Federal Court of Australia

Rivas v Republic of Chile [2021] FCA 693

ORDERS

THE COURT ORDERS THAT:

1.    The application for review is dismissed.

2.    The order of Magistrate Stewart (the second respondent) dated 29 October 2020, made under s 19(9) of the Extradition Act 1988 (Cth), is confirmed.

3.    The applicant is to pay the first respondent’s costs to be agreed or taxed.

THE COURT DETERMINES THAT:

4.    The applicant is eligible for surrender, within the meaning of s 19(2) of the Extradition Act 1988 (Cth), in relation to the seven counts of aggravated kidnapping, contrary to Article 141 No.3 of the Criminal Code (Chile), for which her extradition is sought.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1    The first respondent, the Republic of Chile (Chile), has sought, pursuant to an extradition request presented to Australia, the extradition of the applicant, Ms Rivas, to face prosecution in Chile for seven counts of aggravated kidnapping, contrary to Article 141 No.3 of the Criminal Code (Chile).

2    The history of these proceedings is set out in Rivas v Republic of Chile [2019] FCA 1940 (Rivas (No 1)) and Rivas v Republic of Chile [2020] FCA 737 (Rivas (No 2)).

3    Relevantly, for current purposes, the events are as follows. On 6 August 2018, Chile presented the extradition request for Ms Rivas to Australia. On 26 October 2018, the Attorney-General issued a notice of receipt of the extradition request pursuant to s 16 of the Extradition Act 1988 (Cth). On 5 December 2018, a magistrate of the Australian Capital Territory issued an extradition arrest warrant in relation to Ms Rivas. On 19 February 2019, Ms Rivas was arrested pursuant to the warrant and was remanded in custody pursuant to s 15 of the Extradition Act. On 27 June 2019, following Ms Rivas being refused bail, which was the subject of review in Rivas (No 1), Chile applied for s 19 proceedings to be conducted. After the exchange of extensive material and submissions by the parties, those proceedings were conducted before the second respondent (the Magistrate) over four days in 2020. On 29 October 2020, the Magistrate delivered his decision, with written reasons provided (the Decision). The Magistrate found that Ms Rivas was eligible for surrender to Chile, and made an order committing her to prison by warrant in the statutory form, as required by s 19(9)(a) of the Extradition Act.

4    This is an application for review from the Decision, pursuant to s 21 of the Extradition Act.

5    For the reasons given below, the application is dismissed.

Statutory scheme

6    In Rivas (No 2) I outlined the extradition process at [25]-[37].

7    Given the nature of the applicant’s submissions in this review, it is appropriate to repeat that explanation of the process with some additional commentary.

8    The extradition process is described as involving four stages: Harris v Attorney-General of the Commonwealth [1994] FCA 1320; (1994) 52 FCR 386 at 389 (Harris) per Beaumont, Einfeld and Foster JJ; Liem v Republic of Indonesia [2018] FCAFC 135; (2018) 265 FCR 251 at [21] (Liem) per Mortimer, Wigney and Lee JJ. First, the commencement of the extradition process: ss 12 and 16; second, the arrest and remand or bail of a person: s 15; third, the determination of whether a person is eligible for surrender: s 19, and a right of review and appeal to this Court under s 21; and fourth, the discretionary decision of the Attorney-General of whether a person, if eligible, should be surrendered: s 22.

9    Section 19 involves a determination of eligibility for surrender and is relevantly in the following terms:

19 Determination of eligibility for surrender

(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 or eligible Federal Circuit Court Judge 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 or Judge considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;

the magistrate or Judge 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 or Judge;

(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 or Judge of any other documents – those documents have been produced to the magistrate or Judge;

(c) the magistrate or Judge is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and

(d) the person does not satisfy the magistrate or Judge 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 or Judge considers the deficiency or deficiencies to be of a minor nature;

the magistrate or Judge shall adjourn the proceedings for such period as the magistrate or Judge 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 or Judge 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.

…

(9)    Where, in the proceedings, the magistrate or Judge 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 or Judge shall:

(a)  order that the person be committed to prison or (subject to subsection (9A)) released on bail, to await:

(i)  surrender under a surrender warrant or temporary surrender warrant; or

(ii)  release, or the discharge of the recognisances on which bail was granted, under 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 under paragraph (a) 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 or Judge 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    The meaning of an “extradition objection” is set out in s 7 of the Extradition Act and is as follows:

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:

(a) the extradition offence is a political offence in relation to the extradition country; or

(b) the surrender of the person, in so far as it purports to be sought for the extradition offence, is actually sought for the purpose of prosecuting or punishing the person on account of his or her race, sex, sexual orientation, religion, nationality or political opinions or for a political offence in relation to the extradition country; or

(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, sex, sexual orientation, religion, nationality or political opinions; or

(d) assuming that the conduct constituting the extradition offence, or equivalent conduct, had taken place in Australia at the time at which the extradition request for the surrender of the person was received, that conduct or equivalent conduct would have constituted an offence under the military law, but not also under the ordinary criminal law, of Australia; or

(e) the person has been acquitted or pardoned by a competent tribunal or authority in the extradition country or Australia, or has undergone the punishment provided by the law of that country or Australia, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence.

11    In determining eligibility for surrender a magistrate or eligible Federal Circuit Court Judge is confined to considering the matters specified in ss 19(1) and (2) of the Extradition Act and cannot have regard to other matters falling outside the ambit of those sections: Director of Public Prosecutions of the Commonwealth v Kainhofer [1995] HCA 35; (1995) 185 CLR 528 (Kainhofer) at 538-539 per Brennan CJ, Dawson and McHugh JJ. In Kainhofer the s 19 stage was described as follows at 537:

A s 19 magistrate must be satisfied that the conditions of jurisdiction prescribed by sub-s (1) are satisfied. Then consideration must be given to the compliance of the supporting documents with the requirements of sub-s (2)(a) and (b). The character of "the conduct of the person constituting the offence ... or equivalent conduct" must be ascertained under sub-s (2)(c). And, finally, the magistrate must decide whether the person has shown any substantial grounds for believing that there is an extradition objection in relation to the offence: sub-s (2)(d). The term "extradition objection" is defined by s 7. (footnotes omitted)

12    It is not the function of a magistrate or eligible Federal Circuit Court Judge hearing an application pursuant to s 19 to determine whether the requesting State has met an obligation imposed under a treaty: Timar v Republic of Hungary [1999] FCA 1518 (Timar) at [82] per Weinberg J citing Federal Republic of Germany v Parker (1998) 166 ALR 522; (1998) 84 FCR 323 at 339 per Ryan, Einfeld and Foster JJ and Harris at 412-3 per Beaumont, Einfeld and Foster JJ. Nor is it permitted to consider or determine the validity or appropriateness of prior findings or decisions under the Extradition Act: Kainhofer at 538 per Brennan CJ, Dawson and McHugh JJ. Rather, it must proceed on the basis that, if the order of remand under s 15 and the s 16 notice are not invalid on their face, the person is an extraditable person and the orders are valid: Kainhofer at 539 per Brennan CJ, Dawson and McHugh JJ.

13    The extradition process in Australia involves no consideration or determination of whether the person whose extradition is requested by a foreign country is guilty or innocent of the extradition offence: Vasiljkovic v Commonwealth of Australia [2006] HCA 40; (2006) 227 CLR 614 (Vasiljkovic) at [33]-[34], per Gleeson CJ, and see s 3(a) and s 19(5) of the Extradition Act.

14    Section 21 of the Extradition Act permits a statutorily limited merits review of the Magistrate’s decision: Republic of South Africa v Dutton [1997] FCA 708; (1997) 77 FCR 128 (Dutton) at 136C. A s 21 review is a rehearing in which the court undertaking the review is authorised to reach its own conclusions on eligibility for surrender: Dutton at 136.

15    In Pasini v United Mexican States [2002] HCA 3; (2002) 209 CLR 246, Gleeson CJ, Gaudron, McHugh and Gummow JJ at [18] described the role of the Federal Court in an application for review:

…The magistrate is required to determine administratively whether a person is eligible for surrender to an extradition country. The Federal Court is required to determine whether that decision was right or wrong and, if wrong, what decision should have been made by the magistrate, thereby determining the rights and liabilities of the parties to the review proceedings and, thus, exercising judicial power.

16    In Cabal v United Mexican States (No 3) [2000] FCA 1204; (2000) 186 ALR 188 (Cabal (No 3)), French J described the nature of the hearing at [121]:

In review proceedings under s 21 of the Extradition Act the Court is required in effect to determine whether the requested person is eligible for surrender and whether, according to that determination, the magistrate’s decision should be confirmed or quashed. In so doing it finds, on the basis of materials that were before the magistrate, facts relevant to whether the necessary conditions of eligibility for surrender set out in s 19(2) have been established. In concluding the question of eligibility it will apply those criteria which involve legal principles set out in the Act. There is no policy determination involved. In its essential aspects the function of the Court under s 21 answers the requirements necessary for characterisation as judicial.

17    In Traljesic v Bosnia & Herzegovina [2016] FCA 383; (2016) 338 ALR 637 (Traljesic) at [54], Mortimer J observed:

A review under s 21, as the authorities have said, is in the nature of a rehearing: see Cabal [2001] at [100]; Dutton [1997] at [136]. As the plurality in Pasini emphasised at [18], the decision of the s 21 review court does not replicate the administrative decision of the s 19 Magistrate; the review court exercises judicial power in its determination as to whether the Magistrate’s decision was right or wrong and, if wrong, what alternative decision should have been made. The court must reach its own conclusion on the facts and the law, subject to the restriction in s 21(6)(d), read now with s 21A. Section 21A did not exist at the time Dutton [1997] and Cabal [2001] were decided, but see the Full Court’s comments in Cabal [2001] at [153], which identify the same concerns as those discussed in the second reading speech introducing s 21A. A review, of its nature, involves considering the decision under review and determining whether it is the correct decision (whether as to the facts or the law, or both).

18    I will refer to further aspects of the relevant principles when addressing the grounds of review.

Grounds of review

19    The applicant does not challenge that the pre-conditions to conducting the s 19 proceedings, set out in s 19(1), were satisfied in her case. Rather the applicant challenges all of the matters in s 19(2) of the Extradition Act. The applicant identifies 24 substantive grounds of review, which are not particularised by reference to the Decision. The amended grounds of review, as they appear in the application, are as follows:

1.    It was not open to the Magistrate to conclude that in fact the documents produced by the Respondent (The Applicant Below) disclosed acts and/or omissions of the Respondent such as to enable a determination under section 19(2)(a), as they were devoid of any duly authenticated statement setting out the conduct or omissions of the Respondent that constituted the offence, as required by section 19(3)(c)(ii).

2.    It was not open to the Magistrate to conclude that no further documents were required to be produced by the Respondent (The Applicant Below) pursuant to section 19(2)(b), as the documents produced did not disclosed acts and/or omissions of the Respondent such as to enable a determination under section 19(2)(a), as they were devoid of any duly authenticated statement setting out the conduct or omissions of the Respondent, as required by section 19(3)(c)(ii).

3.    The Magistrate erred in not calling for further documents, pursuant to section 19(2)(b) namely:

a.    Actual documentary proof that the Applicant (The Respondent Below) was a DINA agent;

b.    Actual documentary proof that the Applicant (The Respondent Below) was an operative Agent

c.    Actual documentary proof that the Applicant (The Respondent Below) was in fact on duty at the times of the allaged arrest and continued detention of the persons named.

4.    The Magistrate erred in concluding that in fact the documents relied on and as produced by the Respondent (The Applicant Below) disclosed any conduct or omission that in fact gave rise to the offence allaged in the extradition request.

5.    The Magistrate erred in merely relying on the existence of a warrant in circumstance that the material as a whole did not support the warrant and violated the principles of legality in concluding section 19(2)(a) had been satisfied, in that he accepted the recharacterization of events and actions after 40 years there occurrence, in circumstance that such recharacterization ignored the historical background to the events in Chile as they were between 1973 and 1977.

6.    TApplicant's he Magistrate erred in concluding that the documents contained sufficient information from which the elements could be identified for the purposes of section 19(2)(a) and (c).

