FEDERAL COURT OF AUSTRALIA
Liem v Republic of Indonesia [2017] FCA 1303
ORDERS
NSD 855 of 2017 | ||
RONNY LIEM Applicant | ||
AND: | REPUBLIC OF INDONESIA First Respondent MINISTER FOR JUSTICE (COMMONWEALTH) Second Respondent A MAGISTRATE OF THE STATE OF NEW SOUTH WALES Third Respondent | |
DATE OF ORDER: | 10 November 2017 |
THE COURT ORDERS THAT:
1. The amended originating application be dismissed with costs.
2. Pursuant to s 21(2)(a) of the Extradition Act 1988 (Cth), the orders made on 18 May 2017 by the third respondent, Magistrate Price, pursuant to s 19(9) of the Extradition Act 1988 (Cth), be confirmed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Introduction
1 On 23 January 2017, the Republic of Indonesia requested the extradition of Mr Ronny Liem. Indonesia’s extradition request arose out of allegations of embezzlement and money laundering. Mr Liem is alleged to have obtained some 134 cheques, totalling the equivalent of approximately AUD $13 million, from an Indonesian company of which he was the “President Director”. He is alleged to have used the proceeds of those cheques for himself or to his benefit.
2 This is:
(1) an appeal by Mr Liem under s 21 of the Extradition Act 1988 (Cth) from orders made under s 19(9) of that Act by the third respondent, a New South Wales magistrate, that he was eligible for surrender to the first respondent, Indonesia (statutory appeal); and
(2) an application by Mr Liem for judicial review under s 39B of the Judiciary Act 1903 (Cth) of:
(a) the decision of the second respondent, the Minister for Justice of the Commonwealth, to issue a notice under s 16 of the Extradition Act 1988 (Cth), having necessarily formed an opinion that Mr Liem was an “extraditable person” within the meaning of s 6 of the Extradition Act; and
(b) collaterally, the magistrate’s decision that Mr Liem was eligible for surrender, as having been reached without the foundational jurisdiction of a valid s 16 notice issued by the Minister (judicial review application).
3 Indonesia appears only in relation to the statutory appeal, to which the Minister is also an active party. The Minister is the sole active opposing party to the judicial review application. The magistrate filed a conventional submitting appearance as the third respondent in relation to both the statutory appeal and the judicial review application, save as to costs. Where it is necessary to identify submissions made on behalf of both Indonesia and the Minister in relation to the statutory appeal, it will be convenient to refer to those parties collectively as “the respondents”. The submissions resisting judicial review relief are by the Minister alone.
4 A single amended originating application filed on behalf of Mr Liem advances four grounds of statutory appeal and then four grounds of judicial review. Only three of those statutory appeal grounds were ultimately pressed. For the reasons that follow, all seven surviving grounds of appeal or review must fail. The amended originating application must therefore be dismissed with costs and the orders of the magistrate confirmed.
Relevant Extradition Act requirements
5 The extradition process was conveniently summarised in Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 389 as follows:
The stages of the legislative scheme
The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered. In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional warrant under s 12(1) or by the giving of a notice under s 16(1). Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19. Where a person is on remand under s 15 and the Attorney General has given a notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender. If eligibility is so determined by the magistrate, provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered.
6 The above summary in Harris is sufficient for present purposes, despite amendments to the Extradition Act since that time, especially since 2012: see also Vasiljkovic v The Commonwealth [2006] HCA 40; 227 CLR 614 at [16]-[29], [52]-[60] and [143]-[155] for a more detailed summary of the overall extradition scheme. Most of the essential features of the scheme remain the same as those described in Harris and Vasiljkovic. However, references in cases to the meaning and effect of particular sections of the Extradition Act must be approached with caution in case they have relevantly changed.
7 An important example of a legislative change that has affected the way in which certain of the authorities must be read and understood concerns the point in the extradition process at which any “extradition objections” under s 7 of the Extradition Act are taken into account. Extradition objections can arise for determination in cases concerning political offences or persecution. The determination of such objections was not in issue in this case except for the purpose of understanding certain of the earlier cases relied upon by counsel for Mr Liem.
8 Extradition objections used to form a part of the process by which the Attorney-General (now including the Minister) decided under s 16(1) of the Extradition Act whether to state that an extradition request had been received. This was a necessary step for an extradition request to proceed to an extradition hearing. Extradition objections were also part of the next-stage determination by the magistrate (or eligible Federal Circuit Court judge) under s 19 of the Extradition Act as to whether the person was eligible for surrender.
9 Extradition objections are now considered only at the stage of consideration by a magistrate or eligible Federal Circuit Court judge. They continue to form a part of the determination as to whether a person is eligible for surrender. Extradition objections therefore remain a part of the adversarial process before the magistrate or judge. They form part of the administrative, rather than judicial process, conducted personum designata by the magistrate or judge: see Hilton v Wells (1985) 157 CLR 57 at 68, 72-3; Director of Public Prosecutions (Cth) v Maria Kainhofer [1995] HCA 35; 185 CLR 528 at 538, 540 and 543. While extradition objections formed no part of Mr Liem’s case in resisting extradition, the change removing extradition objections from the s 16 notice process affects in an important way the scope of the decision to state that a request has been received. In this case, that includes the characterisation of the role of the Minister when he issued the notice under s 16(1) of the Extradition Act in relation to Mr Liem.
10 If a decision is made not to give notice that the request has been “received”, then notice must be given directing the magistrate or judge to cancel the arrest warrant: see s 12(3) of the Extradition Act. If no request is made for extradition within 45 days of arrest, or no s 16 notice issues within a further five days, the person must be brought before a magistrate or eligible Federal Circuit Court judge and must be ordered to be released: see s 17 of the Extradition Act.
11 A statement by notice to a relevant judicial officer of receipt of an extradition request under s 16(1) of the Extradition Act is therefore a necessary step for extradition proceedings to take place. That notice can only issue if the Attorney-General, or in this case the Minister fulfilling the same role, is of the opinion that the person sought to be extradited is an “extraditable person”: see s 16(2). The meaning of “extraditable person” is defined in s 6 of the Extradition Act. In particular, a person can only fall within that definition if, amongst other things, they are “accused of having committed” an “extradition offence” in relation to the country seeking extradition: see s 6(a)(i) and (b).
Key issues arising in this appeal
12 The key issues raised in these proceedings are:
(1) whether the request material from Indonesia was capable of establishing that Mr Liem was “accused of having committed” an “extradition offence”;
(2) if so, whether that request material was sufficient to establish that Mr Liem was “accused of having committed” an “extradition offence”; and
(3) if so, whether the Minister lawfully reached the conclusion that Mr Liem was an extraditable person, by reason of insufficient consideration of the material before him or failure to afford procedural fairness.
13 Before turning to the grounds of statutory appeal and of judicial review, and the competing arguments, it is convenient to consider how prior cases, including binding authority, have determined a pivotal issue raised on behalf of Mr Liem. The issue raised is what was required of the extradition request material from Indonesia to enable an opinion to be formed by the Minister that Mr Liem was an “extraditable person”, with particular reference to the requirement that he was “accused of having committed” an “extradition offence”.
14 In Kainhofer, Gummow J relevantly said at 563-4:
… the term "extraditable person", as defined in s 6, is expressed as applying "for the purposes of this Act", that is to say, not only for the purposes of extradition from Australia (Pt II, ss 12- 27), but also extradition to Australia from other countries (Pt IV, ss 40-44). This suggests that the phrase in the definition "the person is accused" has, with due allowance for the differing legal systems that may be involved, a broadly similar operation.
…
I would not accept the proposition that there must be an authorised public accusation of equivalent effect to what in common law systems would be treated as an indictment or the laying of an information. Care must be taken to allow, within the limits mentioned earlier in these reasons, what in the United States was called a "reasonable cosmopolitan interpretation". In particular, differences between denomination or categorisation of procedures should not be given too great a weight. The fundamental question is whether the person whose extradition is sought under Pt II is one in respect of whom there has been taken by the competent authorities in the extradition country a decision to invoke the operation of the criminal law by the taking of whatever steps are necessary to initiate what might fairly be described as a prosecution.
15 The above approach by Gummow J in Kainhofer was followed by the Full Court in O’Connor v Zentai [2011] FCAFC 102; 195 FCR 515 per Besanko J at [53] and per Jessup J (with North J agreeing on this issue) at [140]. The passage at [140] made it clear that:
… the question [is] not whether the respondent would, on the same or analogous facts, have been regarded as an “accused” person in accordance with Australian criminal law and procedure. Rather, it was whether the legal and factual circumstances in [the requesting country] were such as would invoke the concept of the respondent being “accused” as that word is used in s 6 of the Act.
