FEDERAL COURT OF AUSTRALIA
Rahardja v Republic of Indonesia [2000] FCA 1297
EXTRADITION – Appeal against decision dismissing application for review of magistrate’s determination that appellant is eligible for surrender in respect of two offences – Whether primary judge erred in holding there was no extradition objection – Claim that there are substantial grounds for believing that appellant might be prejudiced at his trial or punished by reason of his race – Whether evidence established that claim – Whether Indonesian supporting documents sufficiently indicated the conduct giving rise to the relevant offences – Admissibility of supporting documents – Whether supporting documents properly authenticated.
Extradition Act 1988, ss7(c), 19, 20, 21 and 22
Prabowo v Republic of Indonesia (1995) 61 FCR 258 discussed and distinguished
HENDRA RAHARDJA v REPUBLIC OF INDONESIA
N531 of 2000
WILCOX, SPENDER and DOWSETT JJ
SYDNEY
14 SEPTEMBER 2000
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IN THE FEDERAL COURT OF AUSTRALIA |
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N531 of 2000 |
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
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BETWEEN: |
HENDRA RAHARDJA Appellant
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AND: |
REPUBLIC OF INDONESIA Respondent
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant, Hendra Rahardja, pay the costs of the respondent, Republic of Indonesia.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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N531 of 2000 |
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
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BETWEEN: |
Appellant
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AND: |
Respondent
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
1 THE COURT: This is an appeal against a decision of a Judge of the Court (Tamberlin J) dismissing an application by Hendra Rahardja to review an order of a magistrate, Mr B A Lulham, in respect of an application for his extradition to the Republic of Indonesia. Mr Lulham made a determination, under subs 19(9) of the Extradition Act 1988, that Mr Rahardjawas eligible for surrender to the Republic of Indonesia in respect of two offences which he described as follows:
“(i) Falsifying bank records contrary to Article 49(1)(a) of Indonesian Law No.7 of 1992 on Banks (1 count); and
(ii) Being a bank officer he intentionally failed to ensure the bank did not breach Indonesian banking law contrary to Article 49(2)(b) of Indonesian Law No.7 of 1992 on Banks (1 count).”
2 On 24 September 1999 Mr Lulham executed a warrant under subs 19(9) committing Mr Rahardja to prison to await, in relation to those offences, surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subs 22(5) of the Extradition Act.
3 Mr Rahardja made an application in this Court, under subs 21(1) of the Extradition Act, for review of the magistrate’s decision. His application was heard by Tamberlin J on 28 and 29 March 2000. On 16 May 2000 his Honour delivered judgment and made orders dismissing the application for review and confirming the magistrate’s order. Mr Rahardja appeals against those orders.
4 Counsel for Mr Rahardja put three arguments in support of their client’s appeal:
(i) there is an “extradition objection” in relation to the offences for which the surrender of their client is sought; namely, that, on surrender to Indonesia in respect of the offences, he may be prejudiced at his trial or punished by reason of his race: see para 7(c) of the Extradition Act;
(ii) the supporting documents provided by the Republic of Indonesia, and admitted in evidence before the magistrate, did not sufficiently identify the conduct alleged to constitute the relevant extradition offences: see paras 19(2)(a) and 19(3)(c) of the Extradition Act; and
(iii) the supporting documents ought not have been admitted into evidence by the magistrate because they were not duly authenticated; in particular, it was not established by admissible evidence that the seal that was attached to each of two bundles of documents, being respectively the Indonesian language and English language version of the supporting documents, was a seal that purported to be an official or public seal of the Republic of Indonesia or of a Minister, Department of State or Department or officer of the Government of the Republic of Indonesia: see subs 19(7) of the Extradition Act.
5 It will be necessary to deal separately with each of these issues. First we will state the relevant facts. Having regard to issues (ii) and (iii), these must include reference to the form of the documents placed before the magistrate.
The application for extradition
6 On 9 July 1999 the Minister for Justice and Customs, apparently acting as the delegate of the Attorney General, issued a notice under subs 16(1) of the Extradition Act in the following terms:
“To a magistrate before whom the person named in this notice is brought.
WHEREAS:
(a) in respect of an extradition request in Diplomatic Note No. 517/PO/VI/99/29 dated 28 June 1999 from the Republic of Indonesia, an extradition country, in relation to Hendra Rahardja also known as Tan Tjoe King, I am of the opinion:
(i) that Hendra Rahardja is an extraditable person for the purposes of the Extradition Act 1988 in relation to that country; and
(ii) that, if conduct equivalent to the conduct of Hendra Rahardja constituting the following extradition offences, namely:
· falsifying bank records contrary to Article 49(1)(a) of Indonesian Law No.7 of 1992 on Banks (one count); and
· being a bank officer he intentionally failed to ensure the bank did not breach Indonesian banking law contrary to Article 49(2)(b) of Indonesian Law No.7 of 1992 on Banks (one count),
for which surrender of Hendra Rahardja is sought, had taken place in Australia at the time at which the extradition request was received, the equivalent conduct would have constituted an extradition offence in relation to Australia; and
(b) I am not of the opinion that there is an extradition objection in relation to the following extradition offences for which surrender of Hendra Rahardja is sought:
· falsifying bank records contrary to Article 49(1)(a) of Indonesian Law No.7 of 1992 on Banks (one count); and
· being a bank officer he intentionally failed to ensure the bank did not breach Indonesian banking law contrary to Article 49(2)(b) of Indonesian Law No.7 of 1992 on Banks (one count),
NOW THEREFORE I, Amanda Eloise Vanstone, Minister for Justice and Customs of the Commonwealth of Australia, under subsection 16(1) of the Extradition Act 1988, hereby state that an extradition request from the Republic of Indonesia, an extradition country, in relation to Hendra Rahardja has been received.”
7 Following the issue of this notice, the Republic of Indonesia made an application for Mr Rahardja’s extradition. The application came before Mr Lulham on 31 August 1999. His Worship took evidence on that day and the two succeeding days. That evidence included oral evidence from four expert witnesses, the nature and effect of which we will discuss later. The evidence placed before the magistrate, over the objection of counsel for Mr Rahardja, also included the “supporting documents” sent to Australia by the Indonesian government.
8 The supporting documents were made up in two bundles, each bound together in a plastic spine, with a clear plastic cover sheet and a light cardboard backsheet. Each bundle was further bound by a yellow ribbon passing through it, from front to back; the loose end of the ribbon being secured on the backsheet by a red wax seal. As is agreed between the parties, by the time of the magistrate’s hearing, both seals had deteriorated to the extent that it was not possible then to read whatever inscription may initially have appeared on the seals. Apart from the fact that the documents in one bundle appear to be in the Indonesian language, whereas those in the other bundle are in English, there is only one difference between the two bundles. On the back of the English language bundle, underneath the end of the yellow ribbon and adjacent to the seal, is a typewritten note as follows:
“Translation of red seal:
‘Directorate General for Legal Affairs,
Department of Justice of the Republic of Indonesia’
JAKARTA, 24 June 1999
Ag. DIRECTOR OF CRIMINAL LAW
(signature)
NOOR MUHAMMAD AZIZ, SH
REG NO 040033020”
9 The signature in this note appears to be identical to a signature in a document that heads each of the bundles, the English language version of which reads:
“I, NOOR MUHAMMAD AZIZ SH, Acting Director of Criminal Law, Directorate General for Legal Affairs, Department of Justice of the Republic of Indonesia, hereby certify that the documents annexed to this certificate are prepared to support the request to the government of Australia for the extradition of HENDRA RAHARDJA, in accordance with Article 13 of the Treaty on Extradition between the Republic of Indonesia and Australia signed on 22 April 1992.
Jakarta, 24 June 1999
(signature)
NOOR MUHAMMAD AZIZ SH
Reg No. 040033020”
10 Each significant sheet in each bundle contained an endorsement:
“Jakarta, 24 June 1999
For Secretary of NCB - Interpol Indonesia
Deputy
(Signature and seal)
Drs H M Rachmat Tirtapradja
Police Colonel.”
The seal used in this endorsement was an ink seal in a shape resembling the Sydney harbour bridge, as reflected in the water. The seal bore the words:
“MARKAS BESAR KEPOLISIAN NEGARA RI
SEKRETARIS
SEKRETARIAT NCB - INTERPOL”
No translation of these words was provided.
11 The bundle contained a list of enclosures. The first enclosure consisted of two arrest warrants issued under the signature and stamp of Police Lt Colonel Djas Wardhana, SH on behalf of the Director of the Commercial Crime Department. It is not necessary to set out the whole of the wording of the two warrants; counsel for Mr Rahardja concede they are valid warrants under Indonesian law. However, it is necessary to mention the offences to which they refer. The first warrant (number SPP/R/48) identifies the offence to which it relates as “banking crime at PT Bank Harapan Sentosa with intentionally caused a false record to be entered in the accounts and in the report, to Bank Indonesia (Indonesian Central Bank) as mentioned in the article 49 clause 1 (a) of The Indonesian Banking Law No. 7/1992.” The second warrant (number SPP/R/47) alleges Mr Rahardja, at PT Bank Harapan Sentosa, committed “banking crime with intentionally failed to take the required steps to ensure the bank complied with the provisions of Indonesian law applicable to the bank as mentioned in article 49 clause 2(b) of The Indonesian Banking Law No. 7/1992”.
12 The supporting documents included a translation of article 49 of the Banking Law viz:
“(1) Member of the board of commissioners, directors of bank employee who with intent:
a. made or has caused a false record in the accounts or in the reports, as well as in the document or in a business activity report, in a bank transaction report or account.
is liable to imprisonment of a maximum fifteen (15) years and a maximum of fine of Rp. 10,000,000,000 (ten billion Rupiahs).
(2) Member of the board of commissioners, director of bank employee who with intent:
b. does not take the required actions to ensure the bank’s compliance with the provision of this law and provisions of other law applicable to the bank.
is liable to imprisonment of a maximum six (6) years and a maximum of fine of RP. 6,000,000,000 (six billion Rupiahs).”
13 We were informed during the hearing that there are currently about 8,600 rupiahs to the United States dollar. On this basis, about 5,000 rupiahs would equal one Australian dollar.
14 The bundle of English language documents included a five page “Summary of the Case” signed by Police Colonel Rachmat. It reads:
“Alleged offences
HENDRA RAHARDJA’s extradition is sought in relation to the following offences:
(a) one offence contrary to Article 49, clause 1(a) of the Republic of Indonesia Banking Law No.7/1992, in that he being a member of the board of commissioners of a bank he intentionally caused a false record to be entered in the accounts or in the reports, or in a document or in a business activity report, in a bank transaction report or account of the bank.
(b) One offence contrary to Article 49, clause 2(b) of the Republic of Indonesia Banking Law No.7/1992, in that being a member of the board of commissioners of a bank he intentionally failed to take the required steps to ensure the bank complied with the provisions of Indonesian law applicable to the bank.
Statement of Acts and Omissions by Rahardja
Between 1991 and 1997 HENDRA RAHARDJA was the President Commissioner of PT Bank Harapan Sentosa in Jakarta, Indonesia (the Bank). HENDRA RAHARDJA and his family were the major shareholders of the Bank. As President Commissioner of the Bank HENDRA RAHARDJA supervised the directors in carrying out the Bank’s business, operational and administrative, including activities such as, preparing the Bank’s accounts, the granting of loans and the provision of reports to the Indonesian Central Bank, Bank Indonesia.
Loans by the Bank in excess of one billion rupiahs were required to be approved by at least two members of the board of commissioners or by HENDRA RAHARDJA as President Commissioner.
Between 1991 and 1996 (inclusive) the Bank, at the direction of HENDRA RAHARDJA, granted loans to following six companies:
PT Artha Buana Sakti;
PT Prasetya Pertiwi;
Pt Setio Harto;
PT Eka Sapta Dirgantara;
PT Gaya Wahana Abadi Sakti;
PT Inti Bangun (the six companies)
The six companies were owned by HENDRA RAHARDJA and his family. They dealt in the property sector. The directors of the companies were appointed by HENDRA RAHARDJA and his son Eko Edi Putranto.