7.    The Magistrate erred in concluding that the use of the word arrest was used to mean an unlawful arrest as there was no evidence of such.

8.    The Magistrate erred in concluding that for the purpose of section 19(2)(c) he did not have to be satisfied to any standard or at least to the criminal standard to be able to make a determination under section 19(2)(c).

9.    The Magistrate erred in conflating the conduct of others and in particular the Government Agency DINA as the acts or omissions of the Applicant (The Respondent Below), in making a determination under section 19(2)(c).

10.    The Magistrate erred in his application of the legal principles in concluding that the material contained a sufficient statement of conduct and or omissions of the Applicant to enable him to make any determination under section 19(2)(a) and (c).

11.    The Magistrate erred in concluding that he had power to conclude that a Government Agency of a Foreign State that existed some 40 years ago was a Criminal Group.

12.    The Magistrate erred in his consideration of section 19(2)(c) in not considering the political background that existed and that the Applicant (The Respondent Below) was an allaged subordinate with no authority in a military context and that marshal law existed.

13.    The Magistrate erred in concluding that what the Respondent (the Applicant Below) was contending was able of applying and satisfying the elements of a section 93T offence under the Crimes Act NSW.

14.    The Magistrate erred in concluding that the conduct/omissions of the Applicant (the Respondent Below) brought about the arrest, detention and ongoing detention of the allaged 7 individuals.

15.    The Magistrate erred in concluding that any of the time of the Applicant's (The Respondent's Below) conduct or omissions, she knew or ought reasonably to know that the detention was unlawful, knew that torture was to occur and knew murder was to occur such that she knew or ought know that her Conduct or Omissions would contribute to the occurrence of any criminal activity.

16.    The Magistrate erred in concluding the material satisfied section 11.2(1) of the Criminal Code, as there is no material that goes to the state of mind of the Applicant (The Respondent Below).

17.    The Magistrate erred in concluding that the statement of conduct or omissions satisfied the elements of section 86 of the Crimes Act New South Wales.

18.    It was on all the material not open to the Magistrate to conclude what was in fact the conduct and/or omissions of the Applicant, such as to be make any determination, as to a dual criminality, as required under section 19(2)(c).

19.    It was on all the material not open to the Magistrate to ignore the historical factors and circumstances as they existed at the time of the allaged conduct in determining if in fact section 19(2)(c) was satisfied.

20.    Extradition Objections in fact existed.

21.    It was not open to the Magistrate to ignore the Political Offence Objection, as there was no material that the Applicant in fact did any Act of violence.

22.    It was open on the material to conclude that the section 7(d) and (c) and (d) objections were made out.

23.    The magistrate erred in his conclusion as to, his determination under section 7(e) as the material disclosed a general amnesty and statute of limitation in fact at law existed.

24.    The magistrate breached the principles of legality in concluding that section 7(e) had no application as at law in Chile the amnesty law and the statute of limitation still have application and no Parliamentary clear statement exists in Chile and as such it was no open to conclude that section 7(e) was not made out.

25.    Costs

20    The applicant’s extensive written submissions are not constructed by reference to those grounds, but rather generally address the material under headings relating to the s 19 requirements. There is significant repetition within the applicant’s submissions and overlap between submissions, such that certain submissions appear to be relied on in relation to a number of different s 19 requirements. Counsel for Chile summarised his understanding as to which of the s 19 requirements each of the grounds of review related as follows: grounds 1, 4, 5, 6, 7 and 10 relate to the requirements of s 19(2)(a); grounds 2 and 3 relate to the requirements of s 19(2)(b); grounds 8 through to 19 (noting the repetition of ground 10) relate to the requirements of s 19(2)(c); and grounds 20 through to 24 relate to the requirements of s 19(2)(d) (noting that ground 24 refers to the principle of legality and was advanced as having a more general application). Ground 25 relates to costs, although I note the applicant did not advance any submission in relation to this ground. Counsel for the applicant did not take issue with either the respondent’s characterisation of the complaints being made of the Decision or the way in which they were sheeted back to the grounds of review.

21    I note that before the Magistrate the applicant attempted to rely on a number of affidavits (it appears primarily prepared for the purposes of bail, with a least some contents breaching s 19(5)) which the Magistrate concluded were irrelevant to the s 19 proceedings. No ground of appeal challenges that conclusion.

22    Although not a ground of review, underlying the applicant’s submissions is an assertion that the Magistrate “engaged in a rubber stamping exercise and nothing more…”. There is no substance to that submission. It is not borne out by a proper reading of the Magistrate’s reasons for the order made. Rather, the submission appears to be based on no more than the fact that the Magistrate did not accept the applicant’s submissions. Indeed, the Magistrate’s reasons reflect a detailed consideration of the relevant issues. As will be apparent from the reasons given below, the Magistrate was entitled to accept the submissions made by Chile and reject those made by the applicant. Further, as is apparent from the reasons for the order, the Magistrate made findings and referred to material in the extradition request in addition to that specifically referred to or relied on by Chile. For example, the Magistrate found dual criminality on an additional basis to that advanced by the respondent, which reflects an active consideration of the relevant issues. Similarly, although the Magistrate adopted the factual summary of the material advanced by Chile in its written submission, he did so having satisfied himself that it was an accurate summary, and in circumstances where he added to it additional relevant material from the extradition request.

Preliminary observations

23    Although the applicant’s written submissions purport to address the issues by reference to the s 19 requirements, the written and oral submissions, at times, reflect a misunderstanding of the operation of the statutory scheme relating to international extradition and the principles applicable thereto. In particular, the applicant fails to recognise the limited nature of the proceedings at the s 19 stage, and the task which the Magistrate was undertaking.

24    Aligned with that, although the applicant said she accepted the principles applicable to international extradition, in respect to some principles, the applicant immediately thereafter contended that they did not apply to her case. No proper basis was advanced by the applicant as to why that should be so. Rather, aspects of the applicant’s submission in that regard involved no more than bald assertions, with no apparent basis in the evidence or the relevant legal principles.

25    In that context, the Magistrate’s reasons summarise the relevant legal principles, the accuracy of which, despite alleging 24 substantive grounds of review, is not challenged.

26    The applicant relied on a general submission that there has been a breach of the “principle of legality” in this case, such that the extradition request should be denied. Although the content of this concept as used by the applicant is not entirely clear, she appears ultimately to rely on the assertion that the extradition violates the principle “as it involves a retrospective criminal prosecution”.

27    Given the general nature and breadth of this submission, and that it is repeatedly relied on by the applicant, it is appropriate to address it at the outset.

28    The submission is encapsulated at [82]-[84] of the applicant’s written submission, as follows:

[82] The principles of legality have been violated in that, as between 1978 to at least the 2000s, by reason of the amnesty law as it was and still is, and the statute of limitations, these matters stood as not able to be prosecuted. In effect there was a bar to prosecution, by reason of these two laws that were the law and still are the law. What has occurred as noted above since the 2000’s is, the use of laws and the creation of legal fictions and the re characterisation of events, to make treaties not otherwise applicable, applicable such as to allow a prosecution of what was otherwise not able to be prosecuted some 30 years after the event. This in effect violating the principles concerning retrospective criminal law by making prosecutable events that remained otherwise for 20 plus years bared [sic] from prosecution. What Chile has in effect done by use of laws and treaties that did not exist in 1976/77 or at all in 1978, and further a recharacterization by use of legal fictions of events, by suggesting a state of war existed, such that treaties not otherwise applicable could be applied, to render prosecutable as at 2018 and in fact since 2006 what otherwise was barred from prosecution by existing and valid law as between 1978 to 2006.

[83] This thereby violating the principles of legality. It is submitted that the Second Respondent having notice of such cannot and ought not take the warrant at face value as would ordinarily be the case. This is not your standard extradition request.

[84] Chile in effect through the whole of the material has sought to raise, treaties and intentional conventions, not so much as crimes the subject of the extraction [sic] request, rather as justifying a prosecution, which under its own law absent these treaties and conventions and legal fictions would not otherwise be able to be prosecuted by reason of the amnesty law and the statute of limitation.

29    The applicant bases that submission on Minister for Home Affairs v Zentai [2012] HCA 28; (2012) 246 CLR 213 (Zentai), contending at [85]-[87] of her written submission:

[85] In Commonwealth v Zentai [2012] HCA (15 August 2012) it is submitted that a fundamental principle was enunciated, namely that the requesting state and in fact the requested state should at all time be vigilant, to observe that the principles of legality are not violated.

[86] In Zentai what was sought was an extraction for a war crime of murder, rather than just a murder under domestic law. At the time of the alleged event, the war crime of murder did not exist in the requesting state. As such the dual criminality rule could not be satisfied. The dual criminality was viewed as a link to retroactive criminal law and as such if offending such then principles of legality would be violated.

[87] Zentai further stands for the principle that a requesting state should at all-time be vigilant, to ensure principles of legality ought not be offended as its own sovereign it has a duty to protect the rights of individuals at an international level in exercising its power of extradition and that includes and extends to the Second Respondent in the exercise of his own independent function.

30    As can be seen from the submission recited above, the applicant relies on two bases. First, the submission is based on an Amnesty Law passed in Chile in March 1978 which she contended protects her from prosecution for the alleged conduct which is the subject of the extradition request. Second, the submission is based on a statute of limitations. I will address each in turn.

31    As to the Amnesty Law, the extradition request before the Magistrate (which includes appellate judgments from the Supreme Court of Chile) reflects that the Amnesty Law has been interpreted by the Supreme Court of Chile not to apply to ongoing offences and crimes against humanity (as these aggravated kidnapping offences have been characterised). As the respondent correctly observed, that such an interpretation has been adopted by the Supreme Court of Chile is also supported by the expert report relied on by the applicant before the Magistrate. That is, the Amnesty Law does not have the effect contended for by the applicant.

32    In that context, the applicant’s submission is that the interpretation of the Amnesty Law can only be changed by Parliament; that the Supreme Court of Chile is not entitled to interpret it as it now does; that the Supreme Court in doing so “goes beyond the functions of a judge”; that “it is apparent the constitution of Chile is in fact being violated by its own judges” such that the Supreme Court is acting unconstitutionally, and “therefore, in that respect it violates, effectively, international law”. The applicant submitted that as a consequence “it would effectively enable any decision-maker, either it be [at the] 16, 19 or 22 [stage], to say, ‘Well, I’m not going to be a party to that’”. The applicant submitted it entitled any decision maker to “refrain from acting”. Despite the breadth of the submission, this proceeding only relates to the s 19 stage. To an inquiry during the hearing as to which aspect of s 19 this submission was directed, the applicant submitted that “there is no express prohibition” in that section preventing a magistrate or this Court acting in the manner he contended it ought.

33    Although the applicant described the material she relied on in this respect (the Amnesty Law, the statute of limitations and the expert report) as having been presented to the Magistrate for the purpose of establishing the objections to extradition (and it is in that context in which it is referred to in the Magistrates reasons), she contended that it is also relevant to other issues.

34    The submission, in so far as it is suggested to enliven some general power to decline to act on an extradition request over and above, in addition to or separate from the s 19 requirements, at the s 19 stage of the process, is misconceived.

35    As explained above at [11], in determining eligibility for surrender a magistrate is confined to considering the matters specified in s 19(1) and (2), and whether those requirements are satisfied, and cannot have regard to matters falling outside that ambit: Kainhofer at 537-539.

36    The applicant’s reliance on Zentai to support her submission in this case is misplaced. Zentai concerned the fourth stage of the extradition process, not the s 19 stage to which this review relates. At the s 19 stage in Zentai, a magistrate of the State of Western Australia found Mr Zentai eligible for surrender to the Republic of Hungary (Hungary), with that finding being upheld on review to this Court and subsequent appeal by Full Federal Court: Zentai v Republic of Hungary [2009] FCA 284 and Zentai v Republic of Hungary [2009] FCAFC 139; (2009) 180 FCR 225. At the fourth stage, the relevant Minister had to determine the question of surrender to Hungary pursuant to s 22(2) of the Extradition Act: Zentai at [57]. The case itself concerned a constraint upon the statutory power to surrender arising from the interpretation of an obligation in a bilateral treaty, to the effect that extradition could not occur in relation to an offence which did not exist at law at the time it was allegedly committed: Zentai at [59]-[61], [65], [72]. The Court concluded that the Extradition Treaty with Hungary required the offence in relation to Article 2.5(a), for which extradition was sought, to have existed as an offence in the requesting State at the time at which the acts or omissions alleged to constitute the offence occurred. It was not enough that the alleged acts might constitute an offence of some other kind in the requesting State at that time.