16 In Zentai, it was further observed by Jessup J at [142] that:
In my view, it follows from the judgments of Gummow J in Kainhofer and of Lord Steyn in Ismail that there will not, or at least will not always, be a bright line in the perception of an Australian court between the circumstances of a person who is, and those of a person who is not, “accused” in the context of criminal proceedings in a civil law jurisdiction. In the present case, the evidence was that Hungarian prosecuting authorities had a well-founded suspicion that the respondent had committed an offence. Hungary had advised that, under continental law, criminal proceedings were started upon the existence of such a suspicion. Those criminal proceedings, in the present case, were said to exist “before the Military Prosecutor’s Office” rather than “before the Military Panel of the Metropolitan Court”. Nonetheless, an international warrant for the arrest of the respondent had been issued. This was done by a judge, on the motion of a prosecutor during the investigative stage of the proceeding. In my view, it would have involved no misdirection on the part of the Minister had he formed the view, as he was invited to do by Att C, that the respondent was wanted for prosecution within the meaning of Art 1 of the Treaty. It would not have been a misdirection for the Minister to have concluded that, in Hungary, a person in respect of whom there is a well-founded suspicion of the commission of an offence, and in respect of whom a warrant has been issued on the motion of a prosecutor, is wanted for prosecution, notwithstanding that the immediate stage of the procedure remained that of investigation, and that no charge had yet been laid.
17 The above passage from Zentai reinforces the need to be alert to the risk that the application of criminal investigation and prosecution processes in Australia as a guide to the meaning of “accused” in s 6(a)(i) of the Extradition Act may lead to error. It may not always be easy to look at extradition request material free of such undue influence, as the reasoning of Gummow J in Kainhofer, reinforced by the Full Court in Zentai, requires. An important aspect of these proceedings entails ensuring that what is considered in the judicial review application is the statutory test, not local practices and procedures, to determine whether, on the totality of the extradition material, an opinion could be, and was, lawfully formed by the Minister that Mr Liem was “accused of having committed” an “extradition offence”.
Arrest, extradition request and proceedings before the magistrate
18 Mr Liem was arrested in Australia on 19 December 2016, pursuant to a provisional arrest warrant issued by a magistrate of the Australian Capital Territory on 28 October 2016 under s 12(1) of the Extradition Act. In issuing the warrant, the ACT magistrate affirmed that a statutory application had been made on behalf of Indonesia for the issue of an arrest warrant in relation to Mr Liem, and stated that he was satisfied that Mr Liem was an “extraditable person” for the purposes of the Extradition Act in relation to Indonesia. There is no challenge to the issue of the arrest warrant, nor to the arrest of Mr Liem.
19 On 23 January 2017, an request was received by Australia from Indonesia seeking that:
Ronny Liem who is wanted to face prosecution in Indonesia for the embezzlement against Article 374 of the Indonesian Criminal Code and money laundering against Article 3 and Article 4 of the Law Number 8 Year 2010 on Money Laundering Crime Prevention and Eradication be returned to Indonesia to be dealt with according to law.
20 It is necessary to reproduce additional parts of the request in some detail in order to address the appeal and judicial review points raised, especially on the issue of whether they provide sufficient material for the Minister to form the opinion that Mr Liem was “accused of having committed” an “extradition offence” and was thus an “extraditable person” for the purposes of the Extradition Act in relation to Indonesia. The request relevantly further stated the following (emphasis in original):
Objective of extradition request
2. The objective of request for extradition submitted by the Government of the Republic of Indonesia to the Government of the Commonwealth of Australia is to arrest, detain, and extradite a criminal offender in Australia name [sic] Ronny Liem, which became fugitive for prosecution in Indonesia for embezzlement and money laundering offences.
…
8. According to the Indonesian law, the Indonesian National Police as the investigation institution in the Republic of Indonesia having authority to arrest and detain according to Article 6 (1) item a and Article 7 (1) item d of the Indonesian Criminal Code of Procedure.
Statement of authority to prosecute
9. The competent authority who will make prosecution to Ronny Liem is the Public Prosecutor of the District Attorney Office in Indonesia.
10. Based on Article 8 (2) and (3) item b, Article 138 (1), and Article 139 of the Indonesian Criminal Code of Procedure, if the suspect Ronny Liem is be handed over to the competent authority in Indonesia then the Public Prosecutor Office in Indonesia will issue the notification stating that the public prosecutor agrees and decides to prosecute the suspect of crime after the delivery the suspect and the case file by the Indonesian National Police to the public prosecutor.
…
Text of provisions in Article 138 (1) Indonesian Criminal Code of Procedure is:
After receiving the investigation finding and the investigator immediately learning and examining the same and within seven days, the Public prosecutor shall notify to the investigator whether the investigation finding is already complete or not.
Text of provisions in Article 139 Indonesian Criminal Code of Procedure is:
After receiving or re-receiving the complete investigation finding from the investigator, the public prosecutor shall immediately determine whether the case file is already fulfilling the requirements to be able to be delegated to the court or not.
11. After the Public Prosecutor has the custody right over the evidence and suspect, the Public Prosecutor may only stop the prosecution in a very limited conditions, for example if being found any of the exceptions based on the prevailing legislation in Indonesia namely due to mental disorder, age under 16 (sixteen) years old, or due to demise, or poor health condition or in case of there is uncertantinty [sic] regarding the identity of the said person. The Public Prosecutor cannot make the decision over such exception, until the Public Prosecutor has the custody right over the evidence and suspected criminal perpetrator.
Offences for which extradition is sought
12. The extradition of Ronny Liem to Indonesia is sought for prosecution of the following offences:
Embezzlement
a. Article 374 of the Indonesian Criminal Code:
“Embezzlement committed by any person who has possession of the property on account of his personal service or of his profession or for monetary compensation, shall be punished by a maximum imprisonment of 5 (five) years”.
Money Laundering
b. Article 2 of the Law Number 8 Year 2010 on Money Laundering Crime Prevention and Eradication:
(1) “Result of the criminal action shall be the Assets acquired from the criminal actions as follow:
…
q. embezzlement;
r. fraud;
…
Statement for alleged conduct done by Ronny Liem
15. Ronny Liem is the Director of PT. Indonesia Konsorsium Investama (PT. IKI), a stock trading company, from 2011 until 2015, pursuant to Notarial Deed Number 134 dated 29 May 2006, issued by Public Notary Edison Jingga, SH.
16. Sometime between 25 February 2011 and 10 April 2015, Ronny Liem as the President Director of PT. IKI, instructed Marlin (a Financial Staff of PT. IKI) and Vinewati (Accountant of PT. IKI) to gradually deliver to himself 134 papers of cheque.
17. Ronny Liem ordered Marlin and Vinawati to issue those cheques without going through the procedure that has been determined by PT. IKI, such as financial control and consultation.
18. In 2015, it was found that Ronny Liem has cashed those cheques and he never pay for it to PT. IKI. According to Financial Division, the PT. IKI has suffered a big loss amounted Rp. 131,995,995,000 (one hundred thirty one billion nine hundred ninty [sic] five million and nine hundred ninety five thousand rupiah).
19. Ronny Liem used the PT. IKI’s money for his personal purposes and according to further investigation it was known that those funds were used for establishing his new businesses.
21 Attached to the extradition request was a copy of the arrest warrant issued by Indonesia on 27 December 2016 in respect of Mr Liem, following his arrest in Australia, stating the following:
In the interest of criminal act investigation, it is necessary to arrest the person strongly alleged to have committed criminal act based on adequate preliminary evidences.
…
IT IS HEREBY ORDERED
…
To: 1. Arrest the suspect hereinbelow:
Name: RONNY aka RONNY LIEM
…
wherever the suspect is situated and further brought to the office of Criminal Investigation Department of National Police of the Republic of Indonesia for examination as suspect, since based on adequate preliminary evidence the act the suspect has fulfilled the component of criminal act of functional embezzlement and Money Laundering, as referred to in Article 374 KUHP (Criminal Code), Article 3 and Article 4 Law No.8 of 2010 regarding Prevention and Eradication of Criminal Act of Money Laundering occurring from February 25, 2011 to April 10, 2015 in the office of PT Indonesia Konsorsium Investama, Jakarta;
…
3. This Warrant shall be effective from December 23, 2016 to completion thereof;
4. after fulfilling this warrant, the Arrest Report and Body/Clothing Search Report shall be drawn up.
22 On 27 January 2017, the Minister issued a notice of receipt of an extradition request under s 16(1) of the Extradition Act, stating that:
… an extradition request has been received from the Republic of Indonesia, an extradition country, in relation to Ronny Liem for the following extradition offences:
• Embezzlement contrary to Article 374 of the Indonesian Criminal Code
• Money Laundering contrary to Articles 3 and 4 of Law Number 8 Year 2010 on the Prevention and Eradication of Money Laundering
23 On 14 March 2017, Indonesia applied to a magistrate for proceedings to be conducted to determine whether Mr Liem was eligible for surrender to Indonesia. On the same day, a magistrate made orders for the preparation of eligibility proceedings.
24 On 18 May 2017, proceedings were conducted by Magistrate Price in New South Wales to determine the eligibility of Mr Liem for surrender to Indonesia. His Honour determined that Mr Liem was eligible for surrender under s 19 of the Extradition Act, and issued a warrant under s 19(9) ordering the committal of Mr Liem to prison to await surrender.
25 On 1 June 2017, Mr Liem filed an originating application initiating these proceedings. That originating application was amended by consent and a copy of that amended originating application was handed up at the hearing of the appeal on 23 August 2017, with leave granted for that amended originating application to be filed. The amended originating application was ultimately filed on 20 October 2017.
26 In considering the issues on appeal, it is convenient to first address the judicial review grounds contained in the amended originating application, and the statutory appeal grounds second.
