NSW father and former US Marine pilot fails in appeal to halt extradition to US

The NSW father of six, now 55, moved to Australia, renounced his US citizenship and became an Australian citizen in 2012. Until 2002, Daniel Edmund Duggan was a member of the United States Marine Corps, where he became a fighter and instructor pilot during his 13 years of service. He lived in Australia from 2005 to 2014, having founded a joy flights business named Top Gun Tasmania.

In October 2022, Duggan was arrested in Orange, NSW, upon request from the US and since, has been imprisoned in Goulburn’s Supermax prison, a maximum-security facility. Duggan faces four US charges that might result in a sentence of up to 65 years in prison, from arms trafficking to money laundering, relating to events that took place between 2009 and 2012 in South Africa.

On 28 November 2022, Duggan’s defence lawyer at the time, Dennis Miralis told media that Duggan was wrongly classified and made a request for the Attorney General to release him, adding that “foreign interference” by the US government was resulting in unduly harsh treatment by Australian authorities.

The Australian Government processes all incoming and outgoing extradition requests in accordance with the Extradition Act 1988 (Cth).

Avinash Singh is the Principal Lawyer of Astor Legal.

He points out that Article 7(3)(c) of the Treaty on Extradition between Australia and the United States of America that came into force on 8 May 1976, as amended by the Protocol done at Seoul on 4 September 1990, sets out that the standard of proof for an extradition request only requires a description of facts, “setting forth reasonable grounds for believing that an offence has been committed and the person sought committed it”.

Singh says, “This means that the US only needs to provide sufficient evidence for a trial, not a conviction. The reasoning behind this, is that whether the person is guilty or not guilty of an offence is a matter for the US court conducting the trial. The Federal Court conducting an actual hearing into whether Duggan is guilty of the offence would be inconsistent with the purpose of the extradition.”

To this point, he explains, Section 19(3)(5) of the Extradition Act 1988 (Cth) sets out that in extradition proceedings, the person being extradited, “is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence”.

Singh says, “A good analogy for this would be the difference between the standard of evidence police require to charge a person, compared to the standard of evidence required for a court to find that person guilty.”

On 16 April, Justice James Stellios rejected the argument from Duggan’s lawyers that the Extradition Act required any overseas charges to match equivalent charges in the jurisdiction that received the request at the time of that request. Justice Stellios quotes the Extradition Act which says: “courts may determine whether a person is to be, or is eligible to be, extradited, without determining the guilt or innocence of the person of an offence”.

Duggan’s lawyers had also tried to argue that since the events in question took place in a third country, this also proved an obstacle to extradition.

According to media investigations, Duggan moved to Beijing in 2014 to work as an aviation consultant where he cooperated with Chinese businessman Su Bin to provide expertise to a South African flight school, the Test Flying Academy of South Africa (TFASA). In November 2022, Reuters reported that Bin’s role was to arranged for Chinese Peoples Liberation Army pilots to undertake TFASA training courses while Duggan undertook the training of Chinese pilots for TFASA. The Beijing address that Duggan and Bin shared during this period appeared on the US Entity List in August 2014. Bin was arrested in Canada in 2014 and jailed in the US in 2016 for his role in a hacking case that involved the theft of US military aircraft designs. That same year, Duggan renounced his US citizenship, backdated to 2012, at the US embassy in Beijing.

Singh tells LSJ Online that Section 349(a)(5) of the Immigration and Nationality Act (INA) allows a United States citizen to, “make a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State.”

He says, “However, renunciation of US citizenship generally cannot be backdated to a previous date. To this point, under Section 358 of the INA, the renunciation of United States nationality does not take effect until the Department of State approves a Certificate of Loss of Nationality of the United States.”

Therefore, despite Duggan’s renunciation of his US citizenship, Singh says, “former U.S. citizens remain subject to possible prosecution for crimes which they may have committed against United States law, or escaping repayment of financial obligations.”

Backdating of the renunciation of Mr Duggan’s citizenship may have been an effort to avoid prosecution by the US, Singh says.

Nonetheless, he adds, “The indictment alleges he travelled frequently between Australia, the United States, China and South Africa between 2009 and 2012. Duggan’s alleged violation of an arms embargo imposed on China by the United States also included providing aviation services in China in 2010, and providing an assessment of China’s aircraft carrier training. These dates are prior to even the backdating of his US citizenship renunciation.”

In March 2024, Duggan’s lawyer Bernard Collaery made a submission to then Australian Attorney General Mark Dreyfus. The final decision on extradition will rest with current Attorney General Michelle Rowland, pursuant to a court hearing Duggan’s extradition case.

Extradition documents lodged by the US with Australia’s Federal Court indicate that messages retrieved from Su Bin’s electronic devices show he paid for Duggan’s travel from Australia to Beijing in May 2012.