37    As the respondent correctly submitted, contrary to the applicant’s submission, no submission was made in Zentai “that principles of international law qualifying the proscription of retroactive municipal criminal law had any part to play in the construction of the Treaty”: Zentai at [25]. A proper consideration of Zentai reflects that it does not assist in relation to conducting the s 21 review, which is in respect to the s 19 stage of the extradition process. Importantly, there is also no issue in this case that the offence for which the applicant is sought in Chile, aggravated kidnapping, existed at the time of her alleged conduct. The applicant does not suggest otherwise.

38    The principle of legality is a principle of construction, based on the presumption that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language. The principle favours a construction, if one be available, which avoids or minimises a statute’s encroachment upon fundamental principles, rights and freedoms at common law: North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 256 CLR 569 (NAAJA v NT) at [11]. It has application where there are constructional choices reasonably open on the application of ordinary principles of statutory construction: NAAJA v NT at [11]. No constructional choices arise at this stage of the extradition process in the applicant’s case. Therefore, as the respondent contended, there can be no suggestion that the principle of legality has been violated.

39    As to the applicant’s submission based on the statute of limitation, the extradition request also reflects that the Supreme Court of Chile has repeatedly interpreted that statute in such a way that, on its application to the facts in this case, the prosecution is not statute barred. The statute of limitations has no application to crimes against humanity (involving offences where the bodies of the victims have not been recovered), the types of offences for which the applicant was indicted.

40    In any event, any issue regarding the application of the statute of limitations is properly and expressly a matter for the fourth stage of the extradition process: s 22(3)(e) of the Extradition Act.

41    As explained in Bennett v Government of the United Kingdom [2000] FCA 916; (2000) 179 ALR 113 (Bennett) at [25], “the parliament…did not intend it to be part of a magistrate’s function under s 19 of the Act to determine whether a prosecution for the offence in the extradition country would be statute-barred according to the law of that country…”: and see Matson v United States of America [2016] FCA 1548 at [35] (Matson).

42    The applicant’s submission (based on both aspects) in effect, challenges the validity of the charging process in Chile, which is impermissible in proceedings conducted under s 19 of the Extradition Act: Zoeller v Federal Republic of Germany [1989] FCA 802; (1989) 23 FCR 282 (Zoeller) at 300; Bennett at [25]; Rojas v United States of America [2019] FCA 22 at [30]. That an offence is alleged to have been committed in the foreign country is evidenced by the warrant and charging document issued in that country: Zoeller at 299-300.

43    The applicant’s submission that the Supreme Court of Chile is acting unconstitutionally appears to rest on an assertion that the Supreme Court is now interpreting laws differently to earlier courts (where only Parliament can alter the interpretation of a law), and in a manner with which the applicant disagrees. I note that, as a general proposition, courts interpret and apply laws made by the Parliament, and, as the respondent correctly observed, the fact that an interpretation of a law may change over time is uncontroversial. In any event, the applicant did not address how that allegation can enliven some general or overarching consideration or review by a magistrate, or this Court, of the actions of Chilean courts in interpreting the Amnesty Law or the statute of limitations at the s 19 stage of the extradition process.

44    Importantly, international extradition law at its base, involves mutual trust and confidence reposed in international States or among nations. In Cabal (No 3), in the context of an alleged extradition objection under s 7(b) of the Extradition Act (to which I will later return) French J observed at [220]:

The onus is upon the applicants and while it does not require that the extradition objection is proven on the balance of probabilities – Cabal (No 2) at 748-749, that onus is not easily discharged. It is no light matter for the magistrate or this Court to conclude that there are substantial grounds for believing that the requesting country is acting in bad faith, especially given the necessary assumption that the offences have been committed. There is also the existence of the Treaty itself to which regard must be had. Where there is a treaty in force, its existence no doubt reflects a degree of mutual trust and confidence between the contracting parties as to their bona fides and the fairness of treatment that would be meted out by one or the other to a fugitive who has been surrendered – State of Wisconsin v Armstrong (1973) 10 CCC 2d 271 at 277, cited in Hempel v Attorney-General (Cth) (1987) 77 ALR 641 at 659, see also Wiest at 514.

45    Australia has an extradition treaty with Chile which was entered into on 6 October 1993, and came into force on 13 January 1996: Treaty on extradition between Australia and the Republic of Chile [1996] ATS 7; [1996] UNTSer 413 (the Treaty).

46    Subject to establishing an extradition objection, or a decision being made under s 22 of the Extradition Act not to surrender the applicant, provided the s 19 requirements are established, these submissions by the applicant are otherwise matters that can be raised in the domestic criminal law processes in Chile. They are matters for the Chilean courts. As explained below at [165] in relation to the objections to extradition in s 7(e), consideration of the submissions proceeds on the basis that Australia takes the law of the extraditing country at it finds it: Harris at 409E-410F.

47    I will return to the issue of the Amnesty Law and statute of limitations when addressing the applicant’s submissions on the grounds of review. It will be readily apparent from the summary of the applicant’s submissions below, that she relies on this argument, or a species thereof, in relation to each of the s 19 requirements.

The s 19 requirements

Supporting documents: s 19(2)(a)

48    As observed above, the grounds of review relating to this requirement are 1, 4, 5, 6, 7 and 10.

49    The supporting documents required by s 19(2)(a) are relevantly identified in s 19(3)(a) and (c) of the Extradition Act. These are a duly authenticated warrant issued by the extradition country for the arrest of Ms Rivas for the offence, or a duly authenticated copy of such a warrant: s 19(3)(a); a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence: s 19(3)(c)(i); and a duly authenticated statement in writing setting out the conduct constituting the offence: s 19(3)(c)(ii).

The warrant: s 19(3)(a)

50    The Magistrate was satisfied that two warrants, duly authenticated, were issued by Chile for the arrest of Ms Rivas for the extradition offences. A copy of each warrant is in the extradition request, which included English translations of two Chilean arrest warrants for the applicant.

51    The applicant’s challenge to this conclusion appears twofold.

52    First, the applicant challenges the conclusion on the basis that they are not warrants for the offence of aggravated kidnapping, but rather the warrants are for an active extradition application, one dated 26 April 2016 and another dated 4 January 2018. It was submitted that the reason for this is that in Chile a person cannot be accused in his or her absence and the actual charges against the applicant have been dismissed pending her return to Chile, as they cannot be maintained in her absence.

53    The applicant’s submission is inconsistent with what appears on the face of the warrant. On 26 April 2016, Justice Miguel Vasquez Plaza, Ad-Hoc Investigating Justice of the Court of Appeals of Santiago, issued a warrant for the arrest of Ms Rivas in case roll No. 2,182-98 named Episodio Reinalda Pereira, for the offence of aggravated kidnapping against Reinalda del Carmen Pereira Plaza. On 4 January 2018, Justice Mario Carroza Espinosa, Deputy Ad-Hoc Investigating Justice of the Court of Appeals of Santiago, issued a warrant for Ms Rivas in case roll No.2 182-98, named Conferencia 1 and case roll No. 2,182-98 named Conferencia 2, for the offence of aggravated kidnapping against Víctor Manuel Díaz López, Fernando Alfredo Navarro Allendes, Lincoyán Yalú Berríos Cataldo, Horacio Cepeda Marinkovic, Juan Fernando Ortíz Letelier and Héctor Veliz Remirez. It is apparent that they are orders issued by Investigating Justices of the Court of Appeals of Santiago empowering public officers to take the respondent into custody for the alleged offences of aggravated kidnapping against the seven named victims.

54    In so far as the applicant contended that she is not ‘accused’ of the relevant offences, that is a matter relevant to the decision made by the Attorney-General under s 16 of the Extradition Act, and not a matter in respect of which the Magistrate is required or permitted to determine pursuant to s 19(2). In any event, it is apparent from the extradition request that the prosecution is stayed temporarily because Ms Rivas is unable to be tried in absentia, and is stayed only until she appears before the court.

55    Second, although the applicant accepted that if she was wrong as to the first submission then s 19(3)(a) has been satisfied, she contended that “[t]he real challenge on review is that the warrants when taking into account with the History … suggest that the principles of legality have been violated. As the warrants cannot be taken as valid given such a breach, a breach that could not and should not be ignored by the Requested State and any official so charged to make an inquiry”. That proposition led to the applicant’s submission regarding the principle of legality referred to above at [26]-[29]. For the reasons explained above and given this requirement is only that there is a duly authenticated warrant (or copy thereof) issued by the extradition country for the arrest of Ms Rivas for the offence, the applicant’s submission as to legality does not address that requirement.

56    The Magistrate was correctly satisfied that two warrants, duly authenticated, were issued by Chile for the arrest of Ms Rivas for the extradition offences.

Description of offence and penalty: s 19(3)(c)(i)

57    A description of the offence and penalty appears in the extradition request, contained in the English Bundle, together with a copy of the offence provision. They are in the following terms:

OFFENCES FOR WHICH THE EXTRADITION OF ADRIANA ELCIRA RIVAS GONZÁLEZ IS SOUGHT

7.    The extradition of Adriana Elcira Rivas González to the Republic of Chile is sought for the following offences:

7.1.    Aggravated kidnapping of the victim named Víctor Manuel Díaz López, in her capacity as co-perpetrator, related with an indictment issued in case roll No. 2,182.98, Conferencia 1. Folios Nos. 30-37.

7.2.    Aggravated kidnapping of the victims named Fernando Alfredo Navarro Allendes, Lincoyán Yalú Berríos Cataldo, Horacio Cepeda Marinkovic, Juan Fernando Ortíz Letelier, Héctor Veliz Ramirez and Reinalda del Carmen Pereira Plaza, in her capacity as co-perpetrator, related with an indictment issued in case roll No. 2,182.98, Conferencia 2 and Conferencia 2 Episodio Reinalda Pereira. Folios Nos. 38-53.

PENALTY FOR THE CRIMINAL OFFENCES FOR WHICH EXTRADITION IS REQUESTED

8.    The relevant penalty, as co-perpetrator for the offence of aggravated kidnapping perpetrated against the victim named Víctor Manuel Díaz López Lopez, in case Conferencia 1, and for the victim named Reinalda del Carmen Pereira Plaza, in case Conferencia 2 Episodio Reinalda Pereira, should a final conviction be decided, corresponds, in each case to a penalty of rigorous imprisonment in any degree, which translates into a penalty that may be issued by the judge, at his/her sole discretion, ranging between 5 years and 1 day and 20 years.

The relevant penalty, as co-perpetrator for the offence of aggravated kidnapping perpetrated against the victims named, Fernando Alfredo Navarro Allendes, Lincoyán Yalú Berríos Cataldo, Horacio Cepeda Marinkovic, Juan Fernando Ortíz Letelier and Héctor Veliz Ramirez, in case Conferencia 2, should a final conviction be decided for all the victims, corresponds to a penalty for 5 aggravated kidnappings, which could be applied, because all offences are of the same nature, because they are reiterated, and because they are more favourable to the convict, pursuant to article 509 of the Criminal Procedure Code, with the purpose of enforcing a single penalty to be decided discretionally, between 10 years and 1 day and simple life imprisonment.

58    The applicant’s complaint in respect to this requirement appears to be, in summary, that although the documents may be authenticated, they are “in fact deficient and have no application to the facts as presented”. It was submitted that “[y]ou need not be an expert in Chilian [sic] Law you just need to know some law, to come to the following conclusions”: “there was no kidnapping”; “there was an arrest”; “there was an ongoing detention following arrest, no ongoing kidnapping”; “the conduct of arrest and ongoing detention was carried out by the State, the executive, not an individual” and “in so far as an individual carried out the arrest and detention, they were acting as agents of the State, the Executive, and as such not in their personal capacity, not as private individuals, in circumstance that such arrest [sic] were ordered, and as such a right of arrest and ongoing detention existed and was lawful”. The applicant submitted “[t]here was no basis to make any other determination”.