The judicial review grounds as pleaded and an overview
27 The following four grounds of judicial review are grounds 5 to 8 in the amended originating application (emphasis in original to indicate the additional proposed grounds in respect of which leave to amend was granted; formatting as per original):
5. The Second Respondent acted outside of jurisdiction in issuing the section 16 notice as it was not open to conclude that the applicant was an ‘extraditable person’ as defined in section 6 of the Extradition Act 1988 (Cth).
6. The Third Respondent acted without jurisdiction because the notice issued under section 16 of the Act by the Second Respondent was issued outside of jurisdiction and a nullity.
7. The Second Respondent acted outside of jurisdiction in issuing the section 16 notice by failing to give proper genuine and realistic consideration to the issue of whether the Applicant was accused of an offence in Indonesia and therefore was or was not an ‘extraditable person’ as defined in section 6 of the Extradition Act 1988 (Cth).
8. The Second Respondent acted outside of jurisdiction in issuing the section 16 notice as the Applicant was denied procedural fairness because the material before the Second Respondent did not fairly and accurately present the evidence and issues relevant to whether the Applicant was accused of an offence in Indonesia and therefore was or was not an ‘extraditable person’ as defined in section 6 of the Extradition Act 1988 (Cth).
28 Each of the judicial review grounds are directed only to the Minister, and not to Indonesia. They are only collaterally directed to the magistrate, upon the basis that his Honour did not have jurisdiction by reason of the s 16 notice being invalidly issued.
29 Grounds 5 and 6, the first and second judicial review grounds, may be seen as going to the capacity of the request material that was before the Minister to ground the required opinion that the applicant was “an extraditable person” as defined in s 6 of the Extradition Act, by reason of the required aspect of being a person who is “accused of having committed” the “extradition offence[s]”. The issue is therefore one of the sufficiency of the request material before the Minister in this particular respect. It was common ground that if the first judicial review ground succeeded, the second judicial review ground would also have to succeed.
30 Grounds 7 and 8, the third and fourth judicial review grounds, are in the alternative to the first two grounds. They are only reached if the first two grounds fail, upon the basis of a finding by the Court that the extradition material before the Minister did have the necessary capacity to ground the s 16(2) opinion. In the event of that finding, these two grounds challenge, in different ways, the decision-making process that was undertaken to reach the requisite opinion.
31 The substance of the third judicial review ground is an assertion that the Minister failed to consider (as was said to be required) the possibility that the applicant was not a person who is “accused of having committed” the “extradition offence[s]”. The substance of the fourth judicial review ground is a related assertion that the Minister denied the applicant procedural fairness by not allowing him to be heard on the question of whether he was a person who was “accused of having committed” the “extradition offence[s]”.
Grounds 5 and 6 – the first and second judicial review grounds: asserted incapacity of the material to establish a conclusion by the Minister that the applicant was “accused of having committed the offences”
32 The submissions for Mr Liem in relation to the first judicial review ground, made orally and/or in writing, may be summarised as follows:
(1) The material before the Minister (primarily, the extradition request and the departmental submission) could not reasonably have led to the formation of an opinion by the Minister that Mr Liem was accused of having committed the extradition offences and was thus an “extraditable person” within the meaning of s 6 of the Extradition Act.
(2) The extradition request and the submission provided numerous “factual propositions” that Mr Liem was wanted for an investigatory purpose, rather than for a prosecution purpose. These included:
(a) that the arrest warrant within the extradition request was issued by an Indonesian police officer rather than by a court;
(b) that no decision had been made by a “competent authority” in Indonesia to prosecute the applicant; and
(c) that the warrant expressed the purpose of detaining the applicant as for “examination as suspect”.
(3) Counsel for Mr Liem relied on the consideration of this issue by Gummow J in Kainhofer at 564, being the last sentence of the quote reproduced at [14] above:
The fundamental question is whether the person whose extradition is sought under Pt II is one in respect of whom there has been taken by the competent authorities in the extradition country a decision to invoke the operation of the criminal law by the taking of whatever steps are necessary to initiate what might fairly be described as a prosecution.
Counsel’s written submissions asserted that the initiation of a prosecution was the relevant standard by which to consider the meaning of being “accused” of an offence in relation to s 6 of the Extradition Act.
(4) It was thus asserted that it was not open to the Minister to issue the s 16 notice, and the notice therefore ought to be quashed by reason of being a nullity.
33 In relation to the second judicial review ground, counsel for Mr Liem submitted that if the first judicial review ground was made out as to the s 16 notice being issued outside of jurisdiction and thus being a nullity, then the necessary precondition for the s 19 proceedings did not exist and those proceedings were also rendered a nullity.
34 In response, the Minister submitted, orally and/or in writing, that:
(1) In considering whether the purpose underlying the extradition request was one of investigation or prosecution, it was erroneous to rely on the “factual propositions” highlighted by the applicant within the extradition request in isolation, and without regard to the extradition request materials as a whole.
(2) Undue emphasis was being placed on the words “investigative” and “suspect” within the extradition request, as understood from an Australian criminal law and procedure perspective, and that this was being done without holistic regard to the Indonesian process to which the applicant would be subject.
(3) Regard should be had to the explanation provided in the arrest warrant (when read in conjunction with the extradition request) of the stage of the Indonesian criminal process the applicant was presently at; namely, that, having been “strongly alleged” of committing embezzlement and money laundering crimes, the applicant would now, upon being surrendered to the competent authority in Indonesia, be subject to a prosecution notice by the Public Prosecutor Office in Indonesia that would formally commence the prosecution process. The necessity for the Indonesian Public Prosecutor to be given custody over the suspect by police for prosecutorial decision-making purposes was also relied upon.
(4) Given that the above facts formed part of the material before the Minister, there was “ample basis” for the Minister to conclude that Indonesia had taken steps to invoke the operation of its criminal laws with respect to Mr Liem so as to commence what might fairly be considered as a prosecution, and thus to conclude that the applicant was “accused of having committed” the “extradition offence[s]” within the meaning of s 6 of the Extradition Act.
35 For completeness, counsel for the Minister also submitted that:
(1) It is accepted in Australian jurisprudence that a person may be “accused” of an offence for the purposes of the Extradition Act, yet still be subject to an investigative step in the criminal process: Zentai at [142]; Snedden v Minister for Justice [2014] FCAFC 156; 230 FCR 82 at 120-121.
(2) Nothing turns on the arrest warrant having been signed by an Indonesian police officer, that having been a feature of a number of prior cases, including Kommatas v Hellenic Republic [2014] FCA 1224; 144 ALD 303 at [10]-[13]; Radhardja v Republic of Indonesia [2000] FCA 1297 (Full Court) at [11]; and Prabowo v Republic of Indonesia (1995) 61 FCR 258 at 261G.
36 It should be noted that in Kommatas at [12], the first instance decision of French J (as his Honour then was) in Cabal v United Mexican States (No 3) [2000] FCA 1204; 186 ALR 188 at [145]-[146] was quoted and relied upon; particularly, the passage in Cabal at [146] that reinforces the notion that the procedural and content requirements of the requesting country need not be questioned as to whether they comply with like obligations in Australia, a position that was upheld by the Full Court on appeal: Cabal v United Mexican States [2001] FCA 427; 108 FCR 311. French J stated in that passage that neither the magistrate nor this Court upon review were obliged to inquire into the procedural requirements of the requesting country, albeit in the context of ascertaining whether a purported arrest warrant was in fact such a warrant. What matters is the repetition of the notion, in effect, that this Court takes the foreign laws and procedures as they are described in the extradition material, subject only to meeting the statutory criteria in the Extradition Act if that is raised as an issue.
37 On the basis of the above submissions, the Minister argued that the first and second judicial review grounds should fail.
38 By way of submissions in reply on behalf of Mr Liem, it was submitted that:
(1) Contrary to the respondents’ submissions, there was no “test” for determining whether a person is “accused” for the purposes of s 6, and that although a “reasonable cosmopolitan interpretation” should be adopted as to whether competent authorities in an extradition country have taken the necessary steps to initiate a prosecution, as articulated by Gummow J in Kainhofer at 563, there was nonetheless no “bright line” guiding that interpretation. That interpretation should therefore be approached on a case-by-case basis: Zentai at [142]. That submission does not in substance differ from the submission of the Minister in principle, although a different conclusion is urged on behalf of Mr Liem in the particular circumstances of his case.
(2) The respondents relied on no authority to suggest that the only reasonable or possible conclusion open to the Minister was that the applicant was a person “accused” of an offence within the meaning of s 6 of the Extradition Act. It is appropriate to note at this juncture that it is not apparent to me why the opinion must be the only “possible” conclusion. Moreover, the term “reasonable” must be confined to the concept of legal unreasonableness if this Court is to avoid straying into impermissible merits review: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [63]-[76], as followed by the Full Court of this Court in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [8]-[13], [52]-[59] and [92]. See also Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 at 171 [58]-[60].
(3) The Minister was not obliged to accept “conclusory statements” within the extradition request material as to the applicant being wanted for prosecution. Rather, the Minister was required to be appropriately sceptical and critical of the contents of the Indonesian request. This argument was developed further in relation to the third judicial review ground.
39 The resolution of this dispute requires a careful consideration of the content of the extradition request material from Indonesia and, in particular, the parts reproduced earlier in these reasons. That examination supports the arguments advanced on behalf of the Minister and provides only superficial support for Mr Liem’s case. While the domestic legal and procedural arrangements in Indonesia disclosed in the request material mean that the first steps in the prosecution process must start with police, the numerous references in the request to Mr Liem being wanted for prosecution cannot simply be disregarded as “conclusory”. Rather, they should be viewed as a statement of how the prosecution process operates, and relevantly would operate upon Mr Liem being extradited to Indonesia.
