for there to be jurisdiction, the funds must be retained in the jurisdiction is directly contrary to the provision that retention can be facilitated by removal from the jurisdiction. In fact in cases of money laundering, the retention or control of the proceeds of crime is usually outside the jurisdiction in which the crime was committed. The legislature cannot have intended a Jersey court only to have jurisdiction where the proceeds of a crime committed in Jersey remained in the Island.
77. In addition, the act of removal must have taken place in Jersey, and it would have been completed when the funds left the Island.
78. Similarly a transfer to nominees must have begun in Jersey even if it was continued elsewhere.
79. In these particular circumstances control of the money returned to Jersey (Australia) in the form of access to the accounts by Jersey (Australian) residents using ATM cards arranged for them by the defendant. Therefore a substantial measure of the offences and indeed the completion of the control and retention would have actually occurred in Jersey, again giving Jersey jurisdiction to try the offences if transposed.
80. With regard to Victoria charges 5 and 8, money was apparently put at the disposal of the tax evaders by setting up bank accounts outside the jurisdiction , giving control of those accounts to the tax evaders and providing them with ATM cards so they could draw on the funds within the jurisdiction.
81. Again, the bank accounts were part of the scheme from the start. From the beginning, according to the Australian Government Mr De Figueiredo entered into an arrangement whereby the proceeds of crime would be used to put funds at the disposal of the tax evaders. In my view is likely that by the time the money was drawn from the accounts the false tax returns had already been made but the offence is entering into the arrangement and that arrangement was always an arrangement to make funds available to the tax evaders by means of the proceeds of their criminal conduct.
82. I therefore conclude that the provision of the bank accounts and ATM cards would constitute offences under Article 32(1)(b) Proceeds of Crime (Jersey) Law 1999 if transposed to Jersey.
83. Mr De Figueiredo need not have been personally in Jersey (Australia) for Jersey to have jurisdiction to try him. A substantial measure of the offences would have taken place in Jersey (Australia). Money was finally put at the tax evaders' disposal in Jersey (Australia)
84. Under the usual rules of jurisdiction and following Smith (Wallace Duncan) if necessary, I conclude that a Jersey court would have jurisdiction to try the defendant for conduct subject of Queensland charge 3 and Victoria charges 5 and 8 under Articles 32(1)(a) and 32(1)(b)(i) Proceeds of Crime (Jersey) Law if the conduct were transposed to Jersey.
85. I therefore conclude that the conduct in respect of all the charges would constitute offences under Jersey law as set out in Article 3(2) (b) of the Law.
86. Offences of Fraud and conspiracy to defraud are customary law offences the penalty for which is at large. Frauds and conspiracies to defraud public authorities of substantial sums of money frequently attract lengthy custodial sentences. Articles 32(1)(a) and 32(1)(b)(i) carry 14 years imprisonment.
87. Each of offences would be punishable in Australia with sentences of imprisonment of 12 months or more in accordance with Article 3(2)(c) (affidavits of Paul Huygens and Berdj Tchakerian).
88. I therefore find that all the offences for which extradition is requested are extradition offences under the Law and all Article 15 questions are answered in the affirmative.
Bars to Extradition
89. I now turn to consideration of the statutory bars to extradition contained in Article 16(1), and whether Mr. De Figueiredo's extradition to Australia is barred by reason of:
(i) the rule against double jeopardy;
(ii) extraneous considerations;
(iii) the passage of time ; or
(iv) hostage-taking considerations.
90. There appears to be nothing in the material presented in this case to suggest that there is any risk of double jeopardy; neither are there are any extraneous considerations nor are there are hostage-taking considerations. The defence ask me to find that there are any such bars to extradition in this case.
91. I therefore find that Mr. De Figueiredo's extradition is not barred by any of the reasons listed in Article 16(1)(a)(b)or (d).
92. The Defence argue that Mr. De Figueiredo's extradition is barred by reason of the passage of time.
93. Article 16(2) requires that the question be determined in accordance with Articles 17-20 inclusive.
94. Article 19 deals with the passage of time and provides that:-
95. Mr. De Figueiredo is not alleged to be unlawfully at large therefore Article 19 (a) is the only relevant consideration.
Admissibility of Evidence
96. A preliminary point was taken by the prosecution as to the extent to which I could take into account the evidence of Professor George Hampel Q.C. A.M. Professor Hampel is a retired Justice of the Supreme Court of Victoria and presently Professor of Advocacy and Trial Practice at Monarch University Law School. He was called by the defence as an expert in Australian law. His report was served on the defence and the Court on 20th August 2009. Professor Hampel attended the hearing on 16th September 2009.
97. The prosecution argued that only Professor Hampel's evidence as to the state of Australian law and procedure were outwith the knowledge of the Magistrate and therefore properly admissible as expert evidence. The remainder of his report was inadmissible opinion which was effectively a defence submission and could be argued by counsel in order to persuade the Magistrate to form such an opinion herself.
98. The defence argued that both the whole of Professor Hampel's evidence was properly admissible expert evidence and even if it was not, the strict rules of evidence do not apply in extradition cases. An example was given from the Government of the United States of America v Tollman [2008] EWHC 1177 Admin, DC case. A sworn statement and letter from a Mr. Hart-Gully (a Swiss lawyer) should also be admitted on the same principle. Judges in such cases often take into account matters not formally proved such as the political situation in foreign states. The Defence referred to the cases of Regina (Saifi) v Governor of Brixton Prison and another [2001] 1 WLR 1134, Re Orechovsky [2003] All ER (D) 47 and Lodhi v Governor of Brixton and another [2001] EWHC 178 (Admin).