59    The applicant’s submission misunderstands the nature of this requirement; it relates to extradition requests being required to state a description of the extradition offences and the penalty in respect of those offences. It does not require that the offence for which extradition is sought is “made out in the material”. As previously observed, no part of the extradition process involves determination of guilt or innocence: Vasiljkovic at [33]-[34]. Although the applicant accepted that proposition during the hearing, the submissions she makes are contrary to it. As referred to above at [42], that an offence is alleged to have been committed in the requesting State is evidenced by the duly authenticated warrant and charging document issued in that country: Zoeller at 299-300; Matson at [33]. It is not part of s 19 to consider the appropriateness or otherwise of the Chilean authorities’ decision to charge the applicant with a particular offence or offences: Matson at [35].

60    The Magistrate was satisfied that there was a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence: s 19(3)(c)(i). That is plainly correct.

Statement of conduct constituting the offence: s 19(3)(c)(ii)

61    The Magistrate concluded that the documents contain a statement of conduct constituting the offences alleged against the respondent, satisfied the requirements of s 19(3)(c)(ii) Extradition Act: at [56].

62    In Matson v United States of America [2018] FCAFC 57; (2018) 260 FCR 187 the Full Court at [54] described the requirements of the statement of conduct in s 19(3)(c)(ii) as follows:

The relevant principles in relation to the requirement in s 19(3)(c)(ii) of the Extradition Act are well-settled. The statement of the conduct that is required for the purposes of s 19(3)(c)(ii) must “lie at a level of abstraction between a formal statement of the elements of the offence, on the one hand, and an account of the evidence relied on to prove the relevant conduct, on the other”: Truong v The Queen [2004] HCA 10; (2004) 223 CLR 122; (2004) 78 ALJR 473 at [29]. A bare statement of the offence will not suffice: De Bruyn v Republic of South Africa [1999] FCA 1344; (1999) 96 FCR 290 at [8]; McDade v United Kingdom [1999] FCA 1868 at [16]. The statement must speak with “sufficient specificity, clarity and coherence to serve its purpose”: Griffiths v United States of America [2005] FCAFC 34; (2005) 143 FCR 182 at [52]. The requirement will not be met if the statement is “so vague and general or so disorganised that the relevant acts and omissions cannot be reasonably identified”: McDade at [17]. Whether a statement satisfies the requirement is essentially “a matter for practical judgment and assessment, not for over zealousness in discerning deficiencies”: Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 294.

63    It is well accepted that the statement setting out the conduct constituting the offence for the purposes of s 19(3)(c)(ii) may consist of a number of documents, and therefore it is permissible to refer to all the of the supporting documents to ascertain what that conduct is: Dutton v O’Shane [2003] FCAFC195; (2003) 132 FCR 352 at [105]; Griffiths v Untied States of America [2005] FCAFC 34; (2005) 143 FCR 182 (Griffiths) at [12], [49]-[50].

64    The respondent set out those relevant principles, which were applied by the Magistrate, the accuracy of which the applicant has not challenged.

65    As recognised in Liem at [98], the statement of conduct performs a central role in the s 19 task, being the point of the extradition process under the Extradition Act where a determination of the existence, or non-existence, of the dual criminality requirement is made. The dual criminality requirement is, in turn, the foundation for ascertaining the scope and content of the specialty assurances generally required before a person is surrendered: see s 22(3)(d).

66    This requirement is considered in a context where there is a recognition in international extradition law that countries have different domestic criminal law systems. It is for that reason that it is not necessary that the documents in question comply with the procedural and content requirements of the criminal laws of the States or the Commonwealth of Australia: Cabal (No 3) at [145]; Cabal v United Mexican States [2001] FCA 427; (2001) 108 FCR 311 at [108]. As observed by Weinberg J in Timar at [63].

It must also be recognised, however, that documents emanating from countries with which Australia has extradition arrangements will often be drafted in language and style which is very different from our own, and perhaps less than perfect from our perspective. Whether or not those documents can be said to meet the requirements of the Act is, as Gummow J observed in Wiest, [Wiest v Director of Public Prosecutions [1988] FCA 450; (1988) 23 FCR 472], a matter for practical judgment. Such documents must, in my opinion, be read fairly, and not perversely.

And see: Liem at [127].

67    The applicant’s submissions on this requirement are encapsulated in [161] as follows:

There is no statement as to the acts of or the omissions of the Applicant in respect of each of the seven allegations. There is no detail or particulars as to what acts she committed or what she failed to do that make out the offences. That is in fact conceded and the excuses ought to be rejected, as that is just not a valid consideration.

68    Although this submission appears under the heading “additional documents” it reflects, at least in part, the lengthy written submission made on this ground. The applicant also repeated her submissions about the principle of legality, the Amnesty Law, the statute of limitations, and that there was no kidnapping but an arrest by a government agency carried out according to law.

69    The applicant also submitted at [133] that:

When one looks at these essentially, they are no different to what a Magistrate has to do every day when determining if in fact a matter has to be committed for trail [sic] or not. This was rejected. It is submitted it was rejected incorrectly…

70    The Magistrate concluded inter alia, at [54] that:

I note that the Respondent makes a number of submissions about the lack of detail in the Extradition Request documents (English bundle) as to what the [applicant] did or did not do. These are not committal proceedings. The documents relied upon do not purport to be the full brief or set out all available evidence. They contain sufficient information by way of an overall account of the evidence from which the relevant elements can be identified.

71    As the Magistrate properly recognised, contrary to the applicant’s contention, these proceedings are not committal proceeding. This is clearly explained in Zoeller where the Court discussed at 299 the changes implemented when the Extradition Act was enacted:

Following the enactment of the 1988 Act, but subject to the terms of particular extradition treaties, it was no longer necessary for there to be a proceeding along the lines of a committal to determine on facts then adduced whether there was a prima facie case. Subject to the provisions of s.11, therefore, the clear legislative scheme appearing from s.19 is that the magistrate is charged with the task of determining whether in his opinion the double criminality requirement of s.19(2)(c) is satisfied, and to put it briefly and perhaps loosely, that there is no extradition objection as defined in s.7 (see s.19(2)(d)). In so doing the person to whom the proceedings relate is not entitled to adduce, and the magistrate may not receive, evidence in support of a submission that the person did not do that which is alleged of him (s.19(7)). Thus the magistrate is confined to the material adduced on behalf of the country requesting extradition. Practically that means that in determining whether the alleged conduct of the person constituted an offence in Australia regard will be had only to the duly authenticated statement in writing setting out the alleged conduct constituting the offence. Matters tending to go to innocence of the alleged offender are irrelevant.

72    Bearing in mind the principles referred to above, the issue was whether the Magistrate was satisfied there was a duly authenticated statement in writing setting out the conduct constituting the offence. He was so satisfied. He was correct to so find.

73    The respondent contended that a duly authenticated statement of the conduct constituting the extradition offences is produced in the following sections of the English Bundle of the extradition request: a report dated 14 August 2015 prepared by the Human Rights Programme of the Ministry of Interior and Public Safety (Interior Ministry Minute); Chilean Investigations Police Record No. 242 (Chilean Police Report); statement given by Jorgelino Del Carmen Vergara Bravo (First Bravo Statement); statement given by Jorgelino Del Carmen Vergara Bravo (Second Bravo Statement); statement given by Juan Herńan Morales Salgado (Salgado Statement); and the “Summary of the conduct alleged against Adriana Elcira Rivas Gonzalez” and “Detailed statement of the alleged conduct constituting the offence”. This was accepted by the Magistrate.

74    The Magistrate at [50] recited the summary of the extradition material which appeared in Chile’s first outline of submission on the basis that he found it accurately reflected the more salient points in the material. In my view it is an accurate summary of the primary aspects of that material, Chile’s summary being taken directly from the extradition request (with footnote references to the source material in the extradition request), and I also adopt it.

75    I take that approach acknowledging that the applicant’s counsel, in answer to questions during the hearing, did not accept the accuracy of the summary, submitting that “the description given…in the extradition material cannot be accurate because there’s too many unknowns. One cannot determine whether it’s accurate or not”. This submission was based on what the applicant said were deficiencies in the extradition material. I note no ground of review challenges the accuracy of the summary. I do not accept the applicant’s submission.

76    Before reciting the summary the Magistrate set out at [50] it is appropriate to recall that the applicant is indicted as a co-perpetrator of the offences.

Summary of conduct

[62] The central allegation against the [applicant] is that she was a member, “agent” or “operative” of a specialised group, called the “Brigada Lautaro” (Lautaro Brigade), which was part of the operative branch of the Dirección Nacional de Inteligencia (DINA). The Chilean Police describes her as an officer in the Chilean Navy, who was one of the “security personnel” of Lautaro Brigade. It appears that she was also known as “La Chani”.

DINA’s function and activities

[63] The Interior Ministry Minute describes the formation of DINA as follows:

The constitutional government of President Mr. Salvador Allende was overthrown on 11 September 1973 by the Armed Forces, resulted in a long-lasting condition of political, juridical and social abnormality. Within this context, and under the pretext of an internal war, a systematic, massive and institutionalised policy of violations against the most fundamental rights of human beings was established.

Amongst the meanest instruments used by that systematic policy is [sic] the creation of specialised repression groups that implemented underground detention centers which later became places where the most hideous acts of horror, torture and genocide took place.

Thus, on 14 June 1974, through Decree Law No. 521, the Dirección Nacional de Inteligencia (hereinafter DINA), was created as a military organisation, of a technical-professional character, whose purpose and mission was to produce intelligence for surveying the national security and the country’s development.

In practice, they acted secretly and above the law, so their internal operation, distribution of resources, duties and organisation were unknown matters until the moment when the start of judicial enquiries, carried out within the framework of criminal proceedings brought for the offences committed by its officers, unveiled their mission and structure. [footnotes omitted]

[64] The ‘Brigada Lautaro’ (or Lautaro Brigade) was created on 1 April 1974. Its initial mission was to provide personal security to the DINA National Director, Juan Manuel Guillermo Contreras Sepúlveda and his family. The Division had its headquarters in premises known as ‘Torre No. 5’ in the center of Santiago. It was commanded by Juan Herńan Morales Salgado.

[65] The [applicant] is alleged to have joined the Lautaro Brigade of DINA in 1974, “after taking a course on intelligence” in the locality of Rocas de Santo Domingo.

[66] In mid-1975, Lautaro Brigade moved its headquarters to premises at 8800 Simón Bolivar, which were commonly known as the “Simón Bolívar Headquarters”. The Respondent is alleged to have moved with Lautaro Brigade from the Torre No 5 premises to the Simón Bolívar Headquarters.

[67] It appears that the Simón Bolívar Headquarters was not particularly large. The Chilean Police Report indicates that the Lautaro Brigade comprised about 25 people when it first moved to that base, and that the headquarters comprised a one story house with three bedrooms, a gymnasium and two dressing rooms (which were used for questioning, and as cells, respectively) a cafeteria and a small farm and greenhouse. A strong inference can be made, given the size of the headquarters, that any persons based there must have been aware of the activities that took place at the headquarters.

[68] The Interior Ministry Minute describes the conduct of DINA personnel at the Simón Bolívar Headquarters as follows:

… the leaders of these three groups [meaning Lautaro and two other Brigades which became one “single Brigade”] carried out together the repressive acts against the Communist Party. They detained the member[s] of that Party in operations planned in advance and took them to the Simón Bolivar’s Headquarters, where they were interrogated under physical and psychological coercion with the purpose of getting information about the structure and other members of the party, to kill them and make their bodies disappear.

This Brigade was known for the brutality of the crimes perpetrated by its agents. It was composed of men and women, with the depositions of this Brigade’s members having established that all of them, without exception, performed operational duties. [footnotes omitted]

[69] The Chilean Police Report states:

… personnel of the Lautaro Brigade, joined the group to perform operational duties related with forced entries , detentions, interrogations and application of torture. They are:

Lautaro Brigade Operational Group

… (names listed, incl.)