40 Reading the extradition request materials as a whole, there is no proper reason to doubt that Mr Liem will be prosecuted upon his return to Indonesia, and that the steps necessary for that to take place now await only his return, subject to whether anything further might be required by the public prosecutor in Indonesia. That may entail, for example, meeting some shortcoming in the evidence, which is a common feature of any kind of litigation in Australia, and, as may readily be inferred from the extradition material, in Indonesia also. If there is any such shortcoming in the evidence, it is likely to be formal, given the detail provided as to the evidence that has already been obtained, including from a substantial number of witnesses.
41 In particular, and, importantly, in the context of the evidence referred to in some detail in respect of the 134 cheques, including narrative summaries of witness evidence, the request expressly and clearly states that:
(1) Mr Liem “is wanted to face prosecution in Indonesia”;
(2) Mr Liem “became fugitive for prosecution in Indonesia”;
(3) the “competent authority who will make prosecution” of Mr Liem is “the Public Prosecutor of the District Attorney Office in Indonesia”;
(4) if Mr Liem is “handed over”, which should be understood to mean extradited to Indonesia, then the Public Prosecutor will “issue the notification stating that the public prosecutor agrees and decides to prosecute the suspect of crime after the delivery [of] the suspect and the case file by the Indonesian National Police to the public prosecutor”;
(5) Articles 138(1) and 139 of the Indonesian Criminal Code of Procedure require the Public Prosecutor to advise the investigators whether their investigation is ready to prosecute, which is, even in Australia, a part of the interchange between prosecutors and investigators, including as to whether any further evidence is required;
(6) the Public Prosecutor may only “stop” a prosecution on “limited conditions”, such as where the person facing prosecution has a mental disorder, is under the age of 16, has some other health problem or other “demise” or there is uncertainty as to their identity. This reinforces the view that the preceding paragraph in the request is referring to final preparations for prosecution, rather than reflecting any reservation about a prosecution taking place; and
(7) that Mr Liem is “sought for prosecution” for the named offences of embezzlement and money laundering under particular offence provisions.
42 Applying the authorities cited above, and Kainhofer and Zentai in particular, to the features identified above, it was well and truly open to the Minister to conclude that Mr Liem was an “extraditable person” within the meaning of s 6(a)(i) of the Extradition Act. The question of whether the submission itself was sufficient for that purpose is considered in relation to the third judicial review ground below.
43 It follows that ground 5, the first judicial review ground, must fail, and consequently, ground 6, the second judicial review ground, must fail also.
Ground 7 – third judicial review ground: asserted failure by the Minister to consider whether the applicant was not “accused of having committed the offences”
44 The submissions for Mr Liem in relation to the third judicial review ground, made orally and in writing, may be summarised as follows:
(1) The failure of the departmental submission:
(a) to draw the Minister’s attention to a requirement that he be satisfied that Mr Liem was wanted for prosecution rather than investigation, or the complexities of that issue generally; and
(b) to assist the Minister to actually determine whether he was of the opinion that Mr Liem was accused of an offence,
meant that the Minister failed to take a material fact into account and could thus not have formed his state of satisfaction reasonably or according to law, in the sense articulated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at [30]-[31] per Gibbs CJ. Thus the Minister failed to give “proper, genuine and realistic consideration” to this issue, and therefore to whether the applicant was an “extraditable person” within the meaning of s 6 of the Extradition Act.
(2) Counsel for Mr Liem relied on Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684; 98 ALD 589 at [93], on this issue, and reiterated that this ground went to the sufficiency of the material before the Minister.
(3) Citing Commonwealth v Dutton [2000] FCA 1466; 102 FCR 168 at [32]-[33], the Minister had failed to be a “contradictor to the claim of the requesting country” in forming the requisite satisfaction to issue a s 16 notice, and that, by extension of a related submission as to the first judicial review ground, the Minister had failed to afford the necessary scrutiny to Indonesia’s extradition claims, particularly in not giving real and genuine consideration to the question of whether the applicant was “accused” of an offence.
45 In response, the Minister submitted, orally and in writing, that the applicant’s submissions were erroneous, particularly for their reliance on Tervonen. Unlike in Tervonen, the Minister had the complete extradition request before him and, accordingly, there was ample material within the extradition request materials to allow the Minister to give “proper, genuine and realistic consideration”, in the sense affirmed in Tervonen, to the question of whether the applicant was “accused of having committed” the “extradition offence[s]” relied upon by Indonesia.
46 The passage in Dutton at [32]-[33] relied upon by counsel for Mr Liem for the proposition that the Minister was required to be a “contradictor” who in some way opposes extradition does not bear closer scrutiny, notwithstanding that the expression “contradictor” was also used by Young J writing for the Full Court in von Arnim v Ellison [2006] FCAFC 49; 150 FCR 282 at [70]-[71]. First, the comment in Dutton was more nuanced and subtle than represented by counsel for Mr Liem, once read in context as referring to ensuring that safeguards are properly observed. However, more fundamentally, it was a comment made in the very different statutory context of an “extradition objection” being taken into account at the s 16 notice stage, by reason of the terms of the former s 16(2)(b) of the Extradition Act. The presence or otherwise of an extradition objection no longer has any bearing on the process by which the Minister determines whether or not to give a s 16 notice that a request has been received. The determination of extradition objections has now been left solely to the magistrate (or Federal Circuit Court judge) ascertaining eligibility for surrender: see s 19(2)(d) of the Extradition Act. This is therefore a potent example of the danger in relying upon what has been said in prior cases without checking that the legislative context is relevantly and substantially the same.
47 The passage in Tervonen at [93] contained a restatement of the oft-cited obligation on an administrative decision-maker to give “proper, genuine and realistic consideration” to the merits of a case, and of the principle that this Court, in conducting judicial review, may ascertain whether a jurisdictional fact exists, but not conduct an evaluation of such a fact. However, that passage so stated does not assist in understanding what the alleged shortcoming was in the particular circumstances of this case. It is important to pay careful heed to the nature of the decision being made and the overall legislative scheme into which it fits. It was not a final determination of rights, such as by the grant or refusal of a visa. Rather, it was a decision as to whether extradition proceedings should take place, at which time the issues could be heard in an adversarial setting, albeit administrative in nature and only within the limited ambit provided for by the Extradition Act. The threshold at the s 16 notice stage was confined to the question of whether the request related to an “extraditable person”, including, relevantly, whether Mr Liem met that definition by reason of being a person “accused of having committed” the “extradition offence[s]”.
48 It is necessary to examine the submission that was before the Minister in order to determine whether there is substance to the complaint made on behalf of Mr Liem. The immediate impression does not bode well for the assertions made on his behalf. The first page of the two-page submission to the Minister, five lines beneath the Minister’s signature, states that “Mr Liem is wanted in Indonesia for prosecution for embezzlement and money laundering offences allegedly committed between 2011 and 2015”. Given the findings at [40]-[42] above, that summary accurately reflected a view that could legitimately be formed about the relevant substance of the request material. The submission then states that the Department’s advice was that the statutory preconditions had been met in relation to those offences, and that it was considered appropriate to exercise the discretion to issue the s 16(1) notice.
49 The second page of the submission to the Minister repeats that Mr Liem is wanted for prosecution for the same two offences, adding a reference to the offence provisions. The nature of the case against Mr Liem is concisely summarised immediately after that.
50 The Minister was entitled to rely on a summary of the material before him: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 30-31; Williams v Minister for Justice and Customs [2007] FCAFC 33; 157 FCR 286 at [21]. There was no legal bar to the Minister relying upon sufficiently accurate and comprehensive summaries of information prepared by Departmental officers: see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [41] and [61].
51 The minimum content of a submission to a decision-maker is necessarily determined by the context in which it arises, both factual and legal, as framed by the statutory provision under consideration. Not much was required of the submission to the Minister in the circumstances of this case, especially given the narrow ambit and purpose of the decision to be made under s 16 of the Extradition Act, leading to the extradition hearing before the magistrate. There was no requirement that the submission to the Minister provide competing or alternative interpretations of the request material, as might be required as part of the duty of utmost good faith (uberrima fides) to disclose all material facts to a judicial decision-maker, of the kind stated in Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 at 682, when seeking ex parte curial relief. What is required is no more than information that, if necessary in combination with the request material itself, addresses the question of whether the statutory test for the s 16 decision to give notice that a request has been received, has, in substance, been met: see Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 at 555-6, 566D-E. As decided in Lego, where there has been an omission of relevant material (in that case, by a person seeking the issue of a search warrant), the test is whether the material that was before the decision-maker was sufficient to meet the statutory conditions for the decision to be made. That threshold was met in relation to the concise submission before the Minister concerning Mr Liem.
52 The issue of inadequacy of the material to meet the statutory test has already been determined adversely to Mr Liem. No more detail was required in the submission to the Minister in relation to issuing the notice under s 16(1) of the Extradition Act. Quite properly, no suggestion was made of want of good faith in the submission before the Minister. The suggestion that there was a material omission in the submission to the Minister is not made out.