99. The defence also argue that as the prosecution chose neither to require Mr. Hart-Gully to attend court for cross examination nor to call their own witness to contradict him, they must accept the contents of Mr. Hart-Gully's statement and letter.
Findings on Admissibility
100. In extradition cases evidence may be given as it is usually given in the Magistrate's Court that is; either orally, or as uncontested written evidence or as admissions under Article 9 and or Article 3 (Criminal Justice (Evidence and Procedure)(Jersey) Law 1998).
101. Under Article 116 Extradition (Jersey) Law evidence is also receivable by the Court if (inter alia) it purports to be authenticated by the oath or affirmation of a witness although nothing prevents a document which is not duly authenticated from being received in evidence.
102. I was satisfied that I could hear Professor Hampel's evidence in full. I could also receive Mr. Hart-Gully's letter and statement and give to both Professor Hampel's and Mr Hart-Gully's evidence such weight as I thought fit. Mr Hart-Gully's evidence was neither accepted by the prosecution under Article 9 nor was it an admission under Article 3. I am not bound by either the prosecution or defence interpretation of the contents of the documents.
103. After hearing evidence and counsel's submissions on 16th and 17th September Mr. O'Connell was given leave of the Court to serve his response to prosecution submissions in writing within 7days.
104. Subsequently Mr. O'Connell served a further statement from Professor Hampel and a series of submissions. Mr. Jowitt responded to Mr. O'Connell's points. I understand Mr. O'Connell objects to the extent of Mr. Jowitt's reply and contends that it should have been limited to comment on Professor Hampel's additional statement.
105. I have read the additional submissions. I note Mr. O'Connell's objections. I would point out that rejoinder from either counsel is not an opportunity to repeat submissions already made nor to introduce new evidence. It is an opportunity to correct factual or legal errors arising from the submissions of the other party. I will take all submissions into account but to a large extent they repeat and emphasise points already made and are not likely to persuade me that such points are any stronger the more they are repeated.
106. The provision of an additional statement by Professor Hamel was unusual in its timing. Usually the defence would have had to apply to reopen their case and to recall a witness who had given evidence. Perhaps Professor Hampel had left the Island by this time. However, the statement is affirmed by Professor Hampel and is receivable under Article 116 and I take it into account. It appears merely to expand upon his live evidence regarding the inadmissibility of hearsay evidence in these circumstances and does not take the case any further.
The Issues
107. I have to determine whether it is:-
(i) Unjust or;
(ii) Oppressive;
(iii) To extradite the defendant;
(iv) Due (and only due) to the passage of time.
108. The burden is on the defendant to establish injustice or oppression and the standard of proof is the balance of probabilities (Kociukow v District Court of Bialystock III Penal Division [2006] EWHC 56 (Admin)).
109. I have listened carefully to the arguments from both defence and prosecution and I have taken into consideration the material put before me.
The Defence Case
110. What is meant by 'Unjust?'
111. The defence argue that the test of prejudice and oppression due to the passage of time is set out by Lord Diplock in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, pages 782-3.
112. 'Unjust' I regards as being directed primarily at the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to the hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration.; but there is room for overlapping, and between then they would cover all cases where to return him would not be fair. As respects delay which is not brought about by the acts of the accused. What matters is not so much the cause of the delay but its effect; or rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude'.
113. Risk of prejudice in the trial includes sentencing were Mr. De Figueiredo to be found guilty.
114. The Court is not required to apply the Jersey test for a stay of proceedings for an abuse of process, Article 19 is different but clearly, abuse of process pleadings in the requested state, particularly if they are similar to those employed in Jersey would be a relevant factor in deciding whether it would be unjust to extradite the defendant (Simon Brown LJ Woodcock v Government of New Zealand [2004] 1 WLR 1979).
115. However, although safeguards in the requesting state against prejudice to the accused in the conduct of his case due to the passage of time were an important factor in considering whether it was unjust to return the accused, that did not mean that the court in requested state could absolve itself of its obligation under S82 [Article 19], of considering whether it would be unjust to return the accused, Tollman.
116. As Viscount Dillhorne in R v Governor of Pentonville Prison, Ex p Narang [1978] AC 247 (at page 276) referred to it not being impossible for the defendants to obtain justice in the requesting state and as Narang was subsequently applied in Kakis where Lord Diplock referred to "risk of prejudice" [in the defendant's trial], there was no distinction between the two phrases. I note that in Tollman (a case relied upon heavily by the defence) Moses LJ at paragraph 46 states "the essential question is whether a fair trial of the issues which arise can be achieved".
117. The defence maintain that "risk of prejudice" is the proper test.
118. The recent case of Gomes v Government of the Republic of Trinidad and Tobago [2009] UKHL 21 does not affect the authority of Kakis regarding injustice or oppression. It is concerned only with fugitives and any other comments are obiter. They cite Deputy Senior District Judge Wickham's judgment in Olsen as a demonstration that Gomes is regarded by one of most experienced extradition judges in England as applicable only to fugitive cases. Mr. De Figueiredo is not a fugitive.