The total amount of the loans to the six companies during the relevant period, exceeded the maximum legal credit limit of 10% of the Bank capital. Article 11 clause 4 of the Republic of Indonesia Banking Law No. 7/1992 makes it an offence for a bank to lend a group of companies more than 10% of the bank’s capital.
On one occasion in 1993 Rahardja instructed the Bank’s directors to loan the six companies a total of Rp. 749,220,000,000 (seven hundred and forty-nine billion and two hundred and twenty million rupiahs). This amount was nearly six times the Bank’s capital at the time. At that time the Bank’s capital was Rp 129,010,000,000 (one hundred and twenty-nine billion and ten million rupiahs).
The loans made to the six companies were not made in accordance with ordinary banking procedures. There was no proper analysis against the credit application and were made without any credit collateral being provided by the six companies. In fact the money had already been withdrawn and used in advance by HENDRA RAHARDJA.
The directors of the six companies were instructed by Rahardja to sign the necessary application for the loans on behalf of the companies. While the bank purportedly made the loan to the companies the loan funds were never received by the six companies. The funds were in fact received and used by Rahardja for his own use.
The loans and their interest were never repaid by the six companies and the Bank was placed into liquidation by Bank Indonesia on 1 November 1997. Depositors of the Bank were not able to be paid by the Bank when they wished to withdraw their savings. Bank Indonesia had to assist to pay the depositors by providing Bank Indonesia Liquidation Assistance. Bank Indonesia paid out a total of Rp 2,233,524,000,000 (two trillion and two hundred thirty-three billion and five hundred twenty-four million rupiahs) to the depositors of the Bank.
Offence 1
HENDRA RAHARDJA instructed the President Director and Director for Credits of the Bank to produce a false report on behalf of the Bank, dated 29 February 1996, to Bank Indonesia. The report to Bank Indonesia falsely stated that the total amount of loans by the Bank to the six companies up to February 1996 was Rp 748,999,000,000 (seven hundred and forty-eight billion and nine hundred and ninety-nine million rupiahs). In fact the Bank had loaned the companies Rp. 2,052,838,000,000 (two trillion and fifty-two billion and eight hundred and thirty-eight million rupiahs).
HENDRA RAHARDJA instructed the directors to make the false report to Bank Indonesia to prevent Bank Indonesia detecting that the Bank had granted loan to the six companies in contravention of Article 11 clause 4 of the Republic of Indonesia’s Banking Law.
In accordance with a direction by HENDRA RAHARDJA the President Director and the Accounting Director issued a false financial statement dated 30 June 1996 on behalf of the Bank. The financial statement which was published in the Indonesian mass media falsely stated that the Bank had only lent the six companies Rp 266,912,000,000 (two hundred and sixty-six billion and nine hundred and twelve million rupiahs). Whereas at the time the Bank had lent the six companies over two trillion rupiahs. The statement was made to prevent depositors rushing to withdraw their funds from the Bank. It was also designed to prevent Bank Indonesia detecting the breach of Article 11 clause 4 of the Republic of Indonesia’s Banking Law No. 7/1992.
In accordance with a direction by HENDRA RAHARDJA the President Director and the Accounting Director caused a false record to be inserted in the Bank’s accounts in December 1996. HENDRA RAHARDJA instructed the President Director and the Accounting Director to insert a notation in the bank’s record that the six companies had made an interest repayment to the Bank of Rp 206,720,000,000 (two hundred and six billion and seven hundred and twenty million rupiahs). The accounts then stated that the interest was relent to the six companies. In fact no interest was ever paid by the company and no new credit given to it. HENDRA RAHARDJA instructed the directors to make the false entries to deceive Bank Indonesia that the six companies were meeting their loan obligations.
The members of the board of directors and bank employees complied with HENDRA RAHARDJA’s direction for fear of dismissal.
Offence 2
Because the loans to the six companies had exceeded 10% of the Bank’s capital, the Board of Directors and the commissioners, including HENDRA RAHARDJA, received a verbal warning from Bank Indonesia not to loan any more funds to the six companies. Subsequent to the warning from Bank Indonesia, on 21 January 1993 HENDRA RAHARDJA declared as owner of the six companies that he shall not submit any credit application any more to PT Bank Harapan Sentosa.
Even after the declaration the bank continued to grant loans the six companies. On 25 April 1994, HENDRA RAHARDJA in position as President Commissioner of the Bank was summoned by the Comptroller of the Bank Indonesia. During the meeting with the comptroller HENDRA RAHARDJA in his capacity as President Commissioner, member of the board of commissioners and board of directors of the Bank, signed a declaration witnessed by the Director of Comptroller and Vice Director of Comptroller Affairs of Bank Indonesia in which he declared that the Bank would not make any more loans to the six companies and would ensure that the companies reduced the amount owing to the Bank.
Contrary to the declaration by HENDRA RAHARDJA the Bank, in accordance with directions by HENDRA RAHARDJA, between 1994 to 1996 (inclusive) lent the six companies further funds. By February 1996 the six companies were indebted to the Bank in the sum of Rp. 2,052, 838,000,000 (two trillion and fifty-two billion and eight hundred and thirty-eight million rupiahs).
HENDRA RAHARDJA intentionally failed to ensure that the Bank complied with the Indonesia banking laws.”
15 The documents in the bundle also included a statement concerning the identity of Mr Rahardja. It included reference to an “alias”; namely Tan Tjoe Hing, the Chinese name borne by Mr Rahardja before 14 March 1967.
The hearing before the magistrate
16 As we have indicated, counsel for Mr Rahardja objected to the tender of the supporting documents. The magistrate overruled the objection, for reasons he then gave. In those reasons, he set out the submissions made to him by counsel for Mr Rahardja. These submissions were to the effect that there was no admissible evidence as to the identity of the seal used on the two bundles of documents. In making their submissions, counsel for Mr Rahardja had relied upon a decision of Hill J, Prabowo v Republic of Indonesia (1995) 61 FCR 258. However, the magistrate thought the facts of the instant case were distinguishable from those in Prabowo. He referred to the translation that appeared on the backsheet of the English version of the supporting documents signed by Noor Muhammad Aziz. He went on:
“He is, of course, the same person who certified the documents for the purposes of section 19(7)(a). The translation appears as part of the documents. I am of the view that as a result of the certification on the front of the document and the translation on the back of the document which forms part of the document, that the seal affixed is an official or public seal of a Department of State or Department of the Republic of Indonesia.
I am of the view that the translation is in the same position as each of the other documents annexed to the certificate. Hill J at page 268 suggested that the seal should disclose in English what it purports to be. I find it difficult to imagine how that could be done unless there was a seal with the same words in English. If it is suggested that an English version of the seal should be used on the English transaction [sic: translation], surely there is no difference and more authenticity if the correct Indonesian seal is used with a certified translation of the words.
I am satisfied that the documents do comply with section 19(7) and I am satisfied that the documents should be admitted under section 19(6). I should perhaps add that it is not possible for the other proposal suggested by Hill J to be adopted. He suggested that evidence could be given on oath of the translation of the words on the seal. That appears a simple solution but unfortunately the original wax seal is now broken and illegible.”
17 At the conclusion of the evidence, on 2 September, the magistrate adjourned the hearing for submissions on 17 September. On 24 September he gave judgment on the application and made the orders mentioned above.
18 In order to follow the magistrate’s reasons, it is necessary to refer to s19 of the Extradition Act. It reads as follows:
“19(1)Where:
(a) a person is on remand under section 15;
(b) the Attorney-General has given a notice under subsection 16 (1) in relation to the person;
(c) an application is made to a magistrate by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and
(d) the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;
the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.
(2) For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:
(a) the supporting documents in relation to the offence have been produced to the magistrate;
(b) where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate of any other documents – those documents have been produced to the magistrate;
(c) the magistrate 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; and
(d) the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence.
(3) In paragraph (2)(a), ‘supporting documents’, in relation to an extradition offence, means:
(a) if the offence is an offence of which the person is accused – a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant;
(b) if the offence is an offence of which the person has been convicted – such duly authenticated documents as provide evidence of:
(i) the conviction;
(ii) the sentence imposed or the intention to impose a sentence; and
(iii) the extent to which a sentence imposed has not been carried out; and
(c) in any case:
(i) a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and
(ii) a duly authenticated statement in writing setting out the conduct constituting the offence.
(4) Where, in the proceedings:
(a) a document or documents containing a deficiency or deficiencies of relevance to the proceedings is or are produced; and
(b) the magistrate considers the deficiency or deficiencies to be of a minor nature.
the magistrate shall adjourn the proceedings for such period as the magistrate considers reasonable to allow the deficiency or deficiencies to be remedied.
(5) In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought.
(6) Subject to subsection (5), any document that is duly authenticated is admissible in the proceedings.
(7) A document that is sought by or on behalf of an extradition country to be admitted in the proceedings is duly authenticated for the purposes of this section if:
(a) it purports to be signed or certified by a judge, magistrate or officer in or of the extradition country; and
(b) it purports to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal:
(i) in any case – of the extradition country or of a Minister, Department of State or Department or officer of the Government, of the extradition country; or
(ii) where the extradition country is a colony, territory or protectorate – of the person administering the Government of that country or of any person administering a Department of the Government of that country.
(7A) Subsection (7) has effect in spite of any limitation, condition, exception or qualification under subsection 11 (1), (1A) or (3).
(8) Nothing in subsection (6) prevents the proof of any matter or the admission of any document in the proceedings in accordance with any other law of the Commonwealth or any law of a State or Territory.
(9) Where, in the proceedings, the magistrate determines that the person is eligible for surrender to the extradition country in relation to the extradition offence or one or more of the extradition offences, the magistrate shall:
(a) by warrant in the statutory form, order that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22(5);
(b) inform the person that he or she may, within 15 days after the day on which the order in the warrant is made, seek a review of the order under subsection 21(1); and
(c) record in writing the extradition offence or extradition offences in relation to which the magistrate has determined that the person is eligible for surrender and make a copy of the record available to the person and the Attorney-General.
(10) Where, in the proceedings, the magistrate determines that the person is not, in relation to any extradition offence, eligible for surrender to the extradition country seeking surrender, the magistrate shall:
(a) order that the person be released; and
(b) advise the Attorney-General in writing of the order and of the magistrate’s reasons for determining that the person is not eligible for surrender.”
19 The magistrate said he was satisfied as to the four matters mentioned in subs (1); they were not in dispute. In relation to the supporting documents, mentioned in para 19(2)(a), he relied on the ruling given during the course of the hearing. The magistrate noted that the treaty documents required by para 19(2)(b) had been tendered. He pronounced himself satisfied about dual criminality, as required by para 19(2)(c).
20 In relation to the existence of an extradition objection, Mr Lulham noted the terms of para 7(c) of the Extradition Act viz:
“7. For the purposes of this Act, there is an extradition objection in relation to an extradition offence for which the surrender of a person is sought by an extradition country if:
…
(c) on surrender to the extradition country in respect of the extradition offence, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, religion, nationality or political opinions;”
21 The magistrate said he accepted the submission of counsel for Mr Rajardja “that the inquiry which I am required to make requires speculation on future events as distinct from making findings of fact in relation to events in the past. Therefore, it is inappropriate to apply an inflexible standard, such as the balance of probabilities, and a lesser degree of likelihood is sufficient to establish substantial grounds for the extradition objection.” The magistrate referred to tests accepted by Lord Diplock in Fernandez v Government of Singapore [1971] 1 WLR 987 at 994: “a reasonable chance”, “substantial grounds for thinking” and “serious possibility”. The minimum requirement, the magistrate said, referring to Hempel v Attorney General (1987) 77 ALR 665, is that the ground is “not trivial”.
