Case: Johnson v Miller [1937] HCA 77 ; (1937) 59 CLR 467
Outcome: applied
There may be differences between Finnish law and Australian law as to duplicity in bringing criminal charges: see Johnson v Miller [1937] HCA 77 ; (1937) 59 CLR 467. However, in relation to an equivalent Australian offence for the purposes of s 16(2)(a)(ii) it was essential for the material before Senator Ellison to identify particular conduct of Mr Tervonen or its equivalent, which would have constituted, without duplicity, an offence here. The particular acts or omissions of Mr Tervonen in placing an order needed to be identified, together with the basis on which that conduct could have amounted to the obtaining of a valuable or financial advantage by deception contrary to s 178BA of the Crimes Act 1900 (NSW). 56 However, there was a lack of any particularity in the material on which Senator Ellison was asked to form an opinion that s 178BA of the Crimes Act would have been contravened had Mr Tervonen engaged in the same or equivalent conduct in New South Wales. In a broad way, the CDPP's summary suggested a connection between Mr Tervonen and others in misleading third parties. But, the CDPP did not set out who lacked an intention or ability to pay for the goods, or what Mr Tervonen's role was in relation to the formation of that intention. Given that it is implicit in the CDPP's summary that some goods were either actually paid for or no loss was suffered as a result of the order, there may have been a real issue about the proof of any preliminary intention not to pay in a particular instance and whether a particular company or companies was deceived into supplying goods. A company that was ultimately paid in full for goods it sold or which never delivered goods would hardly have conferred a financial advantage on the recipient by means of the deception. As Dixon J said in Johnson v Miller 59 CLR at 487: 'Prima facie, but one offence can be proved under one charge. For, except to prove intent or system and to exclude accident or mistake, evidence that accused persons committed other like offences is seldom relevant to the issue of guilt. But, if the present case fell within the prima facie rule, plainly to admit evidence of thirty distinct offences would be contrary to law, and the fact that each satisfied the description contained in the complaint could afford no justification for such a breach of so important a rule.' 57 This passage highlights the necessity that the facts must be stated in such a way that the Minister can be satisfied that the particular conduct, being acts or omissions of the person whose extradition is sought, would have been sufficient to constitute an extradition offence in relation to Australia. Dixon J explained that a prosecutor must identify not only the legal nature of the offence with which a defendant is charged, but also the particular act, matter or thing alleged as the foundation of the charge: Johnson v Miller 59 CLR at 489-490; see too John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42 ; (1987) 163 CLR 508 at 520-521 per Mason CJ, Deane and Dawson JJ; see Williams 157 FCR at 298 [50]. The position is similar in respect of European arrest warrants: Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31 at 52 [48] per Lord Hope of Craighead with whom the rest of the House agreed on this issue: see at 39 [2], 58-59 [71], 59 [72], 61 [82].