119. Bennion on Statutory Interpretation (page 511)35 was referred to. As the Law was passed in 2004 the legislature must have meant 'unjust' to be interpreted in accordance with Lord Diplock's words in Kakis, the meaning in English Law at the time, (risk of prejudice) not the more recent case of Gomes (impossibility of a fair trial).
120. The defence stress the words of Moses LJ in Tollman (paragraphs 49 -50):-
121. It would be unjust to extradite Mr. De Figueiredo as set out in the defendant's own statement and as explained by Professor Hampel, in the light of Mr De Figueriedo's affidavit and Mr Hart-Gully's evidence.
122. There would be not only be a risk of prejudice but very clear injustice to Mr. De Figueiredo at his trial because of the passage of time. This includes the fact that his memory of events has faded and he cannot now recall details of specific events relevant to the dealings subject to the charges; members of staff will not be there to give evidence of the workings of the office, how busy it was and how Mr. De Figueiredo did not necessarily read documents he signed; no co- accused will be present either to give evidence on his behalf or to be cross examined to show that De Figueiredo did not play a knowing role in these matters; potential witnesses who could help his defence (Egglishaw, Jaton and Dupanloup) will not be available to tell of Mr. De Figueiredo's true role; if Mr. De Figueiredo had known he was a suspect in 2004 he could have applied for disclosure of prosecution material which might have been of help to him and he could have preserved documents which could have been relevant to his defence. Furthermore, as Australia accuses De Figueiredo on an equal footing with Egglishaw and others, Mr. De Figueiredo has no opportunity to distinguish his role, either at trial, or, if found guilty, upon sentence.
123. Professor Hampel's evidence, the defence say, confirms Mr. De Figueiredo will not be able to obtain a fair trial in Australia, as his abuse of process argument will fail so that there are, in effect, no safeguards in Australia to protect Mr. De Figueiredo.
124. Mr. Hart-Gully's evidence that the if Egglishaw, Jaton and Dupanloup were to give evidence, that evidence would be likely to assist Mr. De Figueiredo's defence, must be accepted as undisputed evidence as the prosecution chose neither to cross examine him nor to call evidence of their own.
125. If Egglishaw had been tried in Australia after his detention in 2004 he would now be available to be called as a witness to give evidence in support of De Figueiredo irrespective of whether he had been convicted or acquitted.
126. There is no burden on the defendant to show it would be unjust or oppressive to extradite him.
Oppression
127. There would appear to be no argument that oppression refers to the change in the defendant's circumstances that have occurred during the period to be taken into consideration (per Lord Diplock Kakis page 782). However, referring to a number of cases (In re Ashley-Riddle (unreported) 22 November 1993, DC, Cookeson v Government of Australia [2001] EWHC Admin 149, DC and the final decision in Tollman unreported) the defence contend that the court should also have regard to future hardship which the defendant would suffer if extradited.
128. Oppression would include the delay expected between the date of any extradition and the eventual trial date; the distance to Australia; the prospect of living alone there for at least 4 years (Mrs. De Figueiredo's fear of long distance flying might mean she could not go with him); separation from family, friends and the Island; no housing or welfare being available in Australia; the possibility of being refused bail.
Passage of Time
129. The defence say that the period to be taken into account must begin with the first allegation some 15 years ago but includes future hardship as above.
130. In addition the defence say that to extradite Mr. De Figueiredo to Australia for these offences would send shock waves through the Jersey financial services industry where so many men and women are employed. It could send a signal to those authorities in countries not sympathetic to Jersey's offshore financial services industry and could encourage the use of unscrupulous extradition requests to extradite innocent people.
Extradition
131. There appears to be no dispute that the consideration is whether it would be unjust or oppressive to extradite, not whether it would be unjust or oppressive to try the defendant (Simon Brown LJ Woodcock paragraph 21).
The Prosecution Case
Injustice and Oppression
132. The prosecution argue that the recent House of Lords decision in Gomes10 is now the leading case on injustice and oppression.
133. The statutory question of whether the passage of time had made it unjust extradite the defendant depended upon whether a fair trial was impossible and in determining that, regard had to be had to domestic safeguards in the requesting state. Gomes followed a line of authority from Woodcock, through Norris, Tollman is a Divisional Court decision. Gomes is a very clear House of Lords statement as to how injustice and oppression should now be viewed by the Courts as the law in this respect has moved on since Kakis.
134. Oppression was more than mere hardship and would be difficult for a defendant to establish.
135. These tests will not easily be met. There will be a presumption; even in countries such as Rwanda, that justice will be done.
136. Injustice or oppression must be substantiated, not merely asserted (Norris at paragraph 153, even Tollman paragraph 68).
137. Olsen does not show that the District Judge regards Gomes as authority only in respect of fugitives.
138. The question is whether it would be unjust to extradite him, not whether it is unjust to try him (Woodcock).
139. Under Article 19 the onus is on the defendant to establish that a fair trial is impossible due to the passage of time
140. Regard has to be had to the fair trial safeguards in Australia, thereafter the question of a fair trial is one predominantly, although not exclusively, for the for the Australia courts.
141. Australia is a first world country with a well-established abuse of process jurisdiction and the need to ensure a fair trial is a pillar of the Australian judicial system. The defendant cannot have rebutted the presumption that justice will be done.