22 The magistrate then analysed the evidence given by four expert witnesses, all called by counsel for Mr Rahardja. They were Associate Professor Charles Coppel of the Department of History, University of Melbourne; Associate Professor Timothy Lindsey of the Faculty of Law, University of Melbourne; Associate Professor Spencer Zifcak of La Trobe University; and Professor Daniel Lev, Professor Emeritus in the Department of Political Science, University of Washington, United States of America. Mr Lulham analysed the evidence of these witnesses. However, he was not persuaded that the evidence established there are substantial grounds for believing Mr Rahardja may be prejudiced at his trial or punished by reason of race.
23 Accordingly, the magistrate determined Mr Rahardja was eligible for surrender to the Republic of Indonesia in relation to the two extradition offences identified in para 1 above.
The review by Tamberlin J
24 Within 15 days of the making of an order under subs 19(9) of the Extradition Act, the affected person may apply to this Court for review of the order: see subs 21(1) of the Extradition Act. The Court conducts the review by reference only to the material that was before the magistrate: see para 21(6)(d) of the Act. Accordingly, in the present case, Tamberlin J did not see or hear any of the persons who gave oral evidence before the magistrate. He worked from the transcript of their evidence.
25 Tamberlin J summarised the evidence of each of the four witnesses. We will return to his summaries in due course. His Honour did not reject any of the expert evidence but he thought it did not establish what had to be proved. He said:
“In this case it is important not to lose sight of the specific question for determination. That is, are there substantial grounds for believing that the applicant, taking into account all the circumstances, including his ethnicity, the judicial and social system in Indonesia, and the magnitude of his alleged crime, may be prejudiced or punished or otherwise adversely differentially treated by reason of his Chinese ethnicity. Despite the voluminous evidence in relation to the social and longstanding culture of discrimination against ethnic Chinese in Indonesia, that specific question was not adequately addressed by the experts in the evidence. I do not think there is any substantial evidence that this applicant may be prejudiced at his trial on the ground of his Chinese ethnicity, or would be treated any differently from any other Indonesian accused of similar crimes.
…
It is true that no evidence was led by the respondent to counter the evidence given by the applicant’s four witnesses despite instructions being obtained from time to time during the course of cross examination by Counsel for Indonesia. However this does not require that this evidence of the applicant should be accepted as determining the question. The onus of establishing an extradition objection is on the applicant. For the reasons given above I consider that the assertions by the expert witnesses are not of sufficient substance in this case to make good the applicant’s contention.” [Original emphasis]
26 Tamberlin J went on to consider the submissions made on behalf of Mr Rahardja in respect of authentication of the documents and the alleged insufficiency of identification of the offences. His Honour rejected those submissions and dismissed the application for review.
Extradition objection evidence
(i) Professor Coppel
27 As it was not the subject of criticism before us, it is convenient for us to adopt Tamberlin J’s summary of the evidence of Professor Coppel. His Honour said:
“He has worked in the field of Indonesian Studies since 1966, and has continued that study with a particular focus on the Chinese minority. He has a law degree and a PhD and has published widely. He maintains contact with colleagues in Indonesia. He has made several trips to Indonesia and is fluent in the Indonesian language. He has paid special attention to the position of Chinese with respect to the legal system and has authored several publications on that subject. He says that the Chinese minority is seen as being an economically strong but a politically vulnerable group. In his view in order to appreciate the present position of the Chinese in Indonesia it is necessary to understand the long history of institutionalised discrimination against Chinese in Indonesia. He says this dates back to the time of Dutch colonial rule and has continued to the present time. He states that under the 1945 Constitution the Chinese had no automatic right to citizenship and therefore no entitlement to the constitutional guarantee that all citizens would have equal rights. He referred to preferences given to indigenous applicants seeking import licences during the period of the early 1950’s decade. A system then evolved known as the ‘Ali Baba’ system in which the Chinese were required to act in partnership with an indigenous ‘front man’ in order to conduct business. This became institutionalised particularly under President Soeharto.
Coppel said that there was continuing discrimination against Chinese until about 1965. During this period a large number of Chinese left Indonesia. Thereafter there were restrictions on Chinese festivals and writing, and Indonesian Chinese were put under pressure to assimilate by changing to an Indonesian name for example. Restrictions were also placed on the number of Chinese permitted to attend universities. Coppel went on to say that in many respects Chinese business thrived, but only with the assistance of influential indigenous partners. He says this gave rise to a false assumption that the wealthy were all Chinese and the poor were all Indonesians.
Coppel also refers to what he calls a practice of ‘scape goating’ Chinese businessmen during the Soeharto regime. This expression is used to describe a practice where a government under attack finds a group upon whom the hostility can be deflected. In addition to ‘scape goating’ of Chinese Coppel refers to a tolerance of anti-Chinese discrimination. Coppel noted that this pattern became more acute with the economic crisis experienced by Indonesia in late 1997. He refers in particular to ‘scape goating’ from the Government, the army and related persons and bodies through which prominent Chinese businessmen were accused of being disloyal. Local Chinese businessmen were seen to be responsible for speculation or hoarding, or taking advantage of the economic situation. This lead to massive riots in major urban centres which although not solely anti-Chinese were directed against them. In relation to the Habibie government which came to power in mid-1998 he agrees that tolerance for the overt anti-Chinese activity of the Soeharto years diminished but said that discrimination occurred in practice. He says that sentiment continued against Chinese businessmen, who are referred to in Indonesia as ‘conglomerates’. He says that this increased following the economic crisis of 1997. He says that there is a much stronger feeling of outrage because they are assumed to be guilty of economic crimes. He says that the applicant is a well known Chinese ‘conglomerate’. His conclusion was that it was unlikely that the applicant would receive a fair trial. He refers to a large financial scandal in the Jakarta press concerning Bank Bali which involved allegedly large scale fraud. He concedes that he was ‘not on top of the full detail of all of this’ nor did he have any familiarity of the persons involved. He expressed the view that as a consequence of this if an ethnic Chinses [sic] conglomerate were to be returned to Indonesia it would be seen as an opportunity by the President to show that he is vigorously pursuing matters to deflect attention from the Bank Bali scandals.
He agreed under cross-examination that under President Habibie the situation of Chinese in general had improved with steps taken to implement human rights legislation and that there appeared to be a more sympathetic attitude to Chinese business in order to encourage repatriation of Chinese resources. He also agreed that there was an improvement in freedom of the press and a greater inclination to criticise government. He expressed some caution and noted that Indonesia’s statements of intent are not necessarily matched with implementation and practice. He also expressed some doubt over the independence of the Press if they unfairly pursued a Chinese defendant and speculated with sufficient vigour. He considered that there remained a high degree of antagonism against high profile Chinese businessmen such as the applicant. He said that even moderate indigenous Indonesian leaders are very outspoken and critical of the conglomerates.”
28 Tamberlin J commented:
“Although this material indicates long-standing, and to some extent institutionalised, strong resentment against the Chinese community in certain circumstances, it does not cite any specific examples of cases in relation to the trial or appellate system which demonstrates ethnic prejudice and is cast at a broad generalised level. In my view it falls far short of satisfying the threshold called for by the Act and indeed does not assist in relation to the question before the Court.”
(ii)`Professor Lindsey
29 Tamberlin J summarised Professor Lindsey’s evidence in this way:
“Lindsey teaches South East Asian law and holds a PhD in Indonesian History and Politics from the University of Melbourne. He has published widely in relation to the Indonesian legal system and has advised the Indonesian government on competition law and trading. He is a regular visitor to Indonesia and is fluent in the language.
Lindsey’s evidence was that in order to understand the operation or effect of Indonesian legislation one must look to the practical application of the laws rather than ‘black letter law’. He emphasised the Indonesian legal system’s character as a branch of the executive government. In turn this necessitates an understanding of the relevant government policy, government culture, and the historical behaviour of the government towards the judiciary.
Lindsey said that the notion of separation of powers is rejected in Indonesia. The judicial system is subservient to the executive government. The Supreme Court and the judicial apparatus are answerable to the President which has the effect of placing the Supreme Court judicial apparatus under the Minister for Justice. Accordingly the system lacks independence and the judicial system is used by the State to run politically popular trials. In regard to proposals to improve the judiciary, Lindsey said these are limited and symbolic and have not resulted in significant change.
Lindsey said it is public knowledge in Indonesia, without giving specific examples, that Chinese defendants are selected from a group of possible defendants in any particular transaction. He referred to the case of the applicant’s brother Eddy Tunsil. Tunsil was prosecuted and convicted of high level fraud charges. Lindsey said that a number of other prominent Indonesians were also involved in the offence, including high ranking members of the government. The ‘selection’ of Tunsil was said to fit the pattern of selecting an ethnic Chinese defendant. This is because it is politically convenient for a court to be seen as punishing an ethnic Chinese person who is regarded as a conglomerate. He uses expressions such as there being 'political mileage' for the administration and being seen to punish 'that sort of person’.
Lindsey expressed the view that there was no prospect that the applicant would receive a fair trial if extradited to Indonesia. He referred to the dysfunction which he perceived in the Indonesian judicial system due to political influence and corruption and concluded that as a result ‘any defendant in a case involving the State is unlikely to be acquitted’. He then suggested that this was particularly true for a high profile ethnically Chinese business person or conglomerate because of an anti-Chinese agenda running among members of the government, and because such ‘scape goating’ distracts attention from corruption scandals. Further, the applicant’s association with Tunsil would make him a ‘scape goat’. Lindsey considered that it was likely he would receive an especially heavy sentence due to his Chinese ethnicity. He expressed the view that the applicant’s case would be politically significant and would be covered by the media in great details. The applicant’s political significance was said to arise from his status as a wealthy Chinese businessman.”
30 Tamberlin J expressed this view of Professor Lindsey’s evidence:
“I do not find the evidence of Lindsey to be of significant weight on the specific question for determination; which is whether as a consequence of his ethnicity the applicant would experience prejudice at his trial or have his punishment increased for ethnic reasons. Lindsey’s evidence is also highly generalised and speculative. Although it sets a general background of prejudice and a non-independent, corrupt system it does not greatly advance the applicant’s position in relation to the specific question for consideration.”
31 We add three matters to Tamberlin J’s summary of the evidence of Professor Lindsey. First, the Professor told the magistrate that “any defendant in a case involving the State is unlikely to be acquitted.” Second, although he offered the Tunsil case as “a classic case of ethnic discrimination” - indeed he said it was his “best demonstration of a case of scapegoating ethnic Chinese” – Professor Lindsey admitted he knew little about the case. He based his citation of that case on “the understanding of the case in Indonesia”, which he said he accepted. He agreed that part of the reason for his acceptance was that “Admiral Sudomo seemed to be involved but was not prosecuted”.
32 Under cross-examination, Professor Lindsey gave this evidence:
“First of all, the fact that one person involved with an offence is not prosecuted and others are, in itself does not mean anything, does it?---Not necessarily.
No, because that happens in Australia, does it not?---Yes.
That depends upon the availability of the evidence against the person concerned?---It could depend on a whole range of factors, including that.
Indeed, you may have a situation in which someone who could well be a principal in a joint enterprises offence may not be prosecuted because of inadequacy of evidence and the lesser offenders may be because they happen to be the ones with their hands on the money, so to speak?---Could be. There are many different reasons for not prosecuting a case, yes.
Well, why did you select Admiral Sudomo as an example of someone who was not prosecuted in order to demonstrate that Mr Tunsil was scapegoated?---As I said, it was widely understood in Indonesia that he was selected from a range of potential defendants as, if you like, the fall-guy in that case and my selection is based on that common understanding in Indonesia. In particular, the failure to mention the name of the President’s youngest son at the trial indicated that a range of people who had been - - -
I’m asking about Admiral Sudomo. Your state of knowledge is based on what some knowledge of the understanding of people in Indonesia, is it?---Yes.”