53 It follows that ground 7, the third judicial review ground, must fail.
Ground 8 – fourth judicial review ground: denial of procedural fairness in being heard on whether the applicant was or was not “accused of having committed the extradition offences”
54 The submissions for Mr Liem in relation to the fourth judicial review ground, made orally and in writing, were to the effect that while it was accepted that any procedural fairness obligation was reduced to “nothingness” in the context of the operation of s 16 (citing Marku v Minister for Home Affairs (No 2) [2013] FCA 1015; 216 FCR 315 at [44]-[45]), a procedural fairness obligation was enlivened anew by the deficiencies of the material put before the Minister, and the subsequent failure of the Minister to “properly, fairly and without exaggeration” consider the material. It was therefore submitted that the insufficiency of the material caused a want of procedural fairness, with reference made to Navarrete v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1723 (per Allsop J, as the Chief Justice then was).
55 In response, the Minister submitted, orally and in writing, that a complete reading of Gordon J’s reasons in Marku at [44]-[45] provided support for the proposition that procedural fairness was reduced to “nothingness”, by nature of the power under s 16(1) and the potential for that power to be frustrated or rendered ineffective should procedural fairness obligations operate. However, her Honour’s reasons did not support the applicant’s proposition that procedural fairness obligations are enlivened anew when the material put to the Minister fails to “properly, fairly and without exaggeration direct the Minister”. It was submitted that, in any case, the material before the Minister “did not exaggerate, or describe inaccurately”, the circumstances described in the extradition request, and that the applicant had provided no particulars in this regard. It was further submitted on behalf of the Minister that the case of Navarette did not assist the applicant, as it related to a different statutory scheme which imported an express requirement to afford procedural fairness.
56 The submissions for the Minister should be accepted. In Marku at [45], Gordon J made it clear that there is no procedural fairness obligation at the s 16 notice stage for the compelling reasons stated by her Honour as follows:
In addition, the requirement to observe procedural fairness is reduced to “nothingness” because the Act contemplates that a notice may be given under s 16 in relation to a person to whom the extradition request relates (1) before any application is made for a provisional arrest warrant in relation to that person (as occurred here); (2) before the person may have entered Australia; or (3) even before the whereabouts of the person are known. That construction finds further support in the express terms of the Act. Section 16(3) of the Act expressly provides for the person to be given a copy of the s 16 notice “as soon as practicable after the person is remanded under s 15 or the [s 16] notice is issued, whichever is the later” (emphasis added). This section reveals a legislative intention that the person the subject of the request will not be given prior notice of the receipt of the extradition request or of the Minister’s intention to issue a notice under s 16 stating that a request has been received. At a practical level that is not surprising. As Cooper J said in Foster v Attorney-General (Cth) (1997) 97 A Crim R 560 at 575-576:
Nor, in my view, do the rules of natural justice or procedural fairness require that a magistrate or the Attorney-General disclose to the person against whom extradition is sought prior to exercising the powers under s 12 or s 16 that a request from an extradition country has been received and give that person an opportunity to respond. For to do so may render ineffective or frustrate the process: Johns v Australian Securities Commission at 431; Kioa v West at 615.
57 As determined above in relation to the first and second judicial review grounds, the extradition material supported the conclusion that Mr Liem was a person “accused of having committed” the “extradition offence[s]”, such that the statutory test for the purposes of s 16 of the Extradition Act was capable of being met by the request material. Secondly, as determined above in relation to the third judicial review ground, there was no material omission in the submission before the Minister and, in particular, no obligation to provide competing or alternative interpretations of the request material, such as to suggest that Mr Liem was not a person “accused of having committed” the “extradition offence[s]”. Both the request material itself and the summary of it in the submission to the Minister were sufficient for the Minister to be satisfied that the statutory test in s 16, as read with s 6, had been met. Thirdly, there was no procedural fairness obligation to give Mr Liem an opportunity to argue, at the s 16 notice stage, that the statutory test had not been met by reason of him not being a person “accused of having committed” the “extradition offence[s]”, and no such obligation was created by the content of the submission to the Minister.
58 It follows that ground 8, the fourth judicial review ground, must fail.
The statutory appeal grounds as pleaded and an overview
59 The statutory appeal under s 21 of the Extradition Act is confined to the material that was before his Honour (with no such material having been excluded in this instance).
60 Section 19(1) of the Extradition Act provides that, if a person is on remand under s 15, notice has been given under s 19, an application has been made to a magistrate or eligible Federal Circuit Court judge by or on behalf of either the person or the requesting country for proceedings to be conducted and the magistrate or judge considers that the parties have had reasonable time in which to prepare for the conduct of such proceedings, then proceedings shall be conducted to determine whether the person is eligible for surrender. There is no issue that those preconditions for the conduct of the s 19 hearing were met, remembering that s 19 proceedings are administrative rather than judicial.
61 Section 19(2) of the Extradition Act provides that a person is only eligible for surrender if, inter alia:
(1) the “supporting documents” in relation to the extradition offence have been produced to the magistrate or judge, defined to include “a duly authenticated statement in writing setting out the conduct constituting the offence”: s 19(2)(a) and (3)(c)(ii); and
(2) the magistrate or judge is satisfied that:
… if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia: s 19(2)(c).
62 The first requirement under challenge concerns the need for a “conduct statement” that describes what Mr Liem is alleged to have done. The second requirement under challenge is commonly referred to as “dual criminality”, which essentially reflects the principle that Australia will not surrender a person to a foreign state except for conduct that constitutes a criminal offence in the part of Australia from which extradition is sought and which is serious enough to have a maximum penalty of at least 12 months’ imprisonment.
63 Ground 4 in the amended originating application, being the fourth ground of the statutory appeal asserting that the magistrate failed to give reasons, was abandoned at the commencement of the hearing. The remaining three grounds of the statutory appeal, expanded by leave, were as follows:
1. The Magistrate erred in holding that ‘Attachment C’ to the extradition request was capable of being considered as part of the “duly authenticated statement in writing setting out the conduct constituting the offence” required by section 19(3)(c)(ii) of the Extradition Act 1988 (Cth).
2. The Magistrate erred in holding that the “duly authenticated statement in writing setting out the conduct constituting the offence” required by section 19(3)(c)(ii) of the Extradition Act 1988 (Cth) and provided by the First Respondent, satisfied the requirement in section 19(2)(c) of the Act that, “if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia”.
3. The Magistrate erred in holding that the extradition request contained a “statement in writing setting out the conduct constituting the offence” required by section 19(3)(c)(ii) of the Extradition Act 1988 (Cth).
64 The above three statutory appeal grounds will now be addressed in turn.
Ground 1 – first ground of statutory appeal: alleged error by the magistrate in holding that the “Police Investigators Report” was capable of being part of the statement of conduct required by s 19(3)(c)(ii) of the Extradition Act
65 In relation to the first ground of the statutory appeal, the following submissions were made on behalf of Mr Liem:
(1) An exhaustive list of documents that “must” be provided to the presiding magistrate in support of an extradition request is prescribed by article 11(2) of the extradition treaty between Indonesia and Australia (being in the schedule to the Extradition (Republic of Indonesia) Regulations 1994 (Cth)). One such prescribed document is a “statement of the acts or omissions which are alleged against the person in respect of each offence”: art 11(2)(a). This treaty requirement was inferred to be reproduced in s 19(3)(c)(ii) of the Extradition Act by the requirement that the magistrate be provided in the s 19 proceedings with “a duly authenticated statement in writing setting out the conduct constituting the offence”.
(2) The “Attachment C” document, which took the form of a “Police Investigators Report” and was included in the “Statement of Alleged Conduct”, did not fall within the category of documents that could permissibly be provided to and considered by the magistrate. Although the Full Court in McDade v United Kingdom [1999] FCA 1868 held at [30] that a conduct statement could include attachments and could be in the form of multiple documents, it was submitted that further case law of the Full Court of this Court had resolved the question of whether “witness statements and other material of an evidentiary nature can constitute a conduct statement” in the negative, citing De Bruyn v Republic of South Africa [1999] FCA 1344; 96 FCR 290 and Bennett v Government of the United Kingdom [2000] FCA 916; 179 ALR 113.
(3) The “repetitive and convoluted material that is the ‘police investigators report’, whether it be of evidentiary value at trial or not” should have been disregarded in determining whether the dual criminality requirement is met because it was not a conduct statement or any part of such a statement.
(4) The third respondent magistrate had therefore erred in taking Attachment C into account in making the s 19 determination.
66 In response, the respondents (that is, Indonesia and the Minister, excluding the magistrate) submitted the following:
(1) A fair reading of Attachment C revealed that it did not include witness statements or documents that would have evidentiary value at trial. Rather, Attachment C summarised witness statements and evidence, but did not of itself constitute or attach individual witness statements or other evidentiary material. Thus the conclusions reached in De Bruyn and Bennett were of no application to Attachment C.
(2) It bears repeating, as accepted by Mr Liem through his legal representatives, that a conduct statement may be constituted by a number of documents, and a conduct statement has no set form. This was an “appropriate recognition” of the variance in different legal frameworks and the manner in which extradition documentation may be drafted by foreign authorities, citing Timar v Republic of Hungary [1999] FCA 1518 at [63], in which Weinberg J observed:
It must also be recognised, however, that documents emanating from countries with which Australia has extradition arrangements will often be drafted in language and style which is very different from our own, and perhaps less than perfect from our perspective. Whether or not those documents can be said to meet the requirements of the Act is, as Gummow J observed in Wiest [Wiest v Director of Public Prosecutions (1988) 23 FCR 472], a matter for practical judgment. Such documents must, in my opinion, be read fairly, and not perversely.