142. The right to a fair trial under ECHR is met when the trial process affords the defendant an opportunity to argue his point, not to win it; a fair trial is one which does not disregard the rights of the defendant (Schenk v Switzerland (1988) 13 EHRR 242).
Passage of Time
143. Injustice or oppression must result from the passage of time. Is it unjust or oppressive now to extradite as a result of the passage of time since the alleged offences were committed and the date upon which the defendant can first raise the statutory bar (Kakis pages 779 and 782) Future hardships due to further passage of time are not Article 19 considerations.
144. The defendant has not even shown that the passage of time would prejudice his defence. He does not point to any evidence that would assist his defence which would have been available had his trial taken place in Australia soon after the events and which is now unavailable. Those witnesses will not give evidence either because of the strictures of Swiss law or for fear of self-incrimination or both. This has nothing to do with the passage of time.
145. The defence contentions are speculation and bare assertions of injustice.
146. The defendant says he might have been able to inspect documents or take proofs of evidence but fails to identify documents, potential witnesses or the evidence they might have given and how that would have been of assistance to his defence. Professor Hampel does not even know what evidence the missing witnesses might have been able to give. The comment of Mr. Hart-Gully regarding potential witnesses is not based on any evidence provided by Swiss witnesses.
147. The defence is lack of mens rea. The defendant says he did not know of any unlawful schemes. He signed documents but did not know their contents. This is not a matter of lost memory; Mr. De Figueiredo says he never had the requisite knowledge.
148. Mr. De Figueiredo's memory is not affected in that he can name others at Strachans at the time whom he says had a direct involvement and whom he implies were the offenders (if any). He is not prevented from giving his own evidence as to this at his trial.
149. Trial in the absence of co-accused may be an advantage as there will be no one to contradict his assertions that he played no knowing part in any wrong doing.
150. Evidence from others that he was not the architect (as opposed to the manager) of the schemes would not be a defence to the charges. If convicted he can give the court his own account of his role in mitigation and his co accused will not be there to contradict him.
151. The defendant was aware of a criminal investigation into Strachans in 2004. He had ample time to fix events in his memory and to gather any evidence there might be in favour of his defence.
Oppression
152. None of the defendant's references to hardship occasioned by extradition are due to the passage of time and therefore do not fall to be considered under Article 19. In any event, the hardship would not be sufficient to amount to a bar to extradition "the test of oppression will not easily be satisfied: hardship, a comparatively commonplace consequence of an order for extradition, is not enough" (per Lord Brown, Gomes, paragraph 31 at B).
Calculation of Time
153. Time should run, at the earliest, from 2004 when the investigation began. In any event the period should not extend to 15 years ago as the core of the criminality was concealment and the defendant cannot be allowed to pray in aid a period during which he concealed his offending from the authorities.
154. Time should actually be calculated from 2008 when the Australian authorities first had sufficient evidence to begin extradition proceedings (Maxwell-King v The Government of the USA [2006] 1 Ex LR 297).
155. The period ends when the defendant first has the opportunity to raise the statutory bar (Kakis page 782).
Evidence
156. I considered Mr. De Figueredo's affidavit.
157. Mr. De Figueiredo's defence would be, so far as can be seen, lack of mens rea. Professor Hampel and the defence concurred. Mr. De Figueiredo had signed several documents from which the prosecution would ask the jury to infer that he had the requisite mens rea in respect of the alleged offences.
158. Mr. De Figueiredo denies the offences. He says he had no role in the design and planning of the schemes subject of the charges. He received instructions from his superiors and passed those instructions to client administrators (apparently junior staff) who implemented and maintained the structures. Such client administrators handled the day to day running of the schemes and prepared documentation. He did sign papers but only after brief perusal.
159. Mr. De Figueiredo states that he would be prejudiced in the presentation of his case at trial because his memory had faded with the passage of time; he was no longer able to recall specific transactions; he could not call evidence from witnesses who worked in his Swiss office to show his true role as a mere administrator; he could not call them to show how the office operated and to support his assertion that he did not deal with the design and planning of these schemes nor with their daily administration. No one would be able to support him at trial when he says that he did not thoroughly read documents he was given to sign.
160. Mr. Egglishaw was the architect of these schemes. Mr. De Figueiredo would not be standing trial with any of his co-accused who could give evidence or be cross examined to reveal De Figueiredo's true role and his lack of criminal knowledge.
161. If Mr. De Figueiredo had had any idea in 2004 that he was likely to face investigation he would have secured legal advice then and might have required the authorities to disclose evidence which might have supported his defence. He could also have preserved documents which could have assisted him.
162. His account can be taken to imply that junior staff in his office knew what was in the documents he signed as they prepared them; therefore they are likely to have known what type of scheme the partners were involved in.
163. Thus Mr. De Figueiredo considered he would be unable to have a fair trial in Australia.
164. The affidavit also covers the defendant's respectable background, his good character, long marriage and family life. He tells of the adverse effect these proceedings had had so far and what effect extradition is likely to have upon him and his family.
Hart-Gully
165. An opinion in the form of a letter and a statement were received from Mr. Paul Hart-Gully, a Swiss lawyer. I had regard to both documents.
166. Mr. Hart-Gully states that in French the title 'directeur' held by Mr. De Figueiredo means a 'manager' in English, not director.
167. Due to legal provisions in Switzerland potential witnesses Egglishaw, Jaton and Dupanloup risk contravening Swiss law if they provide evidence for Mr. De Figueiredo at his trial.