33 Professor Lindsey said that, on his understanding of the case, Admiral Sudomo’s involvement was limited to providing a memorandum of introduction that enabled funds to be provided by the Development Bank. When asked what criminal offence was involved in that, he replied that he was “not saying that there necessarily was a criminal offence involved in the production of the memorandum”. He agreed he did not know of any criminal activity by Admiral Sudomo. But he said there is a “common understanding in Indonesia that … Tunsil was selected from a range of defendants including Sudomo for prosecution”. The evidence proceeded:
“I’m not asking about the common perception. I’m asking about you and your view, having given evidence, that you suggest this was a classic case of an ethnic Chinese person being selected as a defendant and scapegoated?---Yes.
Do you believe that?---Yes.
You have got no belief - - - ?---On the basis - - -
- - - of Admiral Sudomo’s criminal activities?---No, on the basis of, as I’ve said, on the basis of common understanding in Indonesia or common view of the case in Indonesia, I’m reporting that and it is commonly the view that that is what occurred. I have no personal knowledge of the case. I have not seen the transcript or materials. That is as far as my knowledge goes so I couldn’t comment further on it.
- So it is not your view?---Only except, as I’ve said, I’m reporting the common knowledge in Indonesia and what is said about the case and I accept that it is accurate, but I have no personal knowledge of those events.”
34 Finally, Professor Lindsey said he had “observed a number of cases at the courts of first instance involving Chinese defendants charged with fraud” which had resulted in convictions. But he did not suggest these trials had been conducted differently to those of non-Chinese defendants or that he had ever seen bias overtly displayed. He emphasised it was usual for accused persons to be convicted, whatever their ethnicity.
(iii) Professor Zifcak
35 Tamberlin J offered this summary and comment on Professor Zifcak’s evidence:
“Zifcak principally teaches constitutional law and human rights law. He has a PhD in Politics and Public Administration. Since 1993 Zifcak has been Deputy Chair of the Australian section of the International Commission of Jurors and has prepared reports for that body on human rights and political trials in Indonesia and made several trips to Indonesia to observe the Indonesian legal system. He has also published other works on democracy, human rights and justice in Indonesia. Zifcak’s general impression is that the judges in the matters he witnessed, which were anti-subversion trials, were uninterested in hearing the defence side of the argument. In April 1998 he returned to Indonesia as a member of a delegation in relation to the independence of the judiciary with respect to human rights and political prisoners. Zifcak outlined his impression from the visit that judicial corruption was endemic and said this was acknowledged by the Minister for Justice and by senior Judges. Zifcak also outlined what needs to be done to change the Indonesian system.
Under cross-examination Zifcak conceded that there had been some indication of a movement towards reform by the Habibie government although he had reservations about the practical effect of this. As is the case with Lindsey’s evidence Zifcak’s evidence does not bear specifically or directly on the question of prejudice on the ground of Chinese ethnicity at trial. Rather it serves only as general re-enforcement of the evidence of corruption and executive interference said to permeate the Indonesian judiciary. ”
(iv) Professor Lev
36 Tamberlin J made this summary of Professor Lev’s evidence:
“Lev was formerly a Professor in the Department of Political Science at the University of Washington in the United States. He was awarded a PhD at Cornell University in 1964. His PhD was in Comparative Politics focussing principally on Indonesia and Malaysia. Lev has also written extensively on the Indonesian legal system and has studied Comparative Law in relation to South East Asia for a considerable time in the order of forty years. In the course of his research Lev interviewed extensively those who work in the system such as judges, prosecutors, police advocates, court clerks and accused persons and has seen ‘hundreds’ of trials in Indonesia. Similarly to the other witnesses called by the applicant, Lev referred to the historic growth of corruption and dysfunction in the Indonesian legal system. He referred generally to politically expedient decisions being provided where necessary and could only recall one political trial since 1978 where the accused had been acquitted. Money, more than legal argument, generally determine the outcome of proceedings.
When he was referred to the position of the ethnic Chinese within Indonesia, and the applicant’s case in particular, Lev gave evidence broadly consistent with Coppel. Particularly he supported Coppel’s views in relation to the current and historical ‘scape goating’ of the Ethnic Chinese and the tendency of the state to punish them for political reasons. He agreed with Coppel that hostility and discrimination against the Chinese minority was still institutionalised in Indonesia today. He also agreed with Zifcak’s observations in relation to anti-subversion trials. Further he said that any trial of the applicant in Indonesia would be subject to the same types of defects. An accused such as the applicant would be denied an independent assessment of any evidence he might call to counter the allegations against him. Lev asserted that he could not imagine, at the present time, that any panel of judges would seriously consider evidence in support of an acquittal even if the evidence were overwhelming. Lev believed that if the applicant’s ethnicity, and the prejudice against the ethnic Chinese conglomerates were taken into account, the applicant’s case would be prejudiced. He said, importantly, that while being close to those in power conferred some protection, the applicant’s case would be improved if he was an indigenous Indonesian.
Lev also referred to the case of Eddie Tunsil and expressed the view that his ethnicity was ‘very helpful’ to the government, and that this affected the way he was dealt with. Under cross-examination he could give no example, apart from his allegations in the Tunsil case, of an ethnic Chinese who had been prosecuted since the current economic crisis began in 1997, despite the alleged practice of 'scape goating' following the banking and economic collapse. Nor could he recall any case in Indonesian legal history where anybody, be they ethnic Chinese or indigenous Indonesian, had been charged with a fraud of this magnitude. Further, when pressed, Lev’s knowledge of the Tunsil case, the facts and reasons for conviction, were very vague and uncertain.
I note that Lev agreed with Counsel that five indigenous Indonesians were charged in the Tunsil affair but he did not ‘have the slightest idea’ what happened to them. Lev said that it was not true that ethnic Indonesians were not charged and tried but they were not paid as much attention as an ethnic Chinese. He also accepted that Tunsil was able to buy his way out of goal. Although he refers to the Tunsil case he concedes that he did not follow the case very carefully and that it was not a case in respect of which he did any special research. Nor did he know what the evidence the government held against Tunsil. He referred to a prominent Indonesian, Admiral Sudomo, who was not prosecuted however he had no material to indicate that Admiral Sudomo was involved or guilty. In my view the evidence of Professor Lev does not advance the applicant’s case.” [Original emphasis]
Extradition objection submissions
(i) The appellant
37 Counsel for Mr Rahardja emphasise the nature of the relevant test: there are “substantial grounds for believing” (para 19(2)(d)) that “the person may be prejudiced at his … trial or punished … by reason of his … race” (para 7(c)). The inquiry is speculative, because it is concerned with future and hypothetical events, say counsel. In view of the relevant terminology, they submit, “it is inappropriate to apply an inflexible standard, such as the balance of probabilities, and a lesser degree of likelihood is sufficient to establish substantial grounds for the extradition objection”. Counsel submit the minimum requirement is that the substantial ground of belief be “not trivial” or merely theoretical. Counsel emphasise it is sufficient there be a real chance of prejudice; it does not matter that the chance may be far less than a fifty percent chance.
38 Counsel also put two propositions which, they suggest, derive from Cabal v United Mexican States (No.2) [2000] FCA 445:
“The requirement of substantial grounds for believing that there is an extradition objection should not be applied with undue rigour and must have regard to the legislative purpose of preventing arbitrary or unjust detention and punishment.”
“The speculative nature of the extradition objection provided for in s7(c) is such that the evidence relied upon to establish the objection may be indirect or circumstantial in character.”
39 Arguing by analogy with the principles applicable to refugee cases, counsel also submit it is not necessary to establish that “race, religion, nationality or political opinions” is the sole reason for the possible prejudice; it is enough that it is a contributory reason. Counsel for Mr Rahardja contend Tamberlin J misunderstood the relevant test. They say this is evident from his inappropriate use of the word “would”. They refer first to his Honour’s comment on Professor Lindsey’s evidence reproduced in para 30 above. His Honour there described “the specific question for determination” as being “whether as a consequence of his ethnicity the applicant would experience prejudice at his trial or have his punishment increased for ethnic reasons”. Also, the passage reproduced at para 25 above includes the sentence: “I do not think there is any substantial evidence that this applicant may be prejudiced at his trial on the ground of his Chinese ethnicity, or would be treated any differently from any other Indonesian accused of similar crimes”.
40 Counsel also complain that Tamberlin J wrongly discounted, or excluded from consideration, evidence, on the ground that it was speculative or general in nature. They refer to passages in which his Honour referred to evidence as “highly generalised” or “speculative” or in which he said the evidence did not advance the appellant’s case. Allied to this, counsel submit Tamberlin J erred in criticising the absence of specific examples of Chinese defendants being prejudiced by reason of their ethnicity. Counsel argue:
“The inquiry was whether or not there are ‘substantial grounds for believing’ that the appellant ‘may’ be prejudiced. This, it is submitted, is satisfied by the conclusions of the expert witnesses based upon their independent research and observations in relation to the Indonesian society and legal system. To require further conclusive evidence of specific examples of other Chinese defendants being prejudiced is contrary to the applicable principles because it imposes an inflexible standard which places undue emphasis on specific past events. That is, such an approach effectively ignores the weight of the evidence and, instead, imposes an additional requirement that there must be conclusive evidence that other Chinese defendants had been prejudiced in the past.
The error of such an approach is clear because of the inherent difficulties in adducing evidence that a defendant in a criminal trial is, let alone will be in fact, prejudiced by reason of race. There will, necessarily, remain the alternative hypothesis that a defendant is charged and tried and subjected to a heavy penalty because he or she is guilty of the alleged offence, rather than by reason of race.
Similarly, in relation to irregularities occurring in a trial there is available an alternative hypothesis, namely, that the irregularities are due to the general dysfunction of the judicial system and are not by reason of race.
To require, in effect, a conclusive rebuttal of such alternative hypotheses is, it is submitted, to go far beyond the standard imposed under the Act and to require proof of the extradition objection to a state of certainty.” [Original emphasis]
41 Counsel for the appellant place weight on the expertise of the four witnesses and the fact that the Republic of Indonesia called no rebutting evidence. They say the absence of contradiction should have caused Tamberlin J to infer that the Republic’s case would not have been assisted by any evidence it may have called: Jones v Dunkel (1959) 101 CLR 298 at 312, 321.
(ii) The respondent
42 Counsel for the respondent do not challenge their opponents’ submissions regarding the appropriate test. But they dispute the contention that Tamberlin J misunderstood the test. They say the appearance of the word “would”, on one occasion in his Honour’s judgment, does not indicate any misunderstanding.
43 Counsel for the respondent point out that none of the four witnesses specifically stated that the appellant may not receive a fair trial by reason of his race, or because he is of Chinese ethnicity. They say (correctly we think) the “closest any witness came to expressing such a view was Professor Lindsey”. They cite two passages of his evidence. The first is from his evidence in chief:
“So in the various ways in which you have put it the ethnicity or race of Mr Rahardja would be relevant in a direct respect to the prospect of him receiving a fair trial?---Yes. I believe that was what I was saying was to try and link the issue of judicial corruption, judicial dysfunction together with the economic crisis to indicate, your Worship, that the Chinese conglomerate are targets and they would have virtually no prospect of obtaining acquittal in any Court in Indonesia in the current climate because of the fact that they are Chinese conglomerates.”
This matter was taken up in cross-examination:
“Well, given the hypothesis that he is charged, or were to be charged, what difference would there be in the trial and punishment of someone who is not ethnic Chinese?---I would say that there was more chance that that person would obtain a fair hearing and there might even be a possibility of acquittal if the person was well connected with the political elite.