(3) Paragraphs 15 to 21 of the extradition request, under the heading “Statement for alleged conduct done by Ronny Liem”, formed part of the conduct statement, yet had been ignored in advancing this ground of appeal.
67 It was thus submitted by the respondents that there was no error on the part of the magistrate in taking Attachment C into account in making the s 19 determination, and that this ground of appeal must therefore fail.
68 By way of reply submissions on behalf of Mr Liem, it was asserted that the respondents had not addressed the correct issue or question. The issue or question was not whether Attachment C was a witness statement or included material of evidentiary value, but rather whether Attachment C was a conduct statement or not for the purposes of s 19(2)(a) and (3)(c)(ii) of the Extradition Act. It was submitted that even if Attachment C was not a witness statement, it would not necessarily constitute a conduct statement as required. It was further submitted by way of reply that the basis for the respondents’ apparent position that Attachment C would not have any “evidentiary value at trial” was unclear, given the differences presented by the Indonesian civil law system. In this regard, it was submitted on behalf of Mr Liem that there was no meaningful distinction between a “witness statement” and a document such as Attachment C that purports to summarise what witnesses have told police.
69 The resolution of this dispute requires a careful examination of how the alleged conduct by Mr Liem has been described in order to determine whether it meets the requirements of s 19(2)(a) and (3)(c)(ii) of the Extradition Act. The body of the request describes Mr Liem’s conduct as follows (emphasis in original):
Statement for alleged conduct done by Ronny Liem
15. Ronny Liem is the Director of PT. Indonesia Konsorsium Investama (PT. IKI), a stock trading company, from 2011 until 2015, pursuant to Notarial Deed Number 134 dated 29 May 2006, issued by Public Notary Edison Jingga, SH.
16. Sometime between 25 February 2011 and 10 April 2015, Ronny Liem as the President Director of PT. IKI, instructed Marlin (a Financial Staff of PT. IKI) and Vinewati (Accountant of PT. IKI) to gradually deliver to himself 134 papers of cheque.
17. Ronny Liem ordered Marlin and Vinawati to issue those cheques without going through the procedure that has been determined by PT. IKI, such as financial control and consultation.
18. In 2015, it was found that Ronny Liem has cashed those cheques and he never pay for it to PT. IKI. According to Financial Division, the PT. IKI has suffered a big loss amounted Rp. 131,995,995,000 (one hundred thirty one billion nine hundred ninty [sic] five million and nine hundred ninety five thousand rupiah).
19. Ronny Liem used the PT. IKI’s money for his personal purposes and according to further investigation it was known that those funds were used for establishing his new businesses.
20. Indonesia National Police has conducted examination of witnesses to 8 (eight) persons, which are: Mr. Abu Hermanto (Shareholder), Mr. Gooi Whuang Pheal alias Clement Gooi (Consultant), Mr. Marlen (Financial), Ms. Vinawati (Accounting), Ms. Suci Rusdiyati (Bank Officer), Mr. Hansen (Bank Officer), Mr. Donny (Receiver), Mr. Agus Sukoco (staff). Based on witnesses’ statements and the foregoing evidence as to the suspect Ronny Liem, there is strong allegation of embezzlement and money laundering as defined by Article 374 Indonesian Criminal Code, and Article 3 and 4 Law Number 8 of 2010 on Money Laundering Crime Prevention and Eradication.
21. The police investigation report is attached (ATTACHMENT C).
70 The incorporation by reference to attachment C to the request, being the police report, means that the conduct statement is not comprised by one or the other, but by both. The submissions for Mr Liem are to the effect that the police report aspect is so deficient that it should not have formed part of the composite material that was before the magistrate and thereby available, in combination, to constitute the required conduct statement. While the argument for Mr Liem effectively seeks to have the two sources of information as to the conduct allegedly engaged in by him read in isolation from one another, they properly can and must be read together so as to form the necessary overall impression.
71 The police investigation report (attachment C to the request) describes the case in general terms as:
(1) Mr Liem requesting 134 cash cheques through a woman in the finance department and a woman in the accounts department of the company of which he was director, without complying with the company’s disbursement procedure; and
(2) based on statements obtained from the branch manager of two banks, Mr Liem had disbursed to himself or to his benefit:
(a) 45 cash cheques totalling IDR 41,560,995,000 from one bank; and
(b) 89 cash cheques totalling IDR 90,435,000,000 from the other bank.
72 The police report then describes the nature of the evidence that nine witnesses are able to give. That narrative may be briefly summarised as follows:
(1) The evidence of the first witness is that of the “President Commissioner” and shareholder of the company who had recruited Mr Liem because of his experience in a “future trading company”, being the business of the company. He is able to give evidence that the authority to expend cash or incur [expenses] rested with the Board of Directors, including Mr Liem. He can describe the procedure that was required to be adopted. He can give evidence that the required procedure was not complied with by Mr Liem.
(2) The second witness is a financial consultant with the company and can give evidence, inter alia, that when Mr Liem requested the 134 cash cheques, he said he would furnish and complete the necessary documents and approvals in accordance with company procedure but had never done so. He can also give evidence about the authority to expend cash or incur [expenses] that rested with the Board of Directors, including Mr Liem, and describe the procedure required to be adopted.
(3) The third witness worked in the finance department of the company and, along with other formal details, can give evidence about the extent of the loss to the company based on a summary by the finance and accounting department supported by an independent auditor’s report.
(4) The fourth witness is also from the finance department of the company and can provide further details of the reporting requirements in relation to expenditure and the absence of the obtaining of any payment approval prior to the 134 cheques being drawn. It seems that he can produce the internal records of the company.
(5) The fifth witness worked in the accounting department of the company and describes the way in which Mr Liem had obtained the payment of the cheques without complying with company procedures.
(6) The sixth witness was a head teller at one of the banks involved, whose responsibilities included supervising payment transactions and the withdrawal and transfer of money by customers. The witness can give evidence about bank records in relation to the transactions.
(7) The seventh witness also worked at one of the banks and can produce the account opening records for an account opened by Mr Liem. He can also produce bank account statements for 89 transactions.
(8) The eighth witness was a former co-worker of Mr Liem who had worked with him in the past at another company. He can give evidence of receiving money from Mr Liem over 20 transactions that were given to him to manage and run a business in South Jakarta.
(9) The ninth witness worked at the company, with his main duties being to deliver documents and perform transactions upon the instructions of the company accountant. He is able to describe how a number of the cheques were disbursed and can produce a number of documents.
73 All of the details provided in the police report about the evidence that the nine witnesses could give also serve the function of describing Mr Liem’s conduct. The report is not, on its face, in form, or in substance, evidence. To the contrary, the report expressly described the evidence that each witness can give, along with describing documentary evidence that they can also give evidence about or produce. The documentary evidence obtained is also described. Overall, the police report describes Mr Liem’s conduct in relatively simple terms, albeit with quite a lot of detail and repetition.
74 The request passage reproduced above, as well as the police report of the evidence that nine witnesses are able to give (as briefly summarised at [72] above), in combination describe Mr Liem:
(1) using his position at the company to bypass usual requirements for the drawing of 134 cheques;
(2) making unfulfilled promises at least some of the time to provide the necessary paperwork later; and
(3) later using at least some of the proceeds of the cheques for his private business affairs.
As has already been observed, there is nothing wrong with reading those two documents together. There was nothing wrong with the police report forming part of the conduct statement.
75 While it is fair to say that the conduct description in the request and in the police witness evidence summary is not as clear or concise an account of Mr Liem’s conduct as it might have been, there is little difficulty in discerning the essential nature and extent of what he is alleged to have done. The information was ample to meet the necessary statutory description of a “statement in writing setting out the conduct constituting the offence[s]”.
76 It follows that ground 1, the first ground of the statutory appeal, must fail.
Ground 2 – second ground of statutory appeal: alleged error by the magistrate in reaching a conclusion as to satisfaction of the dual criminality requirement
77 This ground of appeal concerns the requirement imposed by s 19(2)(c) of the Extradition Act that, in determining eligibility for surrender, the magistrate be satisfied that dual criminality has been established. That is, the magistrate needed to be satisfied that, if the conduct alleged to have been engaged in by Mr Liem in Indonesia had taken place in New South Wales on 23 January 2017, it would have constituted an “extradition offence”.
78 The term “extradition offence” is defined in s 5 of the Extradition Act as an offence against a law of Australia or part of Australia for which the maximum penalty is at least 12 months’ imprisonment. Section 10(3) of the Extradition Act provides, for the purposes of s 19(2)(c), that if the conduct consists of two or more acts or omissions, regard may be had to all or only one or some of them, and that any difference in offence denomination or categorisation is to be disregarded.