168. Swiss law provides a witness with protection against self-incrimination as does Australian law. These witnesses would not be compellable.
169. All witnesses have been made aware of their positions and all have declined to give evidence.
170. Mr. Hart-Gully then he says "Based on my knowledge of Strachans SA, I can say that if any of the witnesses gave evidence, such evidence would be likely to assist Mr. De Figueiredo's defence".
Professor George Hampel
171. Professor Hampel gave evidence in person. I found Professor Hampel to be helpful witness who was well qualified to assist the court with questions of Australian law and practice which were outside the knowledge of the Court.
172. Professor Hampel told the Court that the right to a fair trial was a fundamental pillar of the Australia justice system. Australian courts have jurisdiction to stay proceedings for abuse of process. Delay and its effect on the fairness of a trial is a point frequently argued before the courts and ruled upon in such proceedings.
173. A stay of proceedings is rarely granted. The test is set very high indeed. It appears to me that this jurisdiction is similar to that exercised by the Jersey courts which in turn apply English authorities on the subject.
174. Mr. De Figueiredo would be able to raise all his points, including passage of time, loss of memory, absence of witnesses and lack of co-accused. In Professor Hamel's view he would be very unlikely indeed to succeed in an application for stay of proceedings but not bound to fail. Mr. De Figueiredo would be able to put his own defence because he could give his own account. Thus a fair trial was not legally impossible.
175. Transposing the circumstances of both Kakis' and Tollman to the Australian courts, neither defendant would, in his view, have been granted a stay of proceedings.
176. Mr. De Figueiredo's defence would in practice, be handicapped by his inability to call witnesses in his defence; his loss of memory of events up to 15 years ago; the lack of witnesses who could give evidence as to his role and the absence of co-accused who could either give evidence in his defence or be cross examined by him. Mr. De Figueiredo's defence was hampered to 'an incurable extent'.
177. The fairness of the trial in Professor Hampel's view included sentencing, if convicted. If there has been a trial, and the defendant wished to raise mitigation which is disputed by the prosecution AND that issue was not covered in the trial, the defendant must prove his mitigation on the balance of probability. Professor Hampel believed Mr. De Figueiredo would be prejudiced in this respect as he would be unable to demonstrate that if he was convicted of these charges he would have played a minor role as an administrator, not an architect of the schemes.
178. The prosecution had a prima facie case. Mr. De Figueiredo had signed certain documents from which the prosecution could invite the jury to infer that he knew what was going on and participated with the requisite intent. The defence would be lack of mens rea.
179. The trial judge could not remedy the deficiencies in Mr. De Figueiredo's defence as he could only leave to the jury the evidence they had heard, and could not comment on potential defence evidence which had not been called.
180. Australian judges no longer had the power to remove a case from the jury and direct a not guilty verdict if they were of the opinion that there was a risk of an unsafe conviction. Such cases must now be left to the jury and if convicted the defendant must appeal.
181. Professor Hampel accepted in cross examination that his view presupposes that the absent witnesses would in fact give evidence favourable to Mr. De Figueiredo. He does not know what evidence the absent witnesses could give. If their evidence implicated De Figueiredo he would be in a better position without them.
182. Due to delays in the Australian courts and the fact that Mr. De Figueiredo faced trial two different States it is likely to be around 4 years from arrival in Australia to the end of Mr. De Figueiredo's trials. If convicted the appeal process would be added to that and the Appeal Court is running about 12 months behind with its work.
183. Mr. De Figueiredo has good prospects of being granted bail in Australia but there is no provision for housing, social security or expenses while awaiting trial.
Findings
Injustice and Oppression
184. For over 30 years the leading case in England and Wales on passage of time as a bar to extradition has long been Kakis and in particular Lord Diplock's speech at pages 782-783 (above).
185. The cases of Gomes and Goodyer were heard together by the House of Lords in February 2009. Judgment was given on 29th April. The cases dealt with similar issues. Both defendants were fugitives.
186. In my view the House of Lords considered first the issue of fugitives and how far, if at all, a fugitive could rely on delay for which the requesting state might be responsible. Kakis was applied.
187. Their Lordships then went on to consider the issue of whether it was unjust or oppressive to extradite a defendant due to the passage of time and in particular the issue of a fair trial in the requesting state.
188. At paragraph 17 Lord Brown states .
189. At paragraph 31 Lord Brown turns to the ".
190. At paragraph 32 he expressly states that and refers to the developing abuse of process jurisdiction (presumably referring to foreign countries) over the last 30 years.
191. At paragraph 33 Lord Brown says, referring to Lord Bingham in Samuel Knowles Jr v The Government of the United States of America and The Superintendent of Prisons of the Commonwealth of the Bahamas [2006] UKPC 38, quoting Woodcock with approval:-
192. Lord Brown went on to express the view (paragraph 37 A) that he would not be surprised if the currently high number of extradition cases invoking the passage of time bar fell after this judgment.
193. Taking account of Lord Diplock's reference to the gravity of the offence alleged having a bearing on whether it was oppressive to extradite the accused, Lord Brown stated that "
194. I find that the House of Lords could not have been clearer in its intention to revisit the questions of injustice and oppression. When considering injustice under s82 the essential question when considering injustice is whether a fair trial is impossible in the requesting state.