Why do you say that?---Because I think it is likely that a non-ethnic Chinese person who is well connected to the political elite, could secure an acquittal in a case involving the State, simply by reason of connections with the people who control the State that is the political elite. Whereas, there is no – the political cost of obtaining an acquittal for a non-ethnic Chinese person is so much less than the cost of acquitting an ethnic Chinese, so I would say there would be a prospect of acquittal in a case such as that, whereas I don’t believe there would be any prospect of acquittal for an ethnic Chinese conglomerate per se. You see, the point here is ‘political connection’. If you are a highly placed person within that system you are a non-ethnic Chinese, then you may be able to call in political influences to secure your release. Whereas, in the case of Mr Rahardja I don’t think that would be available whatever the previous connections would be.”
44 Counsel for the respondents made an extensive analysis of the evidence of the four experts. They offer this comment:
“The submissions of the Appellant on this issue really involved a convergence of three ideas: first, that ethnic Chinese are selectively prosecuted; second, that a defendant rarely succeeds in securing an acquittal, particularly in a commercial fraud case; and third that ethnic Chinese are discriminated against generally. As has been pointed out above, there was no evidence that the Appellant was selectively prosecuted. Next, if defendants in commercial fraud trials are rarely or never acquitted, then ethnicity cannot be relevant to probability of conviction. There was no suggestion that a Chinese Indonesian never succeeded in a criminal case, nor was there any evidence, empirical or otherwise, to suggest that the rate of conviction of ethnic Chinese was greater than the norm. The fact that there is discrimination against Chinese in Indonesian society does not of itself, or in combination with the other matters discussed, lead to a conclusion that this Appellant may be prejudiced at his trial or would be in any worse position than any other defendant before an Indonesian court facing the same charge.”
45 On this aspect of the case, counsel for the respondent conclude:
“For the most part, the evidence adduced by the Appellant before the Magistrate was of the nature of a critique of Indonesian society and the Indonesian justice system. It did not demonstrate that the Appellant may be treated in a differential (worse) way within the criminal justice system for the offences for which extradition is sought by reason of his race. No specific evidence was called to show that any individual ethnic Chinese (except perhaps for some generalised ‘common knowledge’ relating to Eddy Tansil) had been prejudiced at his/her trial by reason of their race. It could be inferred that the Appellant, at least, was in a position to give such evidence, if any prejudicial treatment had in fact been accorded to his brother.
There was an absence of any empirical evidence to demonstrate that ethnic Chinese are or have been discriminated against by reason of their ethnicity in the Indonesian judicial system. The lack of empirical data is not answered by the witnesses’ claim to an anthropological approach which really meant resort to anecdote.
The totality of the evidence before the Magistrate failed to demonstrate that there were substantial grounds for believing that the Appellant may be prejudiced at his trial in Indonesia by reason of his race.
The Appellant failed to satisfy the Magistrate (or Tamberlin J) there were substantial grounds for believing that there was an extradition objection in relation to the two offences for which extradition was sought. It was clearly open to the Magistrate and to Tamberlin J not to have reached this state of satisfaction on the material presented before the Magistrate.
The submission that the Appellant will not receive a fair trial because of the inadequacies of the Indonesian judicial system can only properly be considered by the Minister for Justice when deciding whether or not to surrender pursuant to s.22.”
46 Section 22 of the Act confers on the Attorney General a general discretion whether or not to surrender an “eligible person” to the extradition country, but that discretion may be exercised in favour of surrender only if six specified matters apply, including that the Attorney General is satisfied there is no extradition objection in relation to the offence.
Extradition objection conclusions
47 We accept the submissions of counsel for the appellant as to the test that must be applied in considering whether there is an extradition objection in this case. As counsel say, the inquiry concerns future and hypothetical events. Necessarily, therefore, the Court is required to engage in a deal of speculation. And it is sufficient if the person raising the objection establishes a substantial or real chance of prejudice; it is not necessary to show a probability of prejudice or any particular degree of risk of prejudice.
48 Although we agree with counsel for the respondent that the non-existence of an extradition objection is a matter about which the Attorney General must be satisfied (under s22) before deciding to surrender the person to the extradition country, that does not relieve the magistrate of the necessity to consider the matter, if it is raised as an issue by the person whose extradition is under consideration. In the present case, the issue was raised and the magistrate considered it. He ruled the existence of an extradition objection was not established. Tamberlin J endorsed that ruling. The question is whether he erred in doing so.
49 Notwithstanding the submission of counsel for Mr Rahardja, we do not think Tamberlin J was under a misapprehension as to the test he was required to apply. In para 40 of his reasons for judgment, quoted at para 25 above, his Honour stated the “specific question for determination”: “are there substantial grounds for believing that the applicant … may be prejudiced or punished or otherwise adversely differentially treated by reason of his Chinese Ethnicity” (our emphasis). In the last sentence of that paragraph he again used the words “may be prejudiced” (our emphasis). The words “would be treated” are used in the context of making the point that there was no evidence of a practice of treating persons of Chinese ethnicity differently, at trial, from other persons. We think his Honour’s comment, in the passage set out in para 30 above, about Professor Lindsey's evidence should be read in the same way; it was a comment about the lack of specificity in that evidence upon the critical question of practices at trial.
50 If Tamberlin J did misunderstand the test, that would not necessarily mean the appeal should be allowed; we would need to consider whether his Honour’s order was erroneous. If, applying the correct test, the appropriate course for Tamberlin J would have been to dismiss the application for review, his Honour’s order should be allowed to stand.
51 Notwithstanding our view that Tamberlin J did not misunderstand the test, but having regard to the importance of the issue to the appellant, we have considered for ourselves whether the evidence placed before the magistrate provides substantial grounds for a belief that, if surrendered to Indonesia, Mr Rahardja might suffer prejudice at his trial or punishment because of his race. We have concluded it does not.
52 We take the appellant’s point that the evidence given by the four witnesses was not contradicted by evidence led on behalf of the Republic of Indonesia. As the evidence was not inherently improbable, that means it ought to be accepted for whatever, on a fair reading, it is worth.
53 The critical question is the worth of the evidence, having regard to the specific issue the magistrate had to decide. On the basis of the expert evidence, the magistrate found:
“1. The justice system in Indonesia is dysfunctional.
2. Corruption is rife amongst judicial officers.
3. The judicial officers are controlled by the Minister of Justice and there is no separation of powers.
4. Governmental interference occurs in most cases.
5. It is extremely rare for a defendant in any case against the State to be successful.”
54 However, the magistrate went on to say, we think rightly, “proof that the Indonesian justice system is in a deplorable state will not, of itself, prove the existence of any extradition objection”. The magistrate went so far as to “accept that the defendant will not receive a fair trial”. But he did this on the basis of Professor Zifcak’s general criticisms of the criminal justice system in Indonesia. He said those criticisms do not create an extradition objection; they “apply to each and every trial in Indonesia”. The magistrate went on:
“In my view much of the evidence called on behalf of the respondent was not directed to the all important question of prejudice by reason of race. The evidence of Professor Zifcak did not go to the question of ‘prejudice on the basis of race’ at all. The two articles which were tendered during his evidence do not refer to any problems based on race and indeed refer only to trials of indigenous Indonesians.
Professor Coppel gave interesting and informative evidence as to the historical basis for discrimination by the Indonesian Government at various times towards Ethnic Chinese. He discussed concepts such as the ‘Ali Baba System’ ‘Conglomerates’ and ‘Scapegoating’.
I am satisfied on his evidence that from time to time there has been institutionalised discrimination against the Ethnic Chinese in Indonesia. I am satisfied there is general hostility and jealously by indigenous Indonesians towards Ethnic Chinese. They are largely resented because they are seen to have been so successful. However Professor Coppel acknowledged that he did not claim to have any particular speciality in Indonesian law and could give no evidence of any past cases in which an Ethnic Chinese was prejudiced because of his race.
The two witnesses providing the most support to the respondent’s case were Professor Lindsey and Professor Lev.
However, even in relation to their evidence there is, in my view, a fundamental problem. Their opinions appeared to be predicated on the following hypothesis;
1. There is hostility towards Ethnic Chinese in Indonesia.
2. Because the Ethic [sic] Chinese are so unpopular it is in the Government’s political interest to blame or scapegoat Ethic [sic] Chinese for particular problems.
3. The Ethnic Chinese are seen as soft targets and vulnerable.
4. The judiciary is corrupt and controlled by the Government.
5. The judiciary knowing the Government’s wishes being anxious to please the Government will be prejudiced against Mr Rahardja and he will thus be prejudiced because of his race in any trial in Indonesia.
The problem in the argument is that not one of the four witnesses, notwithstanding their undoubted knowledge and expertise, could come up with one case which would support the proposition that an Ethnic Chinese had been prejudiced at his trial because of his race.
There is no evidence before me which would allow me to come to the view that Mr Rahardja’s brother Eddie Tansil was prejudiced either in relation to his trial or his punishment or his liberty because of his race. Indeed his race did not appear to adversely affect his ‘escape’ from prison at all.
If the practice of ‘scapegoating’ Ethnic Chinese is so widespread one would have expected there to have been numerous examples of Chinese Ethnics before the Court and prejudiced because of their race. The respondent’s experts could not point to one.”
55 We regard the last point made by the magistrate as being particularly important. Professors Lindsey and Lev, between them, had attended hundreds of criminal trials in Indonesia, including trials of ethnic Chinese charged with offences of dishonesty. Yet neither of them claimed ever to have observed discriminatory treatment of ethnic Chinese. When pressed in cross-examination about their claims that ethnic Chinese faired worse in the Indonesian justice system than non-Chinese Indonesians, they both talked about selective prosecution. Both witnesses said Indonesian authorities were more willing not to prosecute non-Chinese offenders, although both confessed to ignorance about their best example of this, the Tunsil case.
56 However, even if it is true that Indonesian authorities are more disposed to decide not to prosecute a non-Chinese Indonesian than a Chinese Indonesian, that fact does not establish there are substantial grounds for believing that Mr Rahardja may be prejudiced at his trial or punished by reason of his race. The question is what will happen at trial or on sentence, not whether persons of a different race would have a better chance of avoiding trial at all.
57 As will be apparent from his conclusions in paras 40 and 42, quoted in para 25 above, Tamberlin J analysed the evidence in a similar way. We think his analysis is correct. The evidence did not establish the existence of an extradition objection.
58 The appellant’s first ground of appeal fails.
Identification of the conduct the subject of the offences
59 Ground of appeal no 9 states:
“His Honour misconstrued the requirements for supporting documents under s 19(2) and s 19(3)(c)(ii) of the Act and erred in ruling that these requirements were satisfied.”
60 Paragraph 19(2)(a) of the Act requires that the supporting documents “in relation to the offence” must be produced. “Supporting documents” are defined in subs 19(3). In relation to an extradition offence of which a person is accused, para 19(3)(a) requires the production of a duly authenticated warrant, or duly authenticated copy of a warrant, issued by the extradition country “for the arrest of the person for the offence”. An additional requirement under para 19(3)(c)(ii) is the provision of “a duly authenticated statement in writing setting out the conduct constituting the offence” for which extradition is sought. The submission for the appellant in respect of this ground focuses on the repeated references specifically to “the offence”. It is therefore necessary that “the offence” for which extradition is sought be known.
61 The central submission on this aspect of the appellant’s case is that the offences for which extradition is sought cannot properly be identified from the warrants and statements of alleged conduct submitted by Indonesia.
62 The “Summary of the Case” by Police Colonel Rachmat, which is the document relied on as “the statement in writing setting out the conduct constituting the offence”, specified that Hendra Rahardja’s extradition was sought in relation to two offences which were described as follows:
“(a) one offence contrary to Article 49, clause 1(a) of the Republic of Indonesia Banking Law No. 7/1992, in that he being a member of the board of commissioners of a bank he intentionally caused a false record to be entered in the accounts or in the reports, or in a document or in a business activity report, in a bank transaction report or account of the bank.