-Adriana Elcira Rivas Gonzalez

…

In addition to the foregoing, it was established that the political detainees were located in the Headquarters’ gym and cafeteria. They were interrogated and tortured in the dressing rooms located by the gym; they were then killed using the following modus operandi:

Application of torture during the interrogations carried out in the gym’s dressing room area; there were metal bunk beds used for the application of electrical current.

Once the interrogations were over, and after having taken the decision to kill the detainees, they were given injections [with] unknown substances. …

Later, the victims were suffocated by asphyxiating them with plastic bags.

[70] The Interior Ministry Minute states:

It is important to emphasise the cruelty of the crimes committed therein. Prisoners were left in dungeons under very poor health conditions; they were interrogated under torture by applying electric current in different parts of the body. The premises were even used to develop advanced killing techniques, such as the preparation of Sarin gas. They had a team of medical doctors checking the health condition of prisoners to decide if they could still stand torture. Dead bodies were burnt their fingerprints and face with a welding torch; this was done inside the empty swimming pool. Then, the bodies were put inside sacks, tied-up with cables to a piece of railway beam and then thrown into the ocean by Air Force helicopters.

[71] The [applicant] is named in the Chilean Police Report as one of the “Lautaro Brigade Operational Group” who participated in the forced entries, detentions, interrogations and application of torture.

[72] It is alleged that the [applicant] was an active agent in the Lautaro Brigade and was “commonly and concurrently” involved in the aggravated kidnapping and disappearance of persons who entered the Simón Bolívar Headquarters. The Interior Ministry Minute describes the [applicant] as being “an active part of the organised and hierarchical apparatus called DINA, whose missions was repression, becoming involved in an operative group carrying out detentions, acts of torture, homicides and disappearances”.

[73] The [applicant] denies being a member of Lautaro Brigade, stating that “she performed secretarial and administrative duties”. Nevertheless, the “depositions of all former agents who worked with [the appellant] are key to identify her as carrying out operational duties and involved in active missions inside and outside the headquarters”.

[74] In this respect, the Interior Ministry Minute states:

By way of example, Jorgelino del Carmen Vergara Bravo refers to [the applicant] in the following terms: “(…) Adriana was an agent at the headquarters and carried out operational actions …[”] Later, in the same deposition, he adds: “I would also like to set on record that women in the headquarters were disguised as secretaries, but they were all operational agents.” [footnotes omitted]

The Conferencia / Episodes

[75] In relation to the Conferencia 1 Episode, the Extradition Request states:

(A)    At around 1:00am, on May 12, 1976, agents from [DINA] search the house located in Bello Horizonte Street, District of Las Condes, Santiago, where they arrested Víctor Manuel Díaz López, who at the time was Undersecretary General of the Communist Party and took him to the Villa Grimaldi Headquarters … There he was kept in captivity by [DINA] agents and subject to constant interrogations.

(B)    He was later transferred to the [Simón Bolivar Headquarters] … where he stayed during the last months he was alive. Being permanently watched and interrogated by [DINA] agents operating in such headquarters, he was in constant confinement and under a regime of deprivation of freedom …

[76] Salgado describes how Díaz was brought from Villa Grimaldi to the Simón Bolívar Headquarters as follows (emphasis added):

[Díaz] was interrogated without covering his eyes, by Barriga and Lawrence, who did not exercise any coercion.…I remember that, during this first interrogation…also present were … Adriana Rivas. He was interrogated about the structure of the Communist Party … Diaz was then taken to the gym where he remained in detention.

…

Most officers belonging to my Brigade witnessed the events around [Díaz’] death, apart from those who participated directly in the acts. Because of the time, I think that almost all of them were present.

[77] The Extradition Request describes the events relating to the Conferencia 2 Episode and Reinalda Pereira Episode, as follows:

(A)    Around 2:00 pm on 13 December 1976, in the junction of Grecia and Ramón Cruz streets, District of Ñuñoa, Fernando Alfredo Navarro Allendes, 49 years old, former leader of the Workers’ Central Union (Central Única de Trabajadores) and member of the Communist Party’s Central Committee, was arrested by agents of [DINA] who forcibly pushed him into one of the vehicle[s - sic] they were using and took him to [the Simón Bolívar Headquarters. There, he was interrogated under coercion and was later made disappear.

(B)    After 8:00 am on 15 December 1976, in the area near the Lo Plaza Roundabout, in the District of Ñuñoa, Lincoyãn Yalú Berríos Cataldo, 48 years old, primary education teacher who was a member of the Communist Party and former president of the National Municipal Workers’ Union, was arrested by [DINA] agents, who took him to [the Simón Bolívar Headquarters. There, he was interrogated under coercion and was later made disappear.

(C)    At around 8:00 am on 15 December 15 1976, on a street of the city of Santiago, Horacio Cepeda Marinkovic, 54 years old, a member of the Communist party and former Director of the State’s Collective Transport Company (Empresa de Transportes Colectivos del Estado), was arrested by [DINA] agents, who took him to [the Simón Bolívar Headquarters. There, he was interrogated under coercion and was later made disappear.

(D)    At around 4:00 pm on 15 December 1976, on a street, Juan Fernando Ortiz Letelier, 54 years old, a member of the Communist Party Central Committee, was arrested by [DINA] agents, who took him to [the Simón Bolívar Headquarters]. There, he was interrogated under coercion and was later made disappear.

(E)    At around 9:00 am on 15 December 1976, on a street, Héctor Véliz Ramírez, 43 years old, coordinator and liaison person between the regional and central bureaus of the Communist Party, was arrested by [DINA] agents, who took him to [the Simón Bolívar Headquarters]. There, he was interrogated under coercion and was later made disappear.

(F)    After 4:00 pm, on 15 December 1976, in the junction between Exequiel Fernández corner of Rodrigo de Araya Streets, District of Ñuñoa, Reinalda del Carmen Pereira Plaza, 29 years old, medical technician and member of the Communist Party, who at the time was pregnant, was arrested by [DINA] agents travelling in two cars, forcibly introduced into one of the cars and taken to [the Simón Bolívar Headquarters]. There, she was interrogated under coercion and was later made disappear.

[78] The [applicant’s] involvement in the alleged events, and events more generally concerning DINA and the Simón Bolívar Headquarters, described above, is summarised in the Interior Ministry Minute follows:

In conclusion, [the applicant], was a member of the organised repressive apparatus called DINA. She always performed operational duties and joined the Lautaro Brigade since its creation, which Brigade was responsible for the detention and disappearance of the leaders of the Chilean Communist Party during 1976. She was involved in the detention and interrogation of people and served as a guard at the Simón Bolívar Headquarters, the place were [sic] the victims went missing. She has been indicted for these acts.

(footnotes omitted)

77    I add, as the Magistrate did at [51], the following description in the extradition request of the Simón Bolívar Headquarters (references omitted):

It was a piece of land of less than 5,000 square metres with only one entrance. ……The place had open spaces where DINA officers walked freely, so everyone knew the complete premises, as well as the existence of people that were unlawfully imprisoned there. In addition, both men and woman had to take shifts to watch the detainees [cited from deposition of Sergio Andrade], so they could see the entrance and exit of vehicles transporting the detainees.

78    I also add, as the Magistrate did at [52], that the extradition request records that the former Dirección Nacional de Inteligencia (DINA) agent Bravo provided a list of names of DINA agents who were part of the Lautaro Brigade led by Mr Salgado, which included the applicant. Mr Bravo described when performing guard duty “I would always see detainees coming in, who were transferred mostly by” eight agents whom he named, including the applicant. The deposition by Bravo was in the context of the detention and death of Mr Lopez.

79    As noted above, the applicant’s alleged role was as a co-perpetrator. The extradition request explains that term and its basis for criminal responsibility. The extradition request further explained, by reference to the offences on which extradition is sought, the difference between perpetrators and co-perpetrators in respect to Conferencia 2 [indictment 2] stated, inter alia:

…some of them were involved as perpetrators-by-means ie. they gave the orders and led the operation, while other acted as material co-perpetrators because they participated in the arrests and ensure the victim’s deprivation of liberty during the time they were confined in the Simon Bolivar headquarters – where they secretly carried out, in their capacity as DINA intelligence agents, a series of duties aimed at individualising, locating, chasing, arresting, interrogating and deprivation of liberty of people whom they considered to be the extremists or subversives attempting against national security.

80    The above is not an exhaustive summary of the statement of conduct in the extradition request.

81    The respondent submitted that it is apparent from the extradition request that the applicant’s criminal responsibility as a perpetrator of the offences is said to arise as a result of her, at the relevant times: being a DINA agent at the Simón Bolívar Headquarters; being aware of the function of the Simón Bolívar Headquarters and the work performed by DINA agents at the headquarters; and actively participated in that work. That is a correct characterisation of the allegations.

82    Having considered all the material in the extradition request, the Magistrate correctly concluded that the statement of conduct is sufficient to satisfy s 19(2)(a).

83    The applicant’s submission pays little, if any regard to the requirement in s 19(3)(c)(ii), as explained above at [62] ff. The applicant’s submission, in so far as it repeats the submissions as to the Amnesty Law and statute of limitations, ignores the nature of this requirement, and cannot be accepted. Moreover, the applicant’s submissions as to the facts (which primarily relies to the statement of Mr Salgado) do not accurately reflect a fair reading of the whole of the material contained in the extradition request. For example, the applicant’s repeated submission that “at best” on the material, she was standing guard, is incorrect. As is apparent from the statement of conduct referred to above, the material reflects inter alia, that the applicant was an active DINA operative (with the duties that entails), and with specific reference made to her being observed bringing detainees into the headquarters and being present at a particular interrogation. Rather, the applicant’s submissions, which includes inter alia, in respect to material which implicates her a submission that “the account is unbelievable” and relies on her denials of the offences, reflects a misunderstanding of this stage of the extradition process.

84    As to the remaining submissions, it is important to recall that the issue is not whether there could have been more detail in the extradition request as to the statement of conduct. Nor is the issue whether the material in the extradition request is sufficient to satisfy what is required for a committal for trial in Australia. Rather, it is whether, the extradition request satisfies the requirement in s 19(3)(c)(ii), as that provision has been interpreted. The statement of conduct must speak with “sufficient specificity, clarity and coherence to serve its purpose”: Matson (Full Court) at [54] citing Griffiths at [52]. This requirement is to be considered in the context where the allegation is that the applicant was a co-perpetrator, such that it is unnecessary for criminal liability, as explained in the extradition request, for her to directly undertake each aspect of the conduct a particular act, to be liable for it. Rather, the applicant is liable for the acts of others. The same, of course, can be said of accessorial criminal liability in Australia. The applicant’s submission fails to recognise that fact. That basis of liability necessarily undercuts much of the applicant’s submission about the lack of details or particularity as to her direct conduct in the offences.

85    I do not accept the applicant’s submission that there was insufficient specificity in the statement of conduct so as to prevent the Magistrate from performing the s 19 task.

86    There is no error established in the Magistrate’s conclusion in respect to the requirement in s 19(2)(a). I agree that the requirements in s 19(2)(a) are satisfied.

Additional documents: s 19(2)(b)

87    As set out above, the grounds of review relating to this requirement are 2 and 3.

88    The applicant complains that the following documents have not been provided: an identity card as proof that the respondent was a DINA agent or an active and operative DINA agent at the relevant time; a copy of daily rosters as to arresting agents for each of the alleged victims; a copy of daily rosters as to ongoing detention and location for each of the alleged seven victims; a copy of the statements of the applicant obtained between 2006 and 2011 while she was in Chile and referenced in the material, that would set out the denials and also disclose an alibi; hospital records and medical records in support of the alibi; and also wage records, identity photos, and security records. The error alleged by the applicant is that the Magistrate concluded that no further documents were required to be produced by Chile, and that he erred in not calling for the documents referred to above.