79 It was submitted on behalf of Mr Liem that the magistrate had erred in reaching a positive conclusion as to the dual criminality requirement on the basis of the “duly authenticated statement in writing setting out the conduct constituting the offence” provided by Indonesia, this relevantly being the extradition request itself and the annexed and incorporated police report. The arguments made by counsel for Mr Liem in relation to the two classes of offences for which extradition was sought were as follows:
(1) In relation to the alleged money laundering offence, it was submitted that Indonesia did not contend that the applicant was eligible for extradition based on any like offence under Australian law. It was submitted that the use to which the moneys were put, or the conduct alleged by Indonesia (as set out in the conduct statement), would only be of evidentiary or sentencing relevance if an offence in respect of the conduct leading to the obtaining of the moneys was made out under New South Wales law. Indonesia could not, however, “suggest that later use of the funds is conduct forming an essential element of either Fraud or Breach of Director’s Duties”. It was therefore submitted that the conduct statement did not go to the essential elements of any like money laundering offence or its equivalent in Australian law. Rather, it went to a factor that was supposedly irrelevant for the present purposes of the dual criminality determination, being the later use of the moneys obtained.
(2) In relation to the alleged embezzlement offence, it was submitted on behalf of Mr Liem that the conduct statement failed to make out an essential element of the offences of fraud and breach of directors’ duties – namely, acting with fraudulent or dishonest intent – and that the conduct statement did not necessarily support that inference. It was also asserted that the additional elements of the directors’ duties offence were not alleged within the conduct statement. It was submitted that the conduct statement failed to suggest that Mr Liem made deceptive representations prior to obtaining the moneys, such that the nexus in the fraud offence between deception and the obtaining of the moneys was absent.
80 In support of those submissions, the applicant referred to the test articulated by Weinberg J in Timar at [64] as to:
… whether the document relied upon sets out the essential elements of each offence for which the surrender is sought, clearly identifies the provisions of the foreign law creating the offence and the maximum penalty prescribed for a breach thereof and gives sufficient particularity to ensure that the requested State and the person whose surrender is sought are left in no doubt as to the basis upon which the requisition is made.
81 The submissions for Mr Liem cited several further authorities to suggest that although a decision-maker is permitted to draw inferences as to what is alleged, whether this can be done to the requisite standard would depend on the precise conduct alleged and its context. In particular, in relation to the drawing of inferences as to the mens rea element of an extradition offence, reliance was placed on O’Donoghue v Ireland [2009] FCAFC 184; 263 ALR 392 at [46]-[49]. Particular reliance was placed on the requirement stated in O’Donoghue at [46] that drawing such an inference must be based on “a fair reading of the materials with regard to the serious consequences attaching to extradition”. Reliance was also placed on the proposition restated in O’Donoghue at [48] that an arrest warrant should make it sufficiently clear that a state of mind necessary to constitute an extradition offence did exist, without needing to specify the state of mind expressly.
82 Mr Liem also relied on Assange v Swedish Prosecution Authority [2011] EWHC 2849 at [57] (applied at [76] of that judgment), wherein the High Court of England and Wales stated that while it was not necessary to identify in the description of the conduct the mental element or mens rea required under the law of the jurisdiction from which extradition was sought, merely enabling an inference to be drawn as to the existence of that state of mind was not enough. Rather, the material must “impel” the inference that the alleged acts were committed with the requisite mens rea, in the sense of being the only reasonable inference to be drawn from the facts alleged. It was submitted that this reasoning was consistent with Zoeller v Federal Republic of Germany (1989) 23 FCR 282 and Linhart v Elms [1988] FCA 205, and that, given the serious consequences attached to extradition, the existence of the essential element of mens rea should not be a matter of speculation in determining the dual criminality requirement.
83 It was therefore submitted on behalf of Mr Liem, in relation to the embezzlement offence, that there was insufficient particularity in the material before the magistrate as to the essential element of mens rea (in that the existence of the requisite mens rea was not the only reasonable conclusion available) and, further, that a requisite actus reus element was not made out. For those reasons, the applicant submitted that the dual criminality element in relation to the embezzlement offence had not been made out, and the magistrate had therefore erred in concluding positively as to the dual criminality requirement being made out on this offence, as well as in relation to the money laundering offence.
84 In response, the respondents submitted, orally and/or in writing, that the arguments advanced on behalf of Mr Liem mischaracterised the dual criminality requirement as necessitating a direct equivalence between the Indonesian offences for which the applicant’s extradition was sought, and the Australian offences relied on by the magistrate. It was submitted that Mr Liem had sought to correlate:
(1) the Indonesian money laundering offence directly with the Australian fraud offence; and
(2) the Indonesian embezzlement offence directly with the Australian breach of directors’ duties offence.
The respondents submitted that what was actually required was “duality of criminality in substance”. Rather than comparing offences, the correct approach was to make a comparison between “the conduct itself” and “the offence under the law in force in New South Wales” (emphasis in the written submissions for the respondents).
85 The respondents submitted that the approach of duality of criminality in substance (rather than in form) resolved Mr Liem’s contention that the requisite mens rea of fraudulent or dishonest intent had not been made out in relation to the embezzlement offence. Furthermore, the respondents submitted that Mr Liem’s argument as to insufficient particularity of mens rea in the embezzlement offence ignored a “myriad of facts” in the conduct statement that provided both evidence and inferences as to the applicant’s dishonesty, to a standard sufficient to satisfy the mens rea elements of the NSW laws. Reliance was placed in this regard on the terms of s 192E of the Crimes Act 1900 (NSW) and s 184 of the Corporations Act 2001 (Cth), which are considered below. The respondents further submitted that little weight should be placed by this Court on Assange, given its concern with a wholly different statutory regime and the fact that it does not reflect Australian authority on the operation of s 19(2)(c) of the Extradition Act.
86 By way of reply submissions for Mr Liem, it was asserted that the respondents’ characterisation of the applicant’s approach to the dual criminality issue was erroneous, and that the true submission of the applicant was that “when the conduct statement is assessed against suggested offences applying in NSW dual criminality is not made out”. This was said to be the process of comparison required by the Extradition Act.
87 The reply submissions for Mr Liem also sought to dismiss the respondents’ suggestion that a “myriad of facts” was available in the conduct statement from which to draw evidence or inference as to mens rea. It was reiterated that the conduct statement does not give “sufficient particularity to ensure that the requested State and the person whose surrender is sought are left in no doubt as to the basis upon which the requisition is made”, citing Klepp v Gibb (1988) 81 ALR 383 at 393.
88 The question of dual criminality comes down to an assessment of whether the conduct alleged to have been engaged in by Mr Liem, if carried out in New South Wales on 23 January 2017, would have constituted an offence under either of the offence provisions relied upon by the respondents, disregarding labels and characterisation, namely:
(1) fraud, contrary to s 192E of the Crimes Act 1900 (NSW); or
(2) breach of directors’ duties, contrary to s 184 of the Corporations Act 2001 (Cth),
including in relation to the subsequent use of the money that was obtained.
89 The terms of s 192E of the Crimes Act are relevantly as follows:
192E Fraud
(1) A person who, by any deception, dishonestly:
(a) obtains property belonging to another, or
(b) obtains any financial advantage or causes any financial disadvantage,
is guilty of the offence of fraud.
Maximum penalty: Imprisonment for 10 years.
…
90 The written submissions for Indonesia before the magistrate on this offence were as follows (maintaining original footnotes in the text):
66. The terms “deception” and “dishonestly” are central to the operation of this offence.
67. “Deception” is defined in s 192B. It is the intention inducing of a state of mind which the accused knows does not accord with fact.28 A deception may be by words or conduct.
68. “Dishonesty” is defined s 4B of the Crimes Act to mean “dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people.”
69. The deception must be the effective cause of obtaining the money or financial advantage, as, “…it is an essential ingredient of the offence created by that section that the cause of the payment of the money (or handing over of the valuable thing or the giving of the financial advantage) was the deception used by the accused.”29
70. The deception must operate on the mind of the person to whom it is directed.30 It is irrelevant whether the person deceived has the ability to discover the truth of the facts behind the deception. The deception employed must precede the obtaining.
71. Numerous witnesses give accounts that the Respondent stated he would furnish and complete the relevant documents and approvals in accordance with PT. IKI’s processes, but never did so.31 Such statements were made to Mrs Marlin and Mrs Vinawati, and preceded his obtaining the cheques. The statements did not reflect the Respondent’s true intention, which was to use the cheques to fund the establishment of his other businesses. As a result, the Respondent plainly obtained a financial advantage for himself.
28 Corporate Affairs Commission v Papoulias (1989) 20 NSWLR 503 at 506.
29 R v Ho (1989) 39 A Crim R 145 at 147.
30 R v Laverty [1970] 3 All ER 432; R v Kovacs [1974] 1 WLR 370; R v Davies [1982] 1 All ER 513.
31 Attachment C, Indonesia National Police progress report, page 12, paragraph 6; page 16, paragraph 6; page 50, paragraph 5.
91 The written submissions for Mr Liem before the magistrate were as follows (maintaining original footnotes in the text):
No Statement of Deception Causation of the Obtaining
81. It is further an essential ingredient of the offence against section 192E that a deception by the accused was an actual operative cause of the payment of money or handing over of a valuable thing.4
82. The conduct statement does not allege a deception of anyone, let alone one sufficiently causatively related to the obtaining of a benefit such as to amount to the commission of a fraud offence contrary to section 192E.