(b) one offence contrary to Article 49 clause 2(b) of the Republic of Indonesia Banking Law No. 7/1992 in that being a member of the board of commissioners of a bank he intentionally failed to take the required steps to ensure the bank complied with the provisions of Indonesian law applicable to the bank.”
63 For convenience, we repeat the translation of Article 49 of the Republic of Indonesia Banking Law No. 7/1992:
“(1) Member of the board of commissioners, directors of bank employee who with intent:
a. made or has caused a false record in the accounts or in the reports, as well as in the document or in a business activity report, in a bank transaction report or account.
is liable to imprisonment of a maximum fifteen (15) years and a maximum of fine of Rp. 10,000,000,000 (ten billion Rupiahs).
(2) Member of the board of commissioners, director of bank employee who with intent:
b. does not take the required actions to ensure the bank’s compliance with the provision of this law and provisions of other law applicable to the bank.
is liable to imprisonment of a maximum six (6) years and a maximum of fine of RP.6,000,000,000 (six billion Rupiahs).”
64 Clause (1)a. of Article 49 of the Banking Law specifies several ways in which a person might be in breach, and the broad statement of the first offence does not particularise which of those various ways in which the clause might be breached is the offence for which the appellant’s extradition was sought. The description of the second offence, being the offence created by Article 49 clause (2)b. of the Banking Law, does not specify the provisions of Indonesian law applicable to the bank, non-compliance with which is one of the elements of the offence created by Article 49 clause (2)b. However, under the heading “Statement of Acts and Omissions by Rahardja” in the “Summary of the Case” document, appears the following:
“The total amount of the loans to the six companies during the relevant period, exceeded the maximum legal credit limit of 10% of the Bank capital. Article 11 clause 4 of Republic of Indonesia Banking Law No. 7/1992 makes it an offence for a bank to lend a group of companies more than 10% of the bank’s capital.”
65 The warrant in respect of the offence contrary to Article 49 clause (1)a. of the Banking Law calls for the arrest of the appellant:
“due to he is allegedly suspected of commiting banking crime at PT. Bank Harapan Sentosa with intentionally caused a false record to be entered in the accounts and in the report, to Bank Indonesia (Indonesian Central Bank) as mentioned in the article 49 clause 1 (a) of The Indonesian Banking Law No. 7/1992.”
The appellant says that no date, place or time of the alleged offence is specified, and further that the language in this warrant is duplicitous because it alleges both of the alternative offences available under Article 49 clause (1)a.
66 The second warrant seeks the appellant’s arrest:
“due to he is allegedly suspected commiting banking crime at PT. Bank Harapan Sentosa with intentionally failed to take the required steps to ensure the bank complied with the provisions of Indonesian law applicable to the bank as mentioned in the article 49 clause 2 (b) of The Indonesian Banking Law No. 7/1992.”
The appellant again says, of this warrant, that it alleges no place, date or time of the offence and fails to specify which Indonesian law the bank is alleged to have contravened. However, as the statement of the ground of appeal makes plain, this ground is not based on deficiencies in the two warrants, but rather asserts a failure to comply with para 19(3)(c)(ii) of the Act.
67 The Notice by the Minister under subs 16(1) of the Act specifies two extradition offences for which the surrender of Hendra Rahardja was sought, namely:
§ “falsifying bank records contrary to Article 49(1)(a) of Indonesian Law No. 7 of 1992 on Banks (one count); and
§ being a bank officer he intentionally failed to ensure the bank did not breach Indonesian banking law contrary to Article 49(2)(b) of Indonesian Law No. 7 of 1992 on Banks (one count)”
68 The warrant issued by the Magistrate pursuant to subs 19(9) of the Act also specified the two offences in respect of which the appellant was eligible for surrender to the Republic of Indonesia, in exactly the same terms.
69 In Wiest v Director of Public Prosecutions (1988) 23 FCR 472, Sheppard J said at 483:
“It seems to me that the Act provides for a simple and straightforward procedure. All it requires is a duly authenticated statement in writing setting out all the acts or omissions in respect of which the surrender of the person is requested. No doubt such statements may take a variety of forms, but with the assistance and advice which is apparently made available to countries seeking extradition of accused or convicted persons from Australia, I would have thought that it was not asking too much to expect a clear and unambiguous statement of the relevant acts and omissions, even if they be lifted (which it may well be appropriate to do in a given case) from another document such as the judgment here. Extradition is after all a serious affair, and there should be no room for uncertainty or misunderstanding.”
70 In Director of Public Prosecutions v Kainhofer (1995) 185 CLR 528, Gummow J noted at 556 a submission of “general importance” in that case by the appellants, namely that:
“…the content of arrest warrants can vary considerably from one extradition country to another and that the Act is designed to operate in respect of diverse systems of criminal procedure. They submit that the true question was whether, not having been convicted, nevertheless the respondent was wanted by the relevant authorities of the extradition country for prosecution in respect of extraditable offences.”
71 Gummow J said at 559:
“The need to construe extradition legislation in a fashion apt to accommodate criminal procedure of extradition countries which operates in a different fashion to that generally applicable in common law jurisdictions has long been recognised.”
72 And at 564 his Honour said:
“Care must be taken to allow … 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.”
73 There is therefore no requirement that the foreign warrant comply with Australian law concerning the content of arrest warrants.
74 In Zoeller v Republic of Germany (1989) 23 FCR 282, the Full Court (Lockhart, Gummow and Hill JJ) said of the enactment of the Act, at 299-300:
“… it does not follow from the adoption of this legislative scheme either that the warrants in the present case are invalid because they contain a statement of facts which goes beyond the facts necessarily constituting the offence in German or that the magistrate may have regard only to those facts which are absolutely necessary ingredients of the foreign crime. The magistrate is no expert in foreign law. He is not required to determine what the facts are that are the minimum facts necessary to constitute the foreign crime. That there has been a foreign crime committed is for the purpose of the proceedings before the magistrate proved by the warrant duly authenticated. What the facts relevant to that crime are is proved by the duly authenticated statement under s 19(3)(c)(ii). That the offence is an extraditable offence is proved by the s 19(3)(c)(i) document. All the magistrate is required to do is, by reference to Australian law, to determine whether the conduct referred to in the s 19(3)(c)(ii) statement is an offence under the law of a State or Territory of Australia or Commonwealth law.”
75 We turn to the gravamen of this ground of appeal, which is the complaint that there has been a default concerning the obligation imposed by s 19(3)(c)(ii), namely whether the “Summary of the Case” document in this case satisfies the requirement for a “statement in writing setting out the conduct constituting the offence.”
76 Of this requirement, Kenny J (with whom French J and Marshall J agreed) said in McDade v United Kingdom [1999] FCA 1868 at para 15:
“The provision of a statement setting out the conduct constituting the offence is designed to assist the magistrate in the performance of the tasks which the magistrate is charged to perform by virtue of s 19 of the Act: see Todhunter v United States of America (1995) 57 FCR 70 (‘Todhunter’) at 90 and Zoeller at 300. Presumably, too, the statement is designed to assist the Attorney-General in making any subsequent determination. See, for example, s 22(3)(d) and Wiest at 519 per Gummow J.”
And later:
“What is being sought is a clear and coherent statement of the actual acts and omissions which are said to constitute the offence. The statement must ‘speak with sufficient specificity’ and coherence to serve its purpose: see Linhart v Elms at 583 per Gummow J and Wiest at 483 per Sheppard J. The statement must be such as to permit the magistrate charged with conducting proceedings under s 19 to be satisfied, one way or the other, as to whether the conduct said to constitute the offence in the extradition country or the equivalent conduct, would constitute an extradition offence had it taken place in that part of Australia where the proceedings are being conducted: see Todhunter at 90, citing Riley v Commonwealth (1985) 159 CLR 1 at 18-19 per Deane J, and De Bruyn at par 7 per Hill and Hely JJ.
Having regard to the purposes of a s 19(3)(c)(ii) statement, a document will not meet the requirements of that provision if it is so vague and general or so disorganised that the relevant acts and omissions cannot be reasonably identified. Whether a statement relied on in satisfaction of that provision is to be accepted as a statement setting out the conduct constituting the relevant extradition offence or offences is essentially a ‘matter of practical judgment and assessment, not for over-zealousness in discerning deficiencies’: Zoeller at 294 and Wiest at 519.
77 The ultimate enquiry and, in our respectful opinion, the proper approach to it, was noted by Sheppard J at first instance in Zoeller (1988) 19 FCR 64 at 79, where his Honour said:
“Whilst one ought to look at the substance of requests of this kind and not be over-zealous in finding deficiencies in them due to the use of language which is not strictly in conformity with the Act or which is inelegant or inappropriate, one must be satisfied in the end that the requesting State has understood the conditions upon which the Australian Act will permit extradition. If one is not satisfied that it has, there is the danger that the requesting State will misunderstand its obligations with the consequence that the extradited person may be prosecuted for an offence which the authority to extradite did not permit.”
78 The five-page “Summary of the Case” signed by Police Colonel Rachmat is set out earlier. The contention by the appellant is that, while it purports to allege only one offence, contrary to Article 49 clause (1)a. of the Banking Law, it in fact discloses three separate offences under that clause, committed on 29 February 1996, 30 June 1996 and in December 1996. However, the circumstances alleged in February 1996 relate to a report made to Bank Indonesia, and the events concerning June 1996 relate to the making of a false financial statement which was published in the Indonesian mass media. It is only the matters referred to as occurring in December 1996 which relate to a false record being inserted in the bank’s accounts. Looking at the statement carefully and fairly, the statement sets out only one description of conduct constituting the offence of falsifying bank records contrary to Article 49(1)a. of the Banking Law.
79 Insofar as the statement deals with the second offence on which surrender is sought, namely that, being a bank officer, he intentionally failed to ensure the bank complied with the provisions of Indonesian law applicable to the bank, contrary to Article 49(2)b. of the Banking Law, the appellant submits that the “Summary of the Case” discloses two separate offences, relating to breaches of different undertakings given on 21 January 1993 and 25 April 1994. It is further said that the warrant and the statement of conduct fail to specify which Indonesian banking law the bank is alleged to have contravened. Again, on a fair reading of the statement, the relevant non-compliance by the bank with Indonesian banking law is identified as exceeding the maximum legal credit limit of 10% of bank capital, contrary to Article 11 clause 4 of the Banking Law, and the conduct constituting the offence is identified as the continuing conduct by Mr Rahardja in failing to ensure compliance by the bank with the prohibition of lending to a group of companies more than 10% of the bank’s capital. The continuing nature of the conduct described is also directed at showing that the failure by the bank to comply with the requirements of Article 11 clause 4 was neither inadvertent nor trivial.
80 The conduct constituting each of the two offences in respect of which surrender was ordered is set out with sufficient precision in the five-page document headed “Summary of the Case”. There has been compliance with the requirements of para 19(3)(c)(ii) of the Act in this case, and the primary judge did not err in so finding. Neither the rule of specialty, nor Article 8 of the Extradition Treaty with Indonesia, read with subss 22(3)(d) and 22(4) of the Act, would be undermined by the surrender of the appellant in respect of the two offences identified in the subs 19(9) warrant.
81 Paragraph 21(6)(g) provides that, if the court to which an application or an appeal is made determines that the person whose extradition is sought is eligible for surrender within the meaning of s 19(2) in relation to an extradition offence or extradition offences, the court shall include in its judgment on the review or appeal a statement to that effect specifying the offence or offences. In this case, the magistrate determined that the appellant was eligible for surrender in respect of two offences which he described, and there has been no other determination by the Federal Court, either at first instance or on appeal which requires a statement further to that made by the magistrate.