89    The applicant’s submission misconstrues the operation of the additional documents requirement in s 19(2)(b) and the effect of Article IX of the Treaty. Section 19(2)(b) is limited to documents that a treaty requires to be produced to a magistrate: Timar v Republic of Hungary [2000] FCA 755 at [78], [79], [82]; Cabal (No 3) at [155]. Article IX of the Treaty provides that an extradition request from Chile must be accompanied by certain documents and information, relevantly here, those which are encompassed by s 19(2)(a). The Treaty does not require any additional documents to be provided to the Magistrate. It does not require that the documents identified by the applicant be produced.

90    Again, the applicant’s submission fails to recognise the nature of the Magistrate’s role at the s 19 stage, as reflected in the Extradition Act. The Magistrate properly observed at [54], “[t]he documents in the extradition request do not purport to be a full brief of evidence or set out all available evidence”. Rather, they are directed to establishing the requirements for extradition. Conducting the s 19 stage of the extradition process is not a trial, or a committal for trial. Guilt or innocence is no part of the international extradition process: Vasiljkovic at [33]-[34]. It is not a situation that the applicant can call for the production of documents, which are not required under the Extradition Act or the Treaty, which can only go to the ability of Chile to establish the guilt of the applicant.

91    The applicant has not established any error in respect to this requirement. There was no proper basis to call for the documents sought.

Dual criminality: s 19(2)(c)

92    As set out above, the grounds of review for this requirement are 8 through to 19.

93    Section 19(2)(c) requires a magistrate to be satisfied that if the alleged conduct or equivalent conduct had taken place in New South Wales at the time the extradition request was received (6 August 2018) that conduct would have constituted an “extradition offence in relation to New South Wales”. An “extradition offence” is an offence against a law of Australia, or a law in force in the relevant part of Australia, for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months: s 5 of the Extradition Act.

94    In Zoeller at 300 the Court described the relevant task under this aspect of s 19 as follows:

… 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.

95    It follows that what is required is duality of criminality in substance; a comparison between the conduct itself and the offence under the law in force in Australia. There does not need be a complete correspondence between the alleged offence and the elements of an offence under Australian law: Zoeller at 292-300; Harris at 411. A magistrate is not limited to considering only those facts that are “absolutely necessary ingredients” of the foreign crime, but rather can consider all facts set out in the materials provided: Zoeller at 299-300.

96    In performing the task required under s 19(2)(c), s 10(3) of the Extradition Act makes it clear that: (1) where the conduct or equivalent conduct consists of two or more acts or omissions – regard may be had to all or to only one or some of those acts or omissions; and (2) any difference between the denomination or categorisation of offences under the law of the country and the law of Australia, or the law in force in the part of Australia, as the case requires, shall be disregarded.

97    The task is to measure the acts and omissions in the statement of conduct against the relevant Australian criminal offences which qualify as extradition offences and to see whether what is in the conduct statement, if it had occurred in Australia, would have constituted an offence against the law of Australia which qualifies as sufficiently serious to be an extradition offence: Liem at [121]-[122].

98    As explained in Liem at [129]:

…this Court on a s 21 review, and in its appellate function, may well “delve into the detail” of a conduct statement. It is incumbent upon the s 19 magistrate to do the same. The s 19 magistrate must understand enough about the acts and omissions alleged against an individual, for each extradition offence, to be able to compare those alleged acts and omissions with the Australian offence or offences relied upon by the requesting state to satisfy the dual criminality requirement. The s 19 magistrate (and this court on a s 21 review) must undertake that task for the conduct constituting each extradition offence, upon which the requesting state relies.

And see Cabal (No 3) at [212].

99    The function is not to ascertain whether the alleged acts or omissions constitute a crime in the requesting State; that will be a matter for the Chilean courts: Liem at [138].

100    The bulk of the applicant’s submission on this requirement is directed to the assertion that the applicant is not guilty of the offences the subject of the extradition request. She emphasised that she denies the conduct. In effect that argument appears to be that as the applicant did not commit an offence in Chile, the Court could not be satisfied that an equivalent offence exists in Australia. In addition she submitted, inter alia, that the documents in the extradition request should be rejected outright. The applicant raised an “objection” to the documents in the extradition request without there being production of additional documents, and contended that the functions under s 19 cannot be carried out without them. That does not provide a proper basis to object to the documents in the extradition request. I note also that the documents in the extradition request were provided as two bound and sealed bundles (being the Spanish and English Bundle), with each Bundle as a whole being duly authenticated and as such are admissible in these proceedings: s 19(6) and (7).

101    As previously explained, whether the conduct alleged establishes the Chilean offences will, if Ms Rivas is surrendered, ultimately be a matter for the Chilean courts. It is not part of the function of a magistrate at the s 19 stage or this Court on a s 21 review to embark on that task: Liem at [139]-[142]; Cabal (No 3) at [207]-[214]. It follows that the applicant’s submission directed to that, are irrelevant to this issue of dual criminality: Zoeller at 299-300. The applicant’s submission in relation to requiring additional documents be produced, for the reasons given above in relation to the s 19(2)(b) requirement, cannot be accepted. Again, much of the applicant’s submission is based on a misunderstanding of the requirements of s 19 and the role a magistrate performs at this stage. As previously explained, it is not a committal for trial: Zoeller at 299-300, and as the Magistrate correctly recognised, a full brief of evidence is not required. The extradition request is directed to satisfying the requirements of the Extradition Act.

102    The conduct alleged in the extradition request is summarised above at [76].

103    I do not accept the applicant’s submission that the extradition request was deficient in information such as to make it impossible for the Magistrate to consider the issue of dual criminality. As explained above, much of the submission is not based on a fair reading of the whole of the material contained in the extradition request, but rather focusses on isolated aspects of the request absent their context, the remainder of the extradition request and a consideration of the notion of a co-perpetrator.

104    Moreover, regard can be had to the totality of the conduct as described in the extradition request, including the actions of DINA agents at the Simón Bolívar Headquarters: Zoeller at 299-300. The applicant’s submission that Zoeller only permits a magistrate to look at other conduct if it concerns her acts and omissions, cannot be accepted. Zoeller is not so confined. More particularly, the submission ignores that the allegation against her is as a co-perpetrator, which necessarily involves proof of the acts of others to establish her offending.

105    The question of dual criminality involves an assessment of whether the conduct alleged to have been engaged in by the applicant, if carried out in New South Wales, would have constituted an offence under the offence provisions relied upon by the respondents, disregarding labels and characterisation.

106    As observed earlier, the allegations in the extradition request are that the applicant was a DINA agent at the Simón Bolívar Headquarters; she was aware of the function of the Simón Bolívar Headquarters and work performed by DINA agents at the headquarters, which included the detention and interrogation of people, and serving as a guard; and she participated actively in that work.

107    The Magistrate accepted that the offence of Participation in Criminal Groups pursuant to s 93T(1) of Crimes Act 1900 (NSW) (Crimes Act) is an equivalent offence.

108    The elements of the offence of participating in a criminal group are: (1) there was a criminal group (within the meaning of s 93S(1)); (2) the accused participated in that group; (3) the accused knew, or ought to have known, it was a criminal group; and (4) the accused knew, or ought to have known, that his or her participation in that group contributed to the occurrence of any criminal activity.

109    A criminal group is defined as “a group of 3 or more people who have as their objective or one of their objectives”, which relevantly includes, committing serious violence offences: s 93S(1). A serious violence offence is one punishable by imprisonment for life or for a term of 10 years or more, where the conduct constituting the offence involves: (a) loss of a person’s life or serious risk of loss of a person’s life, or (b) serious injury to a person or serious risk of serious injury to a person, or (c) serious damage to property in circumstances endangering the safety of any person, or (d) perverting the course of justice (within the meaning of Part 7) in relation to any conduct that, if proved, would constitute a serious violence offence as referred to in paragraph (a), (b) or (c). A group of people is capable of being a criminal group whether or not any of them are subordinates or employees of others, only some of the people involved in the group are involved in planning, organising or carrying out any particular activity, or its membership changes from time to time: s 93S(2).

110    The Magistrate concluded, inter alia, at [68], [76]-[80]:

[68] I am satisfied that there is sufficient material within the documentation relied upon by the [Chile] identifying the role of the [applicant] in each of the offences alleged against her. Contrary to submission made for the [applicant], there is information contained in depositions that the [applicant] was part of DINA. There is ample material by way of depositions referred to in the English bundle supporting a finding that agents of DINA were part of a criminal group.

….

[76] I agree with the submissions by [Chile] to the effect that the Extradition Request makes it clear that DINA agents would detain member of the Communist Party and take them to the Simon Bolivar headquarters or compound where the detainees were interrogated using physical and psychological means to extract information, and then kill them, destroy means of identification and dispose of the bodies.

[77] I can be satisfied for the purpose of considering an equivalent offence that one of the objectives of DINA was the commission of serious violence offences, as contemplated in s.93S(1).

[78] I have already referred to, and rejected, Mr Santisi’s submission in relation to the Chilean allegations that “there needs to be a positive statement that she … was part of the decision making apparatus that brought about their (the detainees) ongoing detention”.

[79] To the extent that the submission might be said to have application in considering an equivalent offence must also be firmly rejected. Section 93S(2)(a) and (b) is specific in that regard concerning employees of others, subordinates, and where only some of the people involved in the group are involved in planning, organising or carrying out any particular activity.

[80] I am satisfied that on the information in the Extradition Request, Ms Rivas participated in the criminal group, knew or ought reasonably to have known both that DINA was a criminal group and that her participation in the group contributed to the occurrence of criminal activity.

111    In reaching that conclusion the Magistrate addressed and rejected the applicant’s factual arguments, which the applicant has repeated in this Court. The conclusion on the s 93T offence is sufficient to establish this s 19 requirement. There is ample evidence in the extradition material to enable this conclusion to be reached.

112    I accept the respondent’s submission that the applicant’s contention that the alleged conduct was sanctioned by the State at the time, does not assist her, as the State sanctioned nature of an organisation or group (or any suggestion as to being an employee thereof) does not preclude it from also being a criminal group within the meaning of s 93T. Nor does it assist to suggest that the applicant cannot commit any offence because she was in effect a low ranking employee, with no power or control. As the passage above reflects, the Magistrate properly rejected the submission that the applicant needed to have decision making power. Leaving aside that there appears to be no factual basis for the assertion as the extradition request alleges that she was an operative agent, as referred to above, a group of people is capable of being a criminal group whether or not any of them are subordinates or employees of others, only some of the people involved in the group are involved in planning, organising or carrying out any particular activity, or the membership of the group changes from time to time: s 93S(2).

113    I do not accept the applicant’s submission that there is no material as to the applicant’s state of mind. Frequently, a person’s state of mind is established by drawing inferences from the facts and surrounding circumstances, including the acts of the person. This is no different. Inferences as to the applicant’s state of mind for the purpose of an equivalent offence, are capable of being drawn from a proper reading of the material in the extradition request as a whole.

114    I note also in this context that it is alleged that DINA made efforts to keep their activities hidden, which included disposing of bodies in a manner such that they could not be identified or found, which, if established, would be capable of demonstrating a general awareness of the criminality of the conduct irrespective of the fact that it was State sanctioned.

115    Although the Magistrate was satisfied in respect to the s 93T offence, nonetheless, the Magistrate also considered and was satisfied that the offences involving crimes against humanity in Div 268, Subdivision C of the Criminal Code 1995 (Cth) applied as an equivalent offence, at least by application of the ancillary liability in s 11.2(1) of the Criminal Code. At [82]-[84] the Magistrate concluded:

[82] Within that subdivision, Chile relies upon offences of murder (s.268.8), imprisonment or other severe deprivation of physical liberty (s.268.12), torture (s.268.13) and enforced disappearance of persons (s.268.21). Each of those offences are extradition offences given the penalties exceed one year imprisonment. Chile asserts that “the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.” Such conduct is referred to at pages 239 and 240 (English bundle). The statement of conduct asserts that it was the clear mission of the DINA group, including members of the Lautaro Brigade to carry out those offences on specific persons.

….

[84] I am satisfied that the elements in section 11.2 are established by the information contained in the Extradition Request, namely that the principle offences alleged were committed by agents or DINA upon the persons named in the indictments; the [applicant] had knowledge of the essential facts and circumstances of those principal offences, and being armed with such knowledge provided intentional assistance or encouragement.