4 R v Ho (1989) 39 A Crim R 145, R v Clarkson [1987] VR 962
92 The magistrate was entitled to accept the submissions for Indonesia and reject those for Mr Liem. The alleged conduct by Mr Liem was that he secured the payment of money to him by persuading employees to do as he asked. By doing so, he was implicitly representing that the money was required for a proper purpose of the company, when in fact, on the case sought to be brought against him, it was for his own purposes. The gravamen of the alleged conduct was deception. It constituted the necessary causal connection between his conduct and the receipt of the money. He is alleged thereby to have obtained property belonging to the company, being money derived from the cash cheques, or otherwise obtained a financial advantage, again being the money derived from the cash cheques.
93 The relevant state of mind is that of dishonesty. If Mr Liem was proven to have engaged in the alleged conduct in New South Wales, a strong, if not inescapable, inference was that this was done dishonestly. There is nothing in the material to suggest any benign state of mind in what presents on its face as a reasonably flagrant fraud. An important aspect of emphatically showing that state of mind would be proof of personal receipt or use of the money to which he had no entitlement, both of which were asserted in the request material. The apparent availability of that evidence also goes to showing the obtaining of the property or financial advantage. The suggestion that mens rea could not be demonstrated is therefore impossible to accept. This is a matter of ordinary and reasonable inference, not speculation.
94 The terms of s 184(1) and (2) of the Corporations Act are as follows:
184 Good faith, use of position and use of information—criminal offences
Good faith—directors and other officers
(1) A director or other officer of a corporation commits an offence if they:
(b) are intentionally dishonest;
and fail to exercise their powers and discharge their duties:
(c) in good faith in the best interests of the corporation; or
(d) for a proper purpose.
Note: Section 187 deals with the situation of directors of wholly-owned subsidiaries.
Use of position—directors, other officers and employees
(2) A director, other officer or employee of a corporation commits an offence if they use their position dishonestly:
(a) with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation; or
(b) recklessly as to whether the use may result in themselves or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation.
95 The written submissions for Indonesia before the magistrate on this offence were as follows (maintaining footnotes from the original text):
75. The obligation to act in good faith requires directors to not misappropriate the company’s assets for themselves, including, for example, by paying company money into a personal account.32
76. In relation to the conduct allegedly engaged in by the Respondent, he was at all relevant times a “director” of PT. IKI and was a member of its board of directors. The Indonesia National Police progress report, which is Attachment C of the Extradition Request, states that the Respondent used his position to obtain cash cheques from Mrs Marlin and Mrs Vinawati. He did not comply with PT. IKI’s process for issuing those cheques. The cheques were then deposited into his accounts, and the funds were used to establish his other businesses.
77. For those reasons the conduct allegedly engaged in by the Respondent would amount to the offence of misuse of position, contrary to s 184 of the Corporations Act.
32 See eg, Nicholls v The Queen [2016] VSCA 300.
96 The written submissions for Mr Liem before the magistrate were as follows:
83. The Applicant further submits that the conduct statement would amount to an offence contrary to section 184 of the Corporations Act 2001(Cth), which creates an offence and states:
[Text of s 184(1) of the Corporations Act 2001 (Cth) – reproduced above at [94]]
84. This submission fails on the simple basis that the conduct statement does not allege:
• Recklessness
• Intentional dishonesty
• An exercise of power/discharge of duty not in good faith in the best interests of the corporation
• An exercise of power/discharge of duty not for a proper purpose
97 Again, the magistrate was entitled to accept the submissions for Indonesia and reject those for Mr Liem. The conduct alleged to have been engaged in by Mr Liem entails him using his position as President Director of PT. IKI to procure the drawing of cash cheques for very large sums of money over 134 transactions. The material clearly discloses at least an implied allegation that in doing so, he actively exercised his powers and discharged his duties in a manner that was obviously absent good faith, not in the best interests of the company and did not entail any apparent proper purpose. The material necessarily implies that he failed to observe the proper exercise of powers and discharge of duties. The state of mind in doing so unavoidably could and most likely would be inferred to be dishonest, and intentionally so. It went well beyond any concept of recklessness. This, again, was not a matter of speculation, but rather a reasonable inference to draw. An aspect of the conduct in obtaining the money either by him or to his benefit goes to the proof of both the physical and fault elements of the offence, such that the conduct alleged to constitute money laundering in Indonesia in this case falls within the ambit of the s 184(1) offence.
98 For completeness, and by parity of reasoning, the conduct alleged to have been engaged in by Mr Liem also constituted him obtaining an advantage for himself or others and doing so intentionally. Again, an inference of dishonesty is inescapable, with the conduct alleged going well beyond the lesser offence of doing so while being reckless as to the result.
99 While specific reference was not made to domestic money laundering offences, which are designed to capture dealing with money that is the product of criminal activity without needing to show participation in that prior illegal conduct, reliance could also have been placed on at least the lowest level of money laundering offending as a federal offence, being s 400.9(1) and (1A) of the Criminal Code (Cth). Those provisions make it an offence to deal with money or other property where it is reasonable to suspect that the money or property is the proceeds of crime. If the aggregate value of the money or property is less than $100,000, the maximum penalty includes imprisonment for two years. If the aggregate value is $100,000 or more, the maximum penalty includes imprisonment for three years. Thus, although the money laundering aspect was effectively covered as part of the fraud and directors’ duties offences, they also amply made out domestic federal money laundering offences as well.
100 It follows that there is little reason to doubt that if Mr Liem had engaged in the conduct described in the extradition materials at the time the request was made, he would have committed both of the offences relied upon by the respondents, including as to mens rea. Accordingly, there was no error on the part of the magistrate in being satisfied as to dual criminality being established.
101 It follows that ground 2, the second ground of the statutory appeal, must fail.
Ground 3 – third ground of statutory appeal: alleged error by the magistrate in holding that Indonesia had provided a statement of conduct of the nature required by s 19(3)(c)(ii) of the Extradition Act
102 On the third ground of the statutory appeal, the applicant submitted that the conduct statement provided as part of the s 19 proceedings did not warrant the description of being “a statement in writing setting out the conduct constituting the offence”, as required by s 19(3(c)(ii) of the Extradition Act and, as such, that s 19(2) had not been satisfied. The difference between this ground of appeal and ground 1 is that this ground attacks the totality of the material, whereas ground 1 attacked only the police report. However, that approach was rejected as part of the reasoning towards the conclusion that ground 1 had to fail.
103 The applicant again relied upon McDade to submit that the requisite standard of specificity in a conduct statement had not been met by the document tendered for that purpose, because the relevant acts and omissions could not be reasonably identified in that document. This argument was made weaker by the very case it cited, McDade. The Court in that case at [17], as extracted in the submissions for Mr Liem, referred to the Zoeller principle of satisfaction as to whether a document is a conduct statement being a “matter of practical judgment and assessment, not for over-zealousness in discerning deficiencies”. That is, however, precisely how the submissions for Mr Liem appear to have approached this issue. Notwithstanding that incongruity, it was submitted on behalf of Mr Liem that the conduct statement was too “vague and general” by the standard outlined in McDade in respect of the alleged obtaining and use of the 134 cheques, and that this was particularly so given that the allegations were said to arise from 134 transactions over a period of five years. It was therefore submitted that the magistrate erred in holding that a “duly authenticated statement in writing setting out the conduct constituting the offence” had been provided in satisfaction of s 19(3(c)(ii), and thereby s 19(2), of the Extradition Act.
104 In response, the respondents submitted that the applicant’s submissions as to the conduct statement being too “vague and general” ignored the repetitive and straightforward nature of the alleged conduct. That conduct simply involved Mr Liem:
(1) ordering financial staff of the company to issue cheques to him without going through the appropriate company procedures;
(2) cashing the cheques;
(3) not reimbursing the company; and
(4) using the money for his personal purposes to establish a new business.
105 The respondents further submitted that the contentions on behalf of Mr Liem overlooked or ignored the detail of the offences provided by Attachment C to the extradition request, which could and should be read in conjunction with the conduct statement. In combination, it was submitted that those documents plainly established that, had the conduct taken place in NSW, it would have constituted the offences of fraud contrary to s 192E of the Crimes Act 1900 (NSW) and breach of directors’ duties pursuant to s 184(1) and/or (2) of the Corporations Act 2001 (Cth). The Minister thus submitted that the elements of s 19(2) had been duly satisfied, that there was no error on the part of the magistrate in this regard and that this ground must accordingly fail.
106 The respondents’ submissions must be accepted, applying the same reasoning as for ground 1, the first statutory appeal ground. The conduct alleged is repetitive, but it was far from sophisticated or even particularly complicated. While the description of Mr Liem’s conduct was somewhat more prolix than required, the content was not, in substance, deficient as alleged. It may be observed that the conduct alleged involved a very common form of employee fraud or misuse of position in a company, the experience of which in Australia has been described in many criminal sentence and appeal cases. Conduct of this kind relies on relatively basic departures from routine practices and procedures. Financial staff in such circumstances may be the unwitting means by which such a simple scheme is implemented, not being able to see each step in combination as constitutes the overall fraud or misuse of position.
107 The premise of this ground of statutory appeal was ultimately misplaced. The conduct statement must contain the essential necessary information with sufficient clarity overall. It does not have to do so by prose that is necessarily quick or easy to read. The relevant passages of the request itself (reproduced above) and the police report are ample descriptions of the kind required.
108 It follows that ground 3, the third ground of the statutory appeal, must fail.
109 As all four grounds of judicial review and all three grounds of statutory appeal maintained at the appeal hearing must fail, the amended originating application must be dismissed with costs.
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich. |