195. Section 82 EA considerations are identical to the considerations under Article 19 in the present case. The ruling in Gomes was clearly intended to bind the lower courts of England and Wales and although not binding on this court, is highly persuasive and I intend to follow it.
196. Gomes follows the line of cases from Narang (page 276 paragraph E) in which Viscount Dillhorne spoke of the impossibility of a fair trial and although Lord Diplock referred to the risk of prejudice in Kakis, in 2007 Lord Bingham, in the Privy Council in Knowles (at paragraph 31) approved the Divisional Court's ruling in Woodcock in 2004 which again spoke of the impossibility of a fair trial.
197. However, the essential question for the court is not whether it would be unjust to try the defendant, but whether it would be unjust to extradite him (Simon Brown LJ Woodcock paragraph 19 at E). It is clear from Lord Brown's judgement in Gomes (at paragraph 32) that in considering whether a fair trial was impossible a court in the requested state must have regard to the safeguards for a fair trial afforded in the requesting state. There will be a presumption that justice will be done (even in category 2 cases under Extradition Act 2003) despite the passage of time and the burden would be on the accused to establish the contrary.
198. I am not persuaded that on a proper reading of Olsen, Deputy Senior District Judge Wickham was doing anything other than applying Gomes to determine whether Olsen was indeed a fugitive and therefore whether any of the period of delay could be taken into account. Gomes did indeed apply Kakis with regard to fugitives. At paragraph 12, she again refers to Gomes and, in case she is wrong on the fugitive point, applies Gomes on the oppression point.
199. I am satisfied that when considering whether it would be unjust to extradite the defendant due to the passage of time I should look to Gomes and consider whether an fair trial is impossible in Australia, bearing in mind Australia's safeguards in domestic law against a trial rendered unfair due to the passage of time.
Australian Safeguards
200. Australia is a first world jurisdiction and the concept of a fair trial is a fundamental pillar of the legal system. There is an abuse of process jurisdiction similar to that in Jersey which in turn is similar, I believe, to that in England and Wales.
201. Australian judges regularly hear applications for a stay of proceedings as a fair trail is said to be impossible due to the passage of time or for some other reason. I have no reason to believe they are not fully competent to deal with them.
202. Mr. De Figueiredo will have every opportunity to make his case to an Australian judge who will be better able to assess the case against Mr. De Figueiredo as he will be aware of all the aspects of the case. It is not, in any event, for this court to determine whether it would be unjust to try Mr. De Figueiredo, the question is whether it would be unjust to extradite him due to the passage of time.
203. Mr. De Figueiredo's right to a fair trial under Article 6 ECHR is determined for these purposes by whether he can argue his case on the fairness of the proceedings, not whether he would win it (Schenk). I am satisfied he would be able to so argue.
204. An application by Mr. De Figueiredo to stay proceedings as an abuse of process may fail but it is not bound to do so (Professor Hampel). If an Australian judge refused such an application he would be satisfied that the defendant could have a fair trial.
205. The sentencing procedure in Australia is also, to my mind, covered by the Australian fair trial principle. Were he to be convicted in the absence of co-accused, Mr. De Figueiredo is less likely to be contradicted as to his role in the offences. I do not accept that a fair trial is impossible on this ground.
206. Mr. De Figueiredo may not be able to put his case as he would like to but that is not the same as saying that it would be impossible for him to have a fair trial.
Period of Time
207. The Law sets the period of time as beginning with the date of the offence(s). Where, as in this case, the offences are said to have taken place over many years and been concealed by the defendant, the prosecution assert that the defendant cannot pray in aid the period of time during which his crime was undiscovered due to his own concealment. The very nature of tax evasion schemes is secrecy. Maxwell-King refers to the period starting when the authorities in a position to prosecute but I can see no statutory basis for this.
208. Woodcock [2004] was concerned with sexual offences dating from the early 1980s which were presumably concealed by the defendant. He left New Zealand and settled in UK. The point about concealment was not argued but it appears that the period taken into account was the 20 years since the commission of the offences.
209. I will therefore take the relevant period as beginning in 1994. The concealment of the crimes would go to whether it is unjust to extradite the defendant due to the passage of time, not the period under consideration.
210. The end point of the period to be considered is disputed. The prosecution say it is the date upon which the defendant first had the opportunity to raise the bar (16th September 2009 in this case). The defence say future oppression and injustice can be considered and cite a number of cases (above).
211. I am in no doubt that matters which may or are even likely to occur in the future cannot be taken into account under Article 19. The end date for the passage of time is when the defendant first had the opportunity to raise the issue at the extradition hearing (for example Kakis page 782 and Gomes paragraph 38) with possible allowances should the defendant appeal relying on evidence that was not available at the extradition hearing.
212. This is clear from the reports of many of the cases referred to and to the wording of the statute itself.
213. A proper reading of Tollman [unreported], Ashley-Riddle, Cookeson and Davis and another v Court of Instruction No 2 Benidorm, Alicante [2008] 1 WLR 2593 show that the status of the defendant or a dependant relative regarding matters such as health or education had changed significantly since the date of the offences. The question is whether it would be unjust or oppressive NOW to extradite the person in the light of changes which have occurred since the date of the offences and would not have occurred before the trial had the defendant been tried soon after the date of the offences (Kakis above).