116    As can be seen from statement of conduct referred to above at [76]-[77], the extradition request provides a basis to conclude that crimes against humanity with the Criminal Code, occurred. Given the description in the extradition request of the nature of the conduct at the Simón Bolívar Headquarters, and that the applicant was an active agent or operative actively participating in DINA’s activities, it can be inferred that she would have been aware of the relevant facts and circumstances. In that context, and armed with that knowledge the element of assistance or encouragement in that conduct would also be established.

117    The offences referred to above were those relied on by the respondent as equivalent offences to establish this requirement. Those satisfy the requirement.

118    Nonetheless, and although it was not necessary to go further, the Magistrate also found that the offence of kidnapping (also known as Take and Detain) pursuant to s 86 of the Crimes Act 1900 (NSW) is also readily established as an equivalent offence based on the extradition request material. In doing so the Magistrate concluded at [86]:

The often repeated suggestion in the [applicant’s] submissions that the act of ‘arrest’ means that a kidnapping has not occurred, would have no bearing on the question of whether an offence pursuant to section 86 is established since the terms “takes” or “detains” are disjunctive. The act of detaining need not refer to the time of arrest. If on the [applicant’s] submission the arrest was lawful, the subsequent detainment for interrogation, torture and murder was not.

119    The applicant has not established any error in the Magistrate’s conclusion that the above offences are equivalent offences, and that dual criminality has been established.

120    The applicant’s submission that the respondent’s failure to rely on the offence of kidnapping under NSW criminal law as an equivalent offence, such that it “ought to be taken and seen as conceding that there is in fact no conduct, that is no act or omission that can be sheeted home to the applicant, that is in fact done by the applicant or failed to be done by the applicant or both, that meets the elements of a kidnaping under New South Wales Law nor Commonwealth Law”, and therefore dual criminality requirement is not established, misunderstands the relevant principles described above. The applicant’s submission that the Magistrate was not entitled to find that the offence of kidnapping also was an equivalent offence in the absence of a submission by the respondent, is incorrect. It is not uncommon that in considering the issue of dual criminality additional offences will be identified: see for example, Liem v Republic of Indonesia [2017] FCA 1303 at [99].

121    The applicant’s submission that these were arrests and not kidnappings, as the respondent contended, is a mischaracterisation of the conduct and not supported by a fair reading of the extradition request as a whole, which focusses on three stages of alleged conduct: kidnapping, detention and disappearance (being killing). The applicant’s complaint focusses only on the kidnapping, which is the first stage, which she characterises as an arrest, but ignores the totality of the alleged conduct, to which regard can be had in determining whether dual criminality is satisfied.

122    In any event, it is only necessary that one equivalent offence exist.

123    I note that while the applicant submitted that there are numerous defences available to her, such as mistake of fact, duress and necessity, disclosed in the material, she did not provide any references to the extradition request to support this contention. It is also not supported by a fair reading of the extradition request as a whole. Additionally, defences are matters for trial, not for the extradition process. As the respondent correctly submitted, in any event, the effect of defences is not to remove the basis for the criminal conduct (instead, they constitute an answer to it, which is best placed for adjudication at trial in accordance with the domestic criminal laws of the requesting State).

124    Finally, I observe that the applicant’s submission on this requirement fails to grapple with the nature of the allegations made against her as reflected in the extradition request.

125    The Magistrate correctly concluded that the requirement of dual criminality is satisfied as required by section 19(2)(c) of the Extradition Act.

Extradition objections: s 19(2)(d)

126    As set out above the grounds of review for this subsection are 20-24, although ground 24 relates more generally to the principle of legality and appears to have a broader ambit.

127    Section 19(2)(d) requires a magistrate to be satisfied that there are not substantial grounds for believing that there is an extradition objection. This threshold is “evaluative in character” and requires that a real or substantial risk be demonstrated: Cabal v United Mexican States (No 2) [2000] FCA 445; (2000) 172 ALR 743 (Cabal (No 2)) at [15]; cited with approval by the Full Federal Court in Rahardja v Republic of Indonesia [2000] FCA 1297 at [38]-[39] and [47], and Traljesic at [22].

128    As is apparent from Cabal (No 3) at [220], recited above at [44], the onus is upon the applicant and while it does not require that the extradition objection is proven on the balance of probabilities, “that onus is not easily discharged”.

129    The definition of an “extradition objection” is contained in s 7 of the Extradition Act and is set out above at [10].

130    The applicant relies on each objection, and it is therefore necessary to deal with each in turn. In doing so I note that much of the submission is based on premises advanced and rejected in respect to the preceding s 19 requirements. Many of the submissions overlap or are repeated in respect to each basis of objection.

Political offence objection: s 7(a)

131    An extradition objection arises if the extradition offences for which a person may be surrendered to a foreign country are ‘political offences’ in relation to that country: s 7(a).

132    A “political offence” is defined in s 5 of the Extradition Act as follows:

political offence, in relation to a country, means an offence against the law of the country that is of a political character (whether because of the circumstances in which it is committed or otherwise and whether or not there are competing political parties in the country), but does not include:

(a) an offence that involves an act of violence against a person’s life or liberty; or

(b) an offence prescribed by regulations for the purposes of this paragraph to be an extraditable offence in relation to the country or all countries; or

(c) an offence prescribed by regulations for the purposes of this paragraph not to be a political offence in relation to the country or all countries.

133    The definition is to be read in conjunction with reg 2B of the Extradition Regulations 1988 (Cth). If an extradition offence falls within subsections (a) to (c) of the definition, read in conjunction with reg 2B, it is not open to a decision-maker to find that the extradition offence is a political offence in relation to the country requesting extradition.

134    The applicant’s submissions are not directed to the relevant issues that arise under this subsection or reasons given by the Magistrate. The Magistrate correctly referred to three bases on which the applicant’s submission could not be accepted.

135    First, subsection (a) of the definition excludes “an offence that involves an act of violence against a person’s life or liberty”. As the Magistrate correctly concluded at [91], “the Extradition Request makes it unambiguously and abundantly clear by the wording of the multiple indictments for aggravated kidnapping, and the supporting statement of conduct which refers to detainment, confinement, torture and murder or ‘disappearance’, that the offences alleged involve acts of violence against a person’s life or liberty”. Although ground 21 asserts that “[i]t was not open to the Magistrate to ignore the Political Offence Objection, as there was no material that the Applicant in fact did any Act of violence”, as I have observed above at [83], [103]-[104] and [121]-[125], that assertion is not based on a fair reading of the material contained in the extradition request. That the alleged offences, properly understood, involve an act of violence against a person’s life or liberty is sufficient to dispose of the applicant’s submission.

136    Second, and in any event, contrary to the applicant’s submission, it is not the context in which the alleged offending occurs that makes an offence a political offence for the purpose of this objection, but rather the relevant enquiry must have regard to the applicant’s purpose in carrying out the alleged offending, and whether the offending was reasonable and proportionate to that political purpose: Minister for Immigration and Multicultural Affairs v Singh [2002] HCA 7; (2002) 209 CLR 533 (Singh) at [21], [44], [46], [141], [165]. There is no evidence as to the applicant’s purpose when engaging in the alleged conduct. Rather, the applicant denies involvement in the alleged offences.

137    Third, in any event, the forced kidnapping, torturing and permanently disappearing of civilians suspected of having views not aligned with the military junta could never be proportionate or reasonable to achieving any political purpose: Singh at [21], [46], [141].

138    The applicant’s challenge to this objection is not established.

Prohibited purpose: s 7(b)

139    In Cabal (No 3), French J observed at [216]:

The subject matter of the objection under s 7(b) is the actual purpose for which the surrender of the requested person is sought. The content of that purpose is “... prosecuting or punishing the person on account of his or her ... political opinion ... in relation to the extradition country”. It cannot be contended before the magistrate in s 19 proceedings that the requested person has not engaged in conduct constituting an extraditable offence for which his or her surrender is sought: s 19(5). So the issue raised under s 7(b) must be raised on the premise that the person has engaged in conduct constituting the offence. This excludes debate before the magistrate that the charges have been falsely fabricated because of the person’s political opinion. That wider consideration, if available at all, is reserved for the Attorney-General in deciding whether to issue a notice under s 16 and, ultimately, whether to surrender the requested person under s 22.

140    His Honour went on to observe at [227]:

In my opinion, which is not advanced as an exhaustive proposition, an extradition objection under s 7(b), in proceedings before the magistrate, will not usually be made out unless:

1. A well-defined political opinion, at the time of the request for surrender, is or has been held by the applicant.

2. The content and the history of expression of, or action upon the asserted political opinion by the applicant is such as to be of demonstrable concern to the requesting government and to form a credible basis of that government's desire to prosecute or punish the applicant.

3. There is material of probative value on which the inference is open that the crucial decisions underlying the request for extradition by the requesting government have been taken because of the applicant's political opinions.

141    This objection is concerned with extradition where the real motive of a requesting State is to prosecute or punish a person for a prohibited purpose, including on account of political opinions held or for a political offence, as opposed to pursuing the legitimate administration of criminal justice. It is necessary for the extraditee to demonstrate a causal link between the prohibited purpose alleged and the prosecutorial response taken by the foreign State, although a bare causal connection would be insufficient. In circumstances where the offences are serious and as such would ordinarily be prosecuted, it would require a ‘weighty case’ to support the contention that an extradition request had been presented by a foreign country in bad faith or for an ulterior purpose (as opposed to the purpose of the legitimate administration of criminal justice): see the discussion in Cabal (No 3) at [216]-[219].

142    The applicant contended that she is being prosecuted not for anything she has in fact done, but rather for political offences and for her political opinion.

143    As to the submission that this is a political offence, the Magistrate correctly referred to the definition of political offence, and the exclusion in subparagraph (a), as discussed above at [131]-[137].

144    The submission as to her political opinion is based on an assertion that the applicant participated in a documentary television program from which statements she made could be taken to be seen “as totally supporting the Pinochet Regime and as such taken as justifying torture and otherwise being pejorative of those taken to have Communist views”.

145    Any comments the applicant made in the documentary post-date the institution of the prosecution against the applicant in Chile. That alone reflects that this objection, based on that documentary is ill-founded. As the Magistrate also observed, the extradition request reflects that a number of people have been prosecuted for similar offences, with there being no suggestion in those matters that they were based on political opinions. Moreover, as the Magistrate correctly concluded, there is no material in the extradition request suggesting that her political views are the motive for the prosecution. That the applicant’s location may have become known as a result of her participation in the documentary, which may have prompted action on her extradition, does not change that she had already been charged with these offences, and had left Chile in breach of her bail in relation to them.

146    The applicant’s challenge to this objection is not established.

Prejudice or punishment on account of political opinions: s 7(c)

147    In Republic of Croatia v Snedden [2010] HCA 14; (2010) 241 CLR 461, Gummow, Hayne, Crennan, Kiefel and Bell JJ emphasised the relationship between s 7(c) and the existence of an extradition offence which bears a political character at [69]-[70]:

[69] There was no dispute between the parties that s 7(c) requires a causal connection between the punishment the respondent might suffer on trial, after surrender, and his political opinions. The phrase "by reason of" means that the person may be punished, detained or restricted in his or her personal liberty because of his or her political opinions. Section 7(c) relevantly requires the respondent to show that on trial, after surrender, he may be punished because of his political opinions. This construction is consistent with statements in this Court interpreting the similar phrase "for reasons of" in the context of the definition of a refugee in Art 1A(2) of the Refugee Convention. There, the term "refugee" applies to a person having a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion".