82 Specifically, the extradition offence of falsifying bank records contrary to Article 49 (1)(a) of the Banking Law is the offence, which is described in the document headed “Summary of the Case”, as follows:
“In accordance with a direction by HENDRA RAHARDJA the President Director and the Accounting Director caused a false record to be inserted in the Bank’s accounts in December 1996. HENDRA RAHARDJA instructed the President Director and the Accounting Director to insert a notation in the bank’s record that the six companies had made an interest repayment to the Bank of Rp 206,720,000,000 (two hundred and six billion and seven hundred and twenty million rupiahs). The accounts then stated that the interest was relent to the six companies. In fact no interest was ever paid by the company and no new credit given to it. HENDRA RAHARDJA instructed the directors to make the false entries to deceive Bank Indonesia that the six companies were meeting their loan obligations.”
83 The second extradition offence being that of failing, as a bank officer, to ensure the bank did not breach Indonesian banking law contrary to Article 49 (2)(b) of the Banking Law is the continuing failure by the appellant to ensure compliance with Article 11 clause 4 of the Banking Law over the period from 1991 to 1996 inclusive, described more particularly in the “Summary of the Case” document under the heading “Offence 2”.
84 The challenge based on ground 9 of the notice of appeal fails.
Admissibility of the supporting documents
85 Ground of appeal no 8 states:
“His Honour misconstrued the requirements for authentication pursuant to s 19(7) of the Act and erred in ruling that the supporting documents were admissible pursuant to s 19(6) of the Act.”
86 The appellant’s complaint in this regard is very narrow. It is common ground that subss 19(2) and (3) of the Act prescribe the documents which must be tendered in support of an application for extradition. Subsection 19(3) identifies specific documents, but para 19(2)(b), when read with s 11, contemplates the possibility that regulations may make special provisions applicable to requests from some countries. For present purposes, it is common ground that the regulations require that certain other documents be provided, including an English translation of all documents to be tendered. The Republic of Indonesia relies upon subss 19(6), 19(7) and 19(7A) of the Act to facilitate the receipt into evidence of all necessary documents including the translation. For convenience, we repeat those subsections:
“(6) Subject to subsection (5), any document that is duly authenticated is admissible in the proceedings.
(7) A document that is sought by or on behalf of an extradition country to be admitted in the proceedings is duly authenticated for the purposes of this section if:
(a) it purports to be signed or certified by a judge, magistrate or officer in or of the extradition country; and
(b) it purports to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal;
(i) in any case – of the extradition country or of a Minister, Department of State or Department or officer of the Government, of the extradition country; or
(ii) …
(7A) Subsection (7) has effect in spite of any limitation, condition, exception or qualification under subsection 11(1), (1A) or (3).”
Sub-section 19(5) is not presently relevant.
87 As we have said, before the magistrate, the Republic of Indonesia sought to tender two bundles of documents, one primarily in the Indonesian language and the other primarily in English. It seems the proceedings were conducted upon the basis that the proposed tender of the English bundle was in satisfaction of the requirement that there be an English translation of all the documents in the Indonesian bundle. We have already described the physical condition of each bundle. We understand it to be common ground that both wax seals originally bore identical impressions. Counsel for the Republic asserted as much at p 22 of the transcript of proceedings before the magistrate. He said, referring to the decision of Hill J in Prabowo v Republic of Indonesia:
“So that, clearly, if the seal which had been put on the second time had been accompanied by a translation, then the problem would have been overcome. What happened there was that the problem perpetuated itself because when the translation of the first seal was provided, it was accompanied by another seal which was not translated, so that the same problem just regenerated itself. Here, where the same seal applies, it appears twice, the second being the translation documents, it is accompanied by a translation and thus, the problem that Hill J identified is overcome.”
As far as we can see, the appellant did not dispute this statement in the course of his submissions in reply, and as much was implicit in the magistrate’s reasons. We did not understand counsel to take any different position before us.
88 Broadly speaking, para 19(7)(a) requires that documents be signed or certified by a prescribed person, while para 19(7)(b) requires they also be attested or sealed. The appellant submits the documents are not shown to have been properly attested or sealed.
89 As we have stated, there are numerous signatures and ink seals on the various pages in each bundle, quite apart from the wax seals to which we have referred. The Republic relies upon the signature of Noor Muhammad Aziz SH, which appears on the front page of each bundle and on the backsheet of the English bundle, as satisfying the requirements of para 19(7)(a). It relies upon the red wax seals, which were affixed to the backsheet of each bundle, as satisfying the requirements of para 19(7)(b). We understand the appellant to challenge only the extent of compliance with the latter paragraph, relying primarily upon the decision of Hill J in Prabowo.
90 In order to understand that decision, it is necessary to consider two other “extradition” decisions, the first being Zoeller v Federal Republic of Germany (1989) 23 FCR 282. The Full Court (Lockhart, Gummow and Hill JJ) was there concerned with an attempted tender of two bundles of documents, each bound with tape which was sealed with what appeared to be the seals of German courts. Both bundles contained documents in German, sealed with court seals and signed by a judge. In each bundle there was a document headed “Translation into the English Language”. The translations were not sealed or signed by a judge; but each contained, on its last page, a certificate, signed and sealed by the translator.
91 The Court concluded that neither bundle was authenticated as required by subs 19(7); although each was sealed, neither bundle was signed or certified as required by para 19(7)(a). However, in each bundle, there was a warrant, duly signed and sealed, which satisfied the requirements of subs 19(7). The only objection taken before the magistrate was as to the absence of a statement in writing setting out the conduct constituting the offence. The Court considered the warrants were sufficient to satisfy that requirement. There had been no complaint at first instance as to authentication, nor as to the admissibility of the English translations. In those circumstances, the Full Court held the various documents had, in any event, been properly received into evidence.
92 Their Honours observed that, although the German language documents were in evidence, they could not have been acted upon without appropriate translation, and any translation would have to be in admissible form. Because a translation had been received without objection, there was no difficulty in this regard. The Court said the necessary translation might otherwise have been provided by agreement or by a translator giving appropriate evidence. It seems no consideration was given to the possibility of authentication of the translation pursuant to subs 19(7), which was the course followed in the present case. It is interesting to note that, in the report of the decision, there is no suggestion that the wording on the seal, or that which identified the signatory as a judge, had been translated from the German in which it was presumably expressed.
93 The second case is Federal Republic of Germany v Haddad (1990) 21 FCR 496. That case involved an application for extradition of a convicted person, so the documentary requirements were somewhat different from those presently under consideration. Sub-section 19(7) was again relied upon as the basis for admissibility of the documents in question. On appeal, it was conceded by counsel for the Federal Republic that it had failed to comply with the requirements of that subsection. Nonetheless, at 497 the Court (Pincus, Foster and von Doussa JJ) said:
“Exhibit 3 was tendered to establish matters mentioned in s 19(3) of the Act, namely the conviction, the sentence imposed, the extent to which it had not been carried out, a description of and the penalty applicable in respect of the offence and the conduct constituting the offence … . The exhibit consists of some material in the German and some in the English language, and speaking generally, the English material is a translation of the German. However, the last sheet of the exhibit headed ‘Bescheinigung’, which has two seals upon it and appears to be intended to be an authentication of what precedes it, is not translated.”
94 It seems this last page, bearing the signature and seals, had been relied upon before the magistrate in Haddad, as evidence of signing and sealing for the purposes of subs 19(7). The Full Court appears to have assumed compliance with the provisions of para 19(7)(a) and to have considered only the question of compliance with para 19(7)(b). At 498, their Honours said of the decision in Zoeller:
“The Court held that:
‘For a tribunal to act upon the document, applying its own understanding of the foreign language uncommunicated to the parties will involve an abuse of natural justice.’
What the Full Court had to say about the necessity for translation of documents to be placed before the Court did not have to do with material such as that with which we are concerned – the last page of Ex 3; it was directed rather to what might be called the substantive, not the authenticating, material. Further, it was obiter.
However, it appears to us, with respect, that this principle necessarily applies to the last page of Ex 3. A person familiar with the German language might well have understood, as the learned magistrate apparently did, that the authentication was intended to be constituted only by one of the seals and that the rest of the writing on the page and the other seal were irrelevant to the question of authentication. However, we are of opinion that, wholly untranslated as it was, the last page was simply inadmissible and that the magistrate was in error in holding that one of the seals on that page satisfied s 19(7)(b) partially quoted above and holding, by implication, that the rest of it was irrelevant. It was not a proper course, in our view, to speculate as to what was the effect of any of the material on the last page of Ex 3. We have, in arriving at this conclusion, followed and somewhat extended the statement of principle of the Court in Zoeller’s case; we act on the view that material placed before the Court to satisfy the requirements of s 19(7)(b) should not be received, if written in a language other than English, unless its English meaning is proved or admitted.”
95 As we understand it, the “extension” by the Court in Haddad of the decision in Zoeller was to require that authentication provisions designed to satisfy the requirements of subs 19(7)(b) be translated into English. In Zoeller the Court had considered only the need for translation of the “substantive” aspects of the documents.
96 In Prabowo the Republic of Indonesia followed a course similar in most respects to that which it adopted in the present case. It sought to tender two sets of documents, each bound with yellow ribbon across which was fixed a red wax seal. In each case the seal had been partly obliterated, although there were words in Indonesian discernible on it. One set of documents was completely in the Indonesian language; the other was in English and was presumably a translation of the Indonesian documents. On the front page of the English language version was a certificate by a Mr Machrany, Director of Criminal Affairs, Directorate General for Legal Affairs, Ministry of Justice of the Republic of Indonesia, certifying that the documents annexed were tendered in support of the request for extradition. Next to Mr Machrany’s signature was an ink stamp in the Indonesian language containing words which appeared to be the same as the words on the wax seals. The Indonesian bundle contained typed words in the Indonesian language. Again, Mr Machrany’s signature and an ink stamp appeared on the front page.
97 Objections taken before the magistrate were:
· That the documents were not validly authenticated because they did not purport to be signed or certified by a “judge, magistrate or officer”.
· That the wax seals and the ink stamps contained words in the Indonesian language, not translated into the English language.
98 The question of the identity of the certifying officer is not relevant for present purposes, no such point having been taken in these proceedings.
99 It seems that, in Prabowo, the magistrate granted an adjournment of the proceedings to enable the Republic to remedy perceived deficiencies in the documentation. At the resumed hearing, counsel for the Republic sought again to tender the English language bundle. By that time, it had been endorsed with the words:
“Translation of red seal:
Directorate-General for Legal Affairs, Ministry of Justice of the Republic of Indonesia.”
Below those words, also in ink, was the following notation:
“I, Indra Kesuma Oesman, Head of the Consular Section of the Embassy of the Republic of Indonesia, hereby certify that the Above translation of ‘Directorate-General for Legal Affairs, Ministry of Justice of the Republic of Indonesia’ is a true and correct translation of the red seal appearing above.”
That notation was followed by the signature of Ms Oesman, over which appeared a blue ink stamp with a design and words, again in the Indonesian language, and the word “Canberra”. There were further words written on the page which repeated the translation. They were followed by another signature by Ms Oesman as First Secretary, with a seal over that signature, again containing words in the Indonesian language and the word “Canberra”.
100 As to the seals, Hill J said (at 268):
“There is nothing in the Act itself which requires documents which are sought to be tendered as supporting documents to be in the English language. However, so far as the documents themselves are concerned, if they are to be acted upon it is obvious enough that they must be able to be understood by the magistrate and all parties. No doubt it is for this reason that Art 11(4) requires that documents submitted in support of a request for extradition be accompanied by a translation into the language of the requested State.
Section 19(7), so far as is relevant, requires authentication to “purport” to be by the use of a seal which is an official or public seal. Whether the seal purports to be a seal of a particular kind must appear on its face. It is hard to know how a document could purport to be sealed with an official or public seal if one could not read the material on the seal. Put simply therefore, for an instrument to purport to be sealed by a public seal of a particular kind it will be necessary either that the seal disclose in English what it purports to be or that some person translate into English the words on the seal again so that it can be seen what the seal purports to be.”