214. Hardships the defendant may suffer in the future as a result of extradition are not Article 19 considerations. They can, however, be taken into account when considering Human Rights. Addressing a question posed by Mr O'Connell: if it were to take 20 years to try the defendant in Australia, his right to a fair trial within a reasonable time under Article 6 and his right to family and private life under Article 8 would fall to be considered, not injustice or oppression due to the passage of time under Article 19.
Application
Absent witnesses
215. The absence of witnesses referred to by Mr. De Figueiredo could only affect a fair trial if it could be shown that they were likely to give evidence in his defence. He would also have to show that they were unavailable due to the passage of time, that is to say they would have been available had the trial taken place soon after the date of the offences but are now unavailable.
216. The defendant has failed on both counts. He has put forward nothing but speculation as to what absent witnesses might say on his behalf. He must put forward some material which shows that evidence is no longer available (Norris, paragraph 153, Tollman, paragraph 68). He relies on Mr. Hart-Gully's statement that he has spoken to the potential witnesses Egglishaw, Dupanloup and Jaton ('the Swiss evidence') and "from his knowledge of Strachans SA" if any of the three had given evidence "such evidence would be likely to assist Mr. De Figueiredo's defence". There is no reference to any evidence they could in fact give. No one knows what they would say. Mr. Hart-Gully does not say that he has taken statements from them, nor that it is their accounts which lead him to make the above statement. This evidence was received under Article 116, it says what it says. I am not bound to accept the defence contentions as to the sufficiency of the statement or their interpretation of it. I find that this is a mere assertion. It is not sufficient to establish that there is any Swiss evidence, let alone that such evidence would assist Mr. De Figueiredo. There is simply no account of what that evidence would be should anyone be prepared to give it. Even if these witnesses did have evidence in favour of Mr De Figueiredo that they were willing to give, there is no indication that it is the passage of time that has deprived Mr De Figueiredo of such evidence.
217. Mr. De Figueiredo implies that these witnesses knew far more about the tax schemes than he did; Mr. Egglishaw was the partner who set up the schemes, Mme Dupanloup and M Jaton had day to day responsibility for the schemes. They drafted the letters he says he barely read. It would seem to me that these witnesses may equally give evidence against Mr. De Figueiredo, seeking to shift blame from themselves. Their absence may actually be beneficial to Mr. De Figueiredo.
218. The evidence which is unavailable to Mr. De Figueiredo would have been similarly unavailable had the trial taken place 15 years ago. These witnesses expressly will not come because they risk breaking Swiss Law by revealing 'business secrets' according to Mr Hart-Gully.
219. It is equally likely, given what Mr De Figueiredo says about them, that they do not give evidence either for fear they will incriminate themselves or for fear they will be arrested by the Australian authorities should they set foot in the country.
220. In neither case is evidence unavailable due to the passage of time.
221. The defence say that had Mr. Egglishaw been prosecuted in 2004 he would now be available to the defence. Firstly there is no basis to assume that the Australians would have had sufficient evidence to prosecute Mr. Egglishaw in 2004. They seized his laptop at that time but this has been a complex international investigation. Tax fraud is fundamentally secretive, that is the point of tax fraud. Where dealings are kept secret and a court comes to examine the question of injustice, a defendant should not be able to pray in aid delay cause by that concealment.
222. It is mere speculation that Mr. Eggilshaw could have been tried in 2004. There can be no argument that Mr. De Figueiredo could actually have been tried in 2004, or indeed in 1994 as the secretive nature of the tax schemes ensured that the Australian's nature of the tax schemes ensured that the investigation would be lengthy and complex. It was only in late 2008 that the Australians obtained sufficient evidence to prosecute Mr. De Figueiredo. He was arrested promptly thereafter.
223. In any event, there is nothing to say that even if Mr. Egglishaw had been prosecuted in 2004 that he would be willing to give evidence or that such evidence would have been favourable to Mr. De Figueiredo. Mr. Egglishaw would still be subject to the Swiss law prohibition on divulging business secrets were he to give evidence and therefore Mr. Hart-Gully's advice not to give evidence is still likely to have been followed.
Other Office Staff
224. Mr. De Figueiredo can give his own account of his position in the office and his dealings with the tax schemes. No one will be there to contradict him. Other office staff would not be able to say whether he understood the contents and purpose of the correspondence he signed. Only he knows that. These members of staff presumably could come to give evidence if that would not offend against the Swiss notion of -�business secrets'. If they are prevented by Swiss law they are not unavailable due to the passage of time.
Loss of Memory
225. Mr. De Figueiredo's lack of memory of the tax schemes and of documents he signed does not persuade me it would be unjust to extradite him. Mr. De Figueiredo's defence is lack of mens rea. It does not matter whether he has forgotten about those matters as his case is that he never knew that anything dishonest was going on; for example, if he never read the letters properly it cannot matter that he has forgotten about them.
226. Tax fraud is not an offence which happens in a brief moment such as a drug deal. It is an offence which is usually evidenced by documents and loss of memory of specific actions and conversations tend to be less relevant. In this case a good deal of documentary evidence is available. If Mr. De Figueiredo says he did not know what was going on, it is difficult to see how lack of memory would prejudice his defence.
Injustice
227. The procedural safeguards in Australia to ensure a fair trial are similar to our own. I am not persuaded that a fair trial would be impossible in Australia due to the passage of time. Nor am I even persuaded that a fair trial would be compromised due to the passage of time. If the integrity of the trial were to be compromised Australia has sufficient safeguards to ensure a fair trial.