According to Reuters, Collaery’s submission in 2024 claimed that Duggan had asked Su Bin to help source Chinese aircraft parts for his Top Gun business. Further, Collaery stated, both the Australian Security Intelligence Organisation (ASIO) and US Navy criminal investigators were aware of Duggan’s role in training pilots for Chinese state aviation company AVIC, and met him in Australia’s Tasmania state in December 2012 and February 2013, his lawyer wrote. AVIC was blacklisted by the US government in 2016 as a Chinese military-linked company. In Collaery’s submission, he claimed that Duggan was only aware of AVIC as an employment recruitment firm rather than having “improper connections to Chinese agents”.

Singh says, “Mr Duggan’s argument that the allegations that he trained Chinese military pilots in South Africa mean that there are questions over whether the US or Australia have jurisdiction was rejected by the Federal Court.”

He explains, “Australia does have the ability to prosecute persons for events that occurred overseas. Examples of these offences include child sex tourism offences under Division 272 of the Criminal Code 1995 (Cth) as well as certain money laundering offences. Further, the extradition proceedings were not concerned with whether Mr Duggan would be convicted of the offences, merely that there was a sufficient basis for a trial.”

If Mr Duggan is extradited, he can make this jurisdictional argument during his trial in the US. Singh says, “As it is legal argument, it is likely to be determined in pre-trial arguments before the trial judge. If he is successful and the US court finds it has no jurisdiction, the proceedings will be dismissed.”

Collaery gave a statement to LSJ Online, that in part said: “PM Albanese is supporting a US prosecution of an Australian accused of supporting China’s economic airline growth as a declared adversary of the US. Since when has Australia adopted the Presidential Executive Order that China is a declared adversary? The Australian Government is playing a double game with an innocent Australian citizen and his family.”

Australia-US extradition treaty

The 1974 Extradition Treaty between the US and Australia originally provided that a request must be accompanied by “such evidence as, according to the laws of the requested State, would justify [the fugitive’s] trial or committal for trial if the offense had been committed there.”

For that reason, probable cause under Australian law was sufficient for the United States to process incoming extradition requests from Australia. A similar reciprocal standard was established in the 1990 Protocol so that requests in either direction would be assessed under similar burdens of proof. Article 7 of the Protocol establishes a “probable cause” standard in both countries.

In the US Senate Committee’s report on the Protocol, the Senate printed the “formal executive branch representation” as to the meaning of the Protocol, as follows:

The protocol will also reduce the evidentiary burden the United States must meet when making requests under the 1974 treaty. Article [XI] of the 1974 treaty states that extradition shall be granted only if the evidence is sufficient to justify the fugitive’s committal for trial. . . . Article 7 of the protocol should free the United States from this much higher standard by creating a new and different rule. . . . The negotiators anticipate that courts in the United States will continue to review Australian extradition requests for probable cause, while Australian courts will adopt a new standard of review which is much closer to probable cause than to a prima facie case.

In September 2005, there was a formal correspondence between the US Department of Justice, Mary Ellen Warlow, and then Director of Andrew Kristjanson, then Senior Legal Officer, Extradition Unit, International Crime Branch in the Attorney-General’s Department.

This letter detailed the nature of “probable cause” relating to extradition requests, providing numerous precedents for her argument. “This is consistent with longstanding U.S. law, under which the courts have made clear that an extradition hearing is not a criminal trial; its purpose is merely to decide “probable cause,” not guilt or innocence,” the letter stated.

Warlow concluded: “Thus, when reviewing foreign extradition requests, U.S. courts will review the request to see if it demonstrates that reliable evidence exists in the requesting state to prove that the fugitive committed each offense for which extradition is requested. This demonstration must include more than just a statement of the facts. The specific source of evidence for the facts must also be described or included so that the U.S. court can evaluate its reliability. But the evidence need not be of the same quality or quantity as would be required to support a conviction after trial.”

Singh says the only avenues left for Duggan are to appeal to the full bench of the Federal Court within 28 days.

“If he does not file an appeal, then the only further avenues to avoid extradition would be asking the Attorney-General to refuse the extradition. Generally, the Attorney-General would only refuse the extradition if there were significant humanitarian grounds. Common examples of humanitarian grounds include the risk of the death penalty, an unfair trial or any exceptional personal features of Mr Duggan.”

He adds, “In Mr Duggan’s case, it seems unlikely that the Attorney-General would refuse extradition, as there do not appear to be any pressing humanitarian grounds.”

Main image: Placards are seen prior to the extradition hearing of Daniel Duggan, at Downing Centre Local Court, in Sydney, Friday, May 24, 2024. Former US military pilot Daniel Edmund Duggan once worked in China as a flight instructor and now faces extradition to the United States over unknown charges. (AAP Image/Bianca De Marchi)