101 After referring to the decisions in Haddad and Zoeller, his Honour continued at 270:
“In the present case, the issue is a different one. Here, the Republic of Indonesia seeks to rely upon an authentication by reference to there being affixed to the document a seal of a particular kind. There is affixed to the document a seal (both a wax and an inked imprint) but the document itself does not enable one to say whether that seal purports to be a seal of the relevant kind so as to constitute an authentication. One could only ascertain that by some form of translation. Hence the documents originally sought to be tendered did not qualify as ‘supporting documents’ because the authentication had not been proven.”
102 His Honour concluded that the added translation of the seal on the original documents did not satisfy the requirement for authentication because it was “no more than the statement of a person purporting to be a translator not given in evidence.” His Honour considered that:
“Had there appeared a certification and seal in the English language upon the translation then no doubt it would have been admissible under s 19(6). The fact, however, that another seal was affixed again in the Indonesian language prevented that course. Thus the only way the translation of the material on the original seal could be admissible was by a translator giving on oath in the Court evidence of the translation. Unfortunately this was not done.”
103 Before turning to the appellant’s argument, it is appropriate to dispose of one matter. It was said in the course of argument that no point was taken regarding the destruction of the seals. Nonetheless some aspects of the written submissions seem to suggest to the contrary. We refer particularly to par 68 of the appellant’s outline. Out of an abundance of caution, we therefore draw attention to Norton, “A Treatise on Deeds” (2nd Ed, Sweet and Maxwell Limited, London, 1928) at 47-48:
“The cancellation of a deed by accident or mistake does not affect the deed, or the rights of any person thereunder.
Where the seal was pulled off by a little boy the deed was allowed to be given in evidence: Anon (1625), Latch, 226; Palm. 403.
A certificate of a bishop under the Act of Uniformity was produced which had only a small bit of wax upon it. Twisden, J.: ‘If it was sealed, though the seal be broken off yet it may be read, as we read recoveries after the seal is broken off, and I have seen letters of administration given in evidence after the seal broken off, and so of wills and deeds.’ Accordingly it was read : Clerke v Heath (1669), 1 Mod. 11.
‘It is not universally true that a deed is destroyed by an alteration, or by tearing off the seal. … In any case where the seal is torn off by accident after plea pleaded, the deed is held good’ (see 1 Roll. Rep. 40; Michael v Scockwith (supra); ‘ … and in these days, I think even if the seal were torn off before the action brought, there would be no difficulty in framing a declaration which would obviate every doubt upon that point, by stating the truth of the case. … The difficulty which arose in the old cases depended very much on the technical forms of pleading applicable to deeds alone’ : per Buller, J., Master v. Miller (1791), 4 T.R. 320, at p. 339; 2 R.R. 399.
‘I can no more consider this as avoiding the instrument than if it had been obliterated or cancelled by accident’ : per Lord Ellenborough, C.J., Henfree v. Bromley (1809), 6 East, 309, at p. 312; 8 R.R. 491.
‘If the absence of intention to cancel be shown, the thing is not cancelled’ : per Maule, J., Bamberger v. The Commercial Credit (1855), 15 C.B. 676, at p. 693; 24 L.J.C.P. 115; 100 R.R. 542; and see Perrott v. Perrott (1811), 14 East, 423.”
104 We take it as settled that destruction of a seal without the intention of revoking the document in question does not affect its validity and that this proposition applies to documents under seal which are not deeds.
105 The appellant’s argument appears to involve the following propositions:
· The decision in Zoeller establishes that evidence in a foreign language must be translated into English in order that it be used in the relevant proceeding.
· The decision in Haddad establishes that any words relied upon to satisfy the requirements of subs 19(7) must be similarly translated.
· In the present case the typed words below the seal on the back sheet of the English bundle were an “attempt to prove the meaning of the words as they appear on the illegible seal and, thus, to establish that the seal satisfied the definition in s 19(7)(b)(i).”
· In order that those words be admissible for that purpose, they must themselves be verified in the way contemplated by subs 19(7).
· “… the admissibility of the typed writing cannot be determined by reference to the certification on the front of the supporting documents. That certification is an independent requirement under s 19(7)(a)”. “In terms of admissibility, therefore, the typed writing must stand alone.”
· Subsection 19(7) prescribes “the dual requirements for authentication” which may not be “defeated in favour of a single requirement of certification”.
106 We see nothing in either Zoeller or Haddad with which we would wish to disagree. However we do not understand either case to be authority for the proposition that, in all circumstances, words in a foreign language upon a seal relied upon for the purposes of subs 19(7) must be translated into English. In many cases, such words, if translated, may assist in satisfying the requirements of para 19(7)(b), but that does not lead to the conclusion that such a translation will always be necessary. Paragraph 19(7)(b) requires that the document in question purport to be sealed with an official or public seal. The paragraph does not require that a seal take any particular form.
107 A seal on a deed may take many forms. In “Halsbury’s Laws of England” (4th Ed, Vol 13, par 26) the following passage appears:
“In certain circumstances, a deed must be sealed, that is it must have a seal fixed or impressed upon or attached to it, and the party professing to be bound by the deed must do some act expressly or impliedly acknowledging the seal to be his. It is not, however, necessary that any particular kind of seal should be used, provided that there is affixed or impressed to or on the deed something purporting to be a seal. Thus the seal may be of wax affixed on the deed or attached to it by a ribbon, or it may be a wafer, or it may be simply impressed on the deed. Indeed it may suffice that there is merely a printed circle inscribed with the letters ‘L S’ if the document was intended to be delivered as a deed of a party executing it.
The seal need not bear any indication that it is the particular seal of the person who affixes it. Thus it need not be stamped with his coat-of-arms, crest, or initials, or otherwise specially marked, and it became the practice to use wax or wafer seals with a plain impression. A deed may be sealed with another person’s seal.
108 If that is the state of our own law, there would seem to be no warrant for insisting that official or public seals used in foreign countries take any particular form. In particular, we do not understand the law to require that such a seal bear words that identity its status or identity. If, for example, the United States of America were to adopt a seal which merely bore an eagle with no further description, or if the Republic of Indonesia chose to use a seal which bore a design but no words, those seals would nonetheless be capable of being official and/or public seals. The requirement that the seal in question purport to be of the extradition country or of a Minister, Department of State or Department or officer of the Government of that country does not impose the additional requirement that any relevant seal so describe itself on its face.
109 If a seal bearing no words is capable of being an official or public seal of a country, Department or officer for the purposes of para 19(7)(b), then a question arises as to how a court should go about the task of assessing compliance with that paragraph. Counsel for the appellant suggested in the course of argument that it might be necessary to call evidence to identify the seal. However, we consider subs 19(7) is intended to facilitate the use of documents in extradition proceedings without the need to call oral evidence to prove their authenticity.
110 The answer, in our view, lies in the statutory requirement that such a document purport to be appropriately sealed. Such purport may be drawn from the document as a whole; not necessarily from the seal alone.
111 Hill J, in Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 128 ALR 149 at 155, considered the meaning of the verb “purport” in a different context. He adopted the following definition from the Macquarie Dictionary (2nd Ed Rev.):
“1. To profess or claim: ‘a document purporting to be official’.
2. To convey to the mind as the meaning of the thing intended; express; imply.”
We accept that definition for present purposes. If a document appears to bear a seal, then it purports to be sealed. To satisfy the requirements of par 19(7)(b), the document must profess or claim to be sealed with an official or public seal of the required kind. We consider that a document may achieve that result by asserting in its text that a seal which appears on it is of the prescribed status and identity.
112 We turn to the documents which are presently relevant, commencing with the English bundle. As previously observed, it is signed on the front page and on the backsheet, and is bound with tape and ribbon. At some stage, there was a seal affixed to the ends of the ribbon on the backsheet. Use of one signature and one seal to authenticate “an integrated bundle of documents” was approved by the Court of Appeal of New South Wales in a similar case, Ex parte Bennett, Re Cunningham (1966) 68 SR (NSW) 15 at 23. We do not understand the present appellant to take any point concerning that method of authentication. The signatory, for the purposes of para 19(7)(a), is Noor Muhammad Aziz SH. He is identified in the certificate as “Acting Director of Criminal Law, Directorate General for Legal Affairs, Department of Justice of the Republic of Indonesia”. The documents therefore purport to be signed by an officer of the government of Indonesia. As we have said, this is not disputed by the appellant. The only remaining question is as to whether the English bundle purports to be sealed with an official or public seal of the prescribed kind.
113 As already mentioned, the bundle tendered before the magistrate bore, beneath the wax seal, the words:
“Translation of Red Seal
Directorate General for Legal Affairs, Department of Justice of the Republic of Indonesia
Jakarta, 24 June 1999
Ag Director of Criminal Law
(Signature)
Noor Muhammad Aziz SH Reg No 040033020”
Thus the English bundle contains a translation of the words on the seal, identifying it as that of the Directorate General for Legal Affairs, Department of Justice of the Republic of Indonesia. There is no apparent reason why such a seal should not be described as an official or public seal of the Indonesian Department of Justice. It could equally well be described as an official or public seal of the Directorate General for Legal Affairs which is itself, we would infer, a Department of government; although possibly not in the technical sense in which the word is often used in Australia, namely to describe a section of the public service, headed by a Minister and responsible for a range of government operations.
114 We do not understand the appellant to take any point about the identity of the Department. His argument is that the words and signature on the backsheet should be seen as separate from, and so unauthenticated by, the seal. He contends that, although the seal, if interpreted in an admissible way, might authenticate all other documents in the bundle, it cannot authenticate the translation of its own wording; this wording must have its own distinct authentication.
115 This argument appears to be based upon the assumption that the typed words and signature on the backsheet were added after the document was sealed. This seems unlikely. If the seal were in place, the document could not easily have been placed in a word processor or typewriter for the purpose of adding the typed words. The words were probably added before the document was signed and sealed. In those circumstances, we infer that the whole of the bundle, including the typed words describing the wording on the seal, was authenticated by the addition of the signatures on the front page and on the backsheet and the affixation of the seal on the backsheet over the binding ribbon. In other words, the translation of the seal was probably typed in anticipation of the seal being affixed. This approach is quite common in our own legal system. A document which is to be sealed is often prepared with a “sealing clause”, such as “The seal of … was hereunto affixed …”. The bundle purports to be both signed by an officer of the Republic of Indonesia and sealed with an official or public seal of the relevant kind. In those circumstances, the admissibility of the English bundle, including the translation of the seal, is established.
116 As we have said, the case has been conducted upon the basis that the English bundle constitutes a translation of the Indonesian bundle. We therefore infer that the first page of the Indonesian bundle contains a certificate in Indonesian to the same effect as the certificate which appears on the front of the English bundle. Given that the case has been conducted upon the basis that the wax seals affixed to the two bundles were identical, it also follows that the translation on the backsheet of the English bundle is a translation of the wording on the seal affixed to the Indonesian bundle. That is sufficient to justify the receipt in evidence of that bundle, given that signing is not disputed.
117 Had it not been accepted that the wording on the wax seals was the same in each case, it may have been arguable that the same result would follow, but for different reasons. In the absence of a translation of the words on the seal affixed to the Indonesian bundle, it might have been reasonable to infer from the fact that it was signed by Noor Muhammad Aziz SH, that he had also sealed it. A court might well infer that it was his official seal, that is a seal appropriate to his office in the Indonesian government. It is not necessary to decide that matter.
Disposition
118 The appeal should be dismissed. The appellant must pay the respondent’s costs.
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I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. |
Associate:
Dated: 14 September 2000
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Counsel for the Applicant: |
B Walker SC T Game SC D Jordan |
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Solicitor for the Applicant: |
Corrs Chambers Westgarth |
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Counsel for the Respondent: |
P Roberts SC T Reilly |
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Solicitor for the Respondent: |
Commonwealth Director of Public Prosections |
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Date of Hearing: |
7-8 August 2000 |
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Date of Judgment: |
14 September 2000 |