[70] As to context and purpose, the provenance of s 7(c) discussed above reveals that the intention of the predecessors to s 7(c) found in the 1966 Acts was to enlarge the "political offence" exception to extradition by reference to Art 3.2 of the European Convention on Extradition. There is nothing in the history of the current Extradition Act to suggest that any different intention applied to s 7(c). The express intention to enlarge the political offence objection was achieved by a requirement that a court take into account the future possibility, on trial after surrender, of prejudice, punishment, detention or restriction in personal liberty by reason of political opinions [citations omitted]

148    French CJ also emphasised the critical aspect of causation at [21]-[23]:

[21] The antecedents of the extradition objection in s 7(c) do not suggest that it is rooted in or confined by concepts of differential treatment. Rather it is directed to protecting people from extradition to a country in which they might be punished on account of the listed attributes including political opinion. It is not necessary, in order to invoke that objection, that it be shown that such a person is treated less favourably than some other person in similar circumstances, but lacking the requisite attribute. On the other hand, demonstrated differential treatment may support an inference and a finding of fact that the requisite causal connection exists between punishment and one of the attributes mentioned in s 7(c).

The application of s 7(c) in the present case

[22] The causal connection between punishment and political opinion in s 7(c) is defined by the words "by reason of". Those words have appeared in more than one statutory setting including the definition of "refugee" in Art 1A(2) of the Refugees Convention effectively incorporated by reference into the criteria for the grant of protection visas under the Migration Act 1958 (Cth), and various anti-discrimination and equal opportunity statutes. In those contexts and others they have been equated to terms such as "because of", "due to", "based on" and "on the ground of". Generally speaking "by reason of" has been held to connote a cause and effect relationship.

[23] The words of s 7(c) require attention to be given to the existence of a causal connection between apprehended punishment and the political opinions of the respondent. It is not necessary in this case to explore the range of matters covered by the term "punishment". The apprehended risk, as asserted on behalf of the respondent, is a term of imprisonment enhanced by reference to the respondent's political opinion. Imprisonment is well within the meaning of "punishment" in s 7(c). In so saying I do not dissent from the general proposition in the joint judgment that the absence of a mitigating factor which could lead to a lesser sentence does not necessarily mean that the offender is punished or punished more because of its absence. The respondent does not really argue to the contrary. Rather he contends that the mitigating factor of prior service in the Croatian army was so connected to his political opinions that he could be said to be at risk, because of those opinions, of a heavier punishment than he would otherwise have suffered. In considering that argument, it can be accepted that a negatively expressed mitigating factor referring to or implying the absence of some attribute could be regarded as giving rise to a risk of greater punishment on account of the presence of that attribute. [citations omitted]

149    In Kalinovas v Republic of Lithuania [2015] FCA 961, Bennett J discussed the “punishment” aspect of s 7(c) at [96]-[98]:

[96] …Section 7(c) of the Act is not directed to what may happen to a person in gaol by reason of the actions of other inmates or guards, where those actions are merely of individuals and not shown to be caused by or condoned by the state. There is no evidence that Mr Kalinovas may be prejudiced, punished, detained or restricted in his liberty by the state, or at his trial, or in his sentence after trial.

[97] The extradition objection as defined in s 7(c) of the Act must also be in relation to the offence. Mr Kalinovas’ evidence does not go to his treatment in relation to the offence but to his differential treatment from individual Lithuanians in the confined environment of a gaol to which he will be sent, if convicted of the offence. He has not established a causal connection between any sentence of imprisonment and his nationality or religion or that he will be prejudiced or punished as part of Lithuania’s criminal process.

[98] It follows that he has not established that there are substantial grounds for believing that there is an extradition objection in relation to the offence and that the application should be dismissed.

And see: Traljesic at [29] and [103]-[104].

150    The applicant’s submission on this objection, in so far as it is based on her contentions as to this being a political offence and her political opinions as addressed above, are misconceived and are wholly unsupported by a fair reading of the whole of the material contained in the extradition request.

151    The remainder of the submission advanced appears to be speculative and at its highest addresses mere possibilities. The submission is based on bald assertions. The applicant has not adduced any evidence in support of any contention that she may be prejudiced, punished, detained or restricted in her liberty by the State, or at her trial, or in her sentence after trial by reason of her political opinions.

152    The Magistrate’s rejection of the applicant’s submission was correct.

Military offence: s 7(d)

153    This objection only arises if the conduct constituting the offence would constitute an offence under the military law, but not also under the ordinary criminal law of Australia. That accords with the plain reading of the text of the provision. This language reflects the scope of the provision as explained in the Replacement Explanatory Memorandum, Extradition Bill 1987, Hansard, 28 October 1987, “a military offence is an offence known exclusively to military law and is therefore an offence not known to the ordinary criminal law”. Examples of offences under the Defence Force Discipline Act 1982 (Cth), which are “purely” or “exclusively” military, include abandoning or surrendering a post, harbouring enemies, mutiny, or desertion. The objection does not arise simply on the basis that the alleged conduct involves a person acting in a military capacity, or which takes place in the context of a military conflict.

154    The applicant’s submission, which is based on the assertion that the offences occurred during military operations, are therefore misconceived. The conduct alleged in this case, as reflected by the extradition request, is capable of constituting offences known to the ordinary (civilian) criminal law in Australia.

155    Moreover, as the Magistrate correctly observed at [113]-[114]:

[113] No attempt is made on behalf of the [applicant] to identify precisely what military law offence may have been committed; why military law should apply exclusively; what is meant by rules of engagement; nor has it been argued as to why the law of New South Wales or the Commonwealth Criminal Code should not apply even if military offences were identified.

[114] I note the [applicant] was indicted on civilian criminal offences in Chile, and not military offences.

156    Despite that conclusion by the Magistrate, the applicant did not attempt to identify any of those matters in this Court. Rather, as was the predominant approach to the applicant’s submission, the assertions made below are simply repeated in this Court, with no attention, or proper consideration being paid to the basis on which they were not accepted by the Magistrate. The Magistrate was correct to reject the applicant’s submission in relation to this objection.

Pardon: s 7(e)

157    The applicant’s submission, in summary, is that the effect of the Amnesty Law is that she has been pardoned within the meaning of s 7(e). In this respect the applicant relies on Article IV of the Treaty. However, Article IV of the Treaty cannot modify the operation of s 19 of the Extradition Act. Article IV specifies the circumstances when “extradition shall not be granted”. To the extent that the same considerations are reflected in the terms of the Extradition Act, the Article has no effect on domestic law. To the extent that it adds new constraints on extradition, these new constraints are considered by the Attorney-General at the s 22 stage of the process, see s 22(3)(e) of the Extradition Act: Rivas (No 2) at [70].

158    It is appropriate to focus at the outset on the meaning of s 7(e), which is recited above at [10].

159    This provision was addressed in Harris, at first instance: Harris v Attorney-General of the Commonwealth [1993] FCA 466; (1993) 45 FCR 11 (Ryan J) and on appeal: Harris v Attorney-General of the Commonwealth [1994] FCA 1320; (1994) 52 FCR 386 (Harris).

160    The circumstances there under consideration were that Mr Harris had been acquitted as part of the prosecution process in Argentina, and had freely left Argentina thereafter. However, that acquittal was appealed, as provided for under Argentine law, and the acquittal was overturned and a conviction entered against Mr Harris.

161    Ryan J observed in relation to s 7(e) at 27:

The two limbs of that sub-section are acquittal or pardon, and undergoing of the punishment provided by law. Both limbs in mutually exclusive ways, contemplate the result that the person is no longer subject to prosecution or punishment in relation to the extradition offence. Seen in that light, the two limbs of s.7(e) reflect the nature of the obligation to extradite contained in Article 1 of the Treaty. The two classes of persons whom Argentina and Australia have agreed to subject to extradition are first, those wanted for prosecution and second, those who are wanted for the imposition or enforcement of a punishment. The obligation to extradite therefore requires that the subject be amenable to legal process and its enforcement. In my view, s.7(e) creates an extradition objection in circumstances where there is no obligation to extradite because the person is no longer amenable to legal process or punishment.

162    And later at 29:

…s.7(e) raises the fundamental question of whether or not there is an obligation to extradite. It therefore requires an assessment of whether or not there has been a final determination of the merits of the case…

163    On appeal, that conclusion by Ryan J was challenged.

164    The Full Court concluded in Harris at 410C-F:

In the present matter, Ryan J said (at 27):

"In my view, art 118(6) of the Argentine Code of Procedure provides a distinct statutory authority for an appeal against the 'acquittal' which the applicant achieved by virtue of the verdict of Judge Reynoso. It was therefore open to the Attorney-General to conclude that the applicant had not been acquitted within the meaning of s.7(e) of the Act."

His Honour went on to say (at 28):

"The applicant's contentions involve the proposition that 'acquitted' in s.7(e) should be regarded as importing the concept of acquittal as it is understood and applied in Australian domestic law. However, in my view, the construction of s.7(e) which best gives effect to the intention of the Act and of the Treaty is one which interprets s.7(e) as requiring an assessment of whether there has been a final determination of the merits of the case. I reach that conclusion, not on the basis of construing the word 'competent' as meaning not amenable to appeal but for the reason that s.7(e) is, in its context, predicated on circumstances in which the person is no longer subject to prosecution or punishment in relation to the extradition offence."

We agree.

The present question is, in our view, to be resolved by reference to the laws of Argentina to which reference has been made. In other words, s.7(e) of the Act must take the laws of that country as it finds them (see Haddad v Larcombe (1989) 42 A Crim R 139 per Wilcox J at 148). In our opinion, at the time of the making of the request and at the time of the issue of the s.16(1) notice, the appellant was not, under the laws of Argentina, a person who had been "acquitted" of the extradition offence.

165    A consideration of s 7(e) must take the laws of that country as it finds them: Harris at 409E-410F; Haddad v Larcombe (1989) 42 A Crim R 139 (Haddad v Larcombe) at 148. That refers to all the law of that country: Harris at 410B; R v Tardrew (1988) 37 A Crim R 264 at 277.

166    The applicant’s submission cannot be accepted.

167    First, it is apparent from the text of this objection, and it is reflected by the authorities as to its meaning, that it is directed to the concept of double jeopardy: see Haddad v Larcombe at 148.

168    The question therefore is whether or not there has been a final determination of the merits of the case. Once that is accepted, it is apparent that the applicant’s case has not been determined on its merits. The Amnesty Law (even if it were to apply), is not an assessment on its merits, and consequently does not fall within s 7(e). If the Amnesty Law is available as a defence in the applicant’s prosecution, that is a matter for the domestic Chilean proceedings if the applicant is surrendered. At the time of the extradition request the applicant has not, under the laws of Chile, been pardoned.

169    Second, even on the applicant’s case the Amnesty Law at the time of the extradition request is interpreted by the Supreme Court of Chile as not applying to ongoing crimes (such as kidnapping) and crimes against humanity, the offences on which extradition is sought. The applicant’s submission is therefore based on the premise that the Magistrate, and this Court should not take the laws of Chile as it currently stands. That approach is inconsistent with the authorities referred to above at [165]. At the time of the extradition request, under the laws of Chile, the Amnesty Law does not apply. Therefore the applicant’s submission, based on an assertion that the Amnesty Law is the same as a pardon, does not advance her case.

170    Third, the applicant has not addressed Harris, or the relevant authorities as to the meaning of s 7(e). Nor has the applicant addressed any of the reasoning of the Magistrate, and the conclusion that the law of Chile is that the Amnesty Law and the statute of limitations has no application to the types of offences for which the applicant was indicted: at [126]. Rather, the applicant’s written submission is a recitation of that below, and relies on purported legal dictionary definitions, which appear to be American (the definitions being unsourced in the submissions), to contend that the words pardon and amnesty are interchangeable, or at least have the same end result. Leaving aside that an amnesty overlooks an offence whereas a pardon is understood to be a dispensation or reprieve from punishment without touching a conviction, the submission misses the point. It does not address the meaning of s 7(e), which is critical to its application. The submission is not consistent with the interpretation of s 7(e), as explained in Harris.

171    The applicant’s challenge to this objection is not established.

Conclusion

172    The applicant has not established any of the grounds of review. It follows that the application must be dismissed. I confirm the order of the Magistrate dated 29 October 2020, made under s 19(9) of the Extradition Act.

173    It follows that the applicant is eligible for surrender, within the meaning of s 19(2) of the Extradition Act, in relation to the seven counts of aggravated kidnapping, contrary to Article 141 No.3 of the Criminal Code (Chile), for which her extradition is sought.

174    The applicant is to pay the respondent’s costs to be agreed or taxed.

Associate:

Dated:    24 June 2021