228. I do not conclude that it would be unjust or oppressive to extradite Mr. De Figueiredo due to the passage of time. The defence have not shown that a fair trial is either impossible, or even prejudiced due to the passage of time. Nor Am I persuaded that it would be oppressive to extradite Mr. De Figueiredo due to the passage of time.
Oppression
229. With regard to whether it would be oppressive to extradite Mr. De Figueiredo due to the passage of time I have considered the submissions and the evidence presented. How does Mr. De Figueiredo's situation now make it oppressive to extradite him due to the passage of time? What, if anything, has happened since 1995 which would make it oppressive? Mr. De Figueiredo's children are grown up; his wife is suffering stress due to the proceedings; his own health has been somewhat affected too; there has been stress and embarrassment for the family as a whole. Events which have taken place to date, distressing as they may be, do not amount to oppression. They are the almost inevitable consequences of extradition proceedings and are no bar to extradition.
230. I have already found that I cannot look to future hardship under this heading. If I am wrong on that point, I expressly find that the future hardship put forward by Mr. De Figueiredo would fall far short of the test of oppression referred to in Gomes, which will not easily be met.
231. I therefore conclude that it is not unjust or oppressive to extradite Mr. De Figueiredo due to the passage of time and answer all questions in Article 16, as determined in accordance with Article 19 in the negative.
Human Rights
232. I now turn to consideration of Human Rights.
233. Mr. De Figueiredo is not a convicted person and Australia is a category one territory. Article 21 therefore directs that I should next consider under Article 24 whether extradition would be compatible with the Convention Rights within the meaning of the Human Rights (Jersey) Law 2000 (the Article 24 question)
234. Human Rights were not separately pleaded by the defence at the hearing itself but were referred to in later written submissions. The arguments concerning oppression were repeated for consideration under Article 6 (the right to a fair trial within a reasonable time) and Article 8 (the right to respect for family and private life). I therefore assume that it is conceded that extradition will be compatible with Convention Rights except in so far as Articles 6 and 8 may be engaged.
235. I have nevertheless considered the Article 24 question, which applies to all Convention Rights, in the light of the material and submissions presented to me.
236. I see no grounds at all for an argument on any rights other than Articles 6 and 8 and conclude that extradition would not be incompatible with any other of those Convention Rights.
237. A fair trial is at the heart of the Australian judicial system. Mr. De Figueiredo will have an opportunity to argue for a stay of proceedings due to delay or any other unfairness with regard to his trial (Schenk).
238. A fair trial must be within a reasonable time. What is reasonable depends on the nature of the case. This appears to be a complex case involving evidence from several jurisdictions including China. Such cases will inevitably take much longer than simple cases triable summarily. Mr. De Figueiredo faces charges in two separate States and two trials will have to be held. In Professor Hampel's view it will probably take 4 years from arrival in Australia to verdict and (if convicted) sentence even with direct case management by a judge. There would be further delay if appeals were lodged following conviction. Professor Hampel considers Mr. De Figueiredo is likely to be granted bail. If bail were refused, the trial would take place sooner. I do not find that this would constitute unreasonable delay bearing in mind the type of case and its complexities. Mr. De Figueiredo's Article 6 rights would not be infringed.
239. The correct approach to considering Article 8 rights is set out by Laws LJ in R (Bermingham) v Director of the Serious Fraud Office [2006] EWHC 200 (Admin) at paragraph 118. The question "is the interference with family life proportionate to the legitimate aim of extradition?" Where a proposed extradition is properly constituted according to the domestic law a wholly exceptional case would have to be shown to justify a finding that the extradition, on the particular facts would be disproportionate to its legitimate aim.
240. Extradition will almost always interfere with a person's private and family life and Mr. De Figueiredo's situation is no exception. He has told the court of the disruption and distress already caused by these proceedings and the hardships and possible separation from his wife likely to be caused by a prolonged period in Australia. All these matters were put forward under the Article 19 oppression argument.
241. I am satisfied that any such interference with Mr. De Figueiredo's Article 8 rights is in accordance with law and has a legitimate aim, namely the prevention of crime.
242. There is a strong public interest in bringing those properly accused of extradition crimes in a foreign country to trial in that country. Jersey has international obligations which it must honour. The crimes in this case are serious international tax fraud and money laundering and I find that extradition is a necessary and proportionate step to meet the need in a democratic society to bring Mr. De Figueiredo to trial in Australia.
243. If Mr. O'Connell's argument that to extradite Mr. De Figueiredo would send shock waves through the Jersey financial services industry has any relevance at all, perhaps it is relevant here and I refute it in the strongest terms.
244. It is a legitimate aim in a democratic society to prevent crime, and offences such as tax fraud and money laundering are particularly prone to being committed across international boundaries. The States of Jersey passed the Extradition (Jersey) Law 2004 in furtherance of its international obligations and the objective of the Law is clear, namely to extradite to foreign countries those properly accused of extradition crimes. There is no merit at all in this argument. To refuse extradition on this ground would be perverse, unlawful and a subversion of the clear aims of the legislation.
245. There is no evidence before me that Mr. De Figueiredo's physical or mental condition would make it unjust or oppressive to extradite him and thus I find no bar to extradition under Article 28 EJL.
246. I now send this case to the Attorney General for a decision as to whether Mr. De Figueiredo will be extradited.
