Prabowo, Subagio Lagaida v Republic of Indonesia
[1997] FCA 384
•20 MAY 1997
CATCHWORDS
EXTRADITION - Review of decision of magistrate that appellant is eligible for surrender on each of four charges and orders committing him to prison to await surrender or release - Form of supporting documents tendered to magistrate - Documents authenticated by senior public servant - Whether authenticator was an "officer" within the meaning of s 19(7)(a) of the Extradition Act 1988 - One offence not shown to fall within list of offences contained in Australia-Indonesia extradition treaty - Whether magistrate was required or permitted to have regard to that fact.
Extradition Act 1985, ss 5, 11, 19 and 22
No. NG.79 of 1997
SUBAGIO LAGAIDA PRABOWO v REPUBLIC OF INDONESIA and
BOYD DOMINIC CLEARY
CORAM:WILCOX, MOORE and TAMBERLIN JJ
PLACE: SYDNEY
DATE: 20 MAY 1997
IN THE FEDERAL COURT OF AUSTRALIA )
)No. NG.79 of 1997
NEW SOUTH WALES DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:SUBAGIO LAGAIDA PRABOWO
Appellant
AND:REPUBLIC OF INDONESIA
First Respondent
and
BOYD DOMINIC CLEARY
Second Respondent
CORAM:WILCOX, MOORE and TAMBERLIN JJ
PLACE: SYDNEY
DATE: 20 MAY 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal be dismissed.
The appellant, Subagio Lagaida Prabowo, pay the costs of the first respondent, Republic of Indonesia.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)No. NG.79 of 1997
NEW SOUTH WALES DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:SUBAGIO LAGAIDA PRABOWO
Appellant
AND:REPUBLIC OF INDONESIA
First Respondent
and
BOYD DOMINIC CLEARY
Second Respondent
CORAM:WILCOX, MOORE and TAMBERLIN JJ
PLACE: SYDNEY
DATE: 20 MAY 1997
REASONS FOR JUDGMENT
THE COURT: This appeal from a decision of Whitlam J raises two questions concerning the Extradition Act 1988: the meaning of the word "officer" in s 19(7)(a) of the Act; and whether or not a magistrate, conducting proceedings to determine if a person is eligible for surrender in relation to an extradition offence, is concerned with any limitation on the range of extradition offences imposed by a treaty between Australia and the requesting State.
The facts
Sometime before August 1995, the Republic of Indonesia, the first respondent to this appeal, requested Australia to extradite the appellant, Subagio Lagaida Prabowo, on four charges. They were shortly described as "embezzlement", "fraud", "forgery" and "bank offence". The application was supported by copies of an arrest warrant for each charge and a statement setting out the conduct alleged to constitute the offences, which were all related. The then Australian Attorney General apparently issued a notice under s 16 of the Act and the matter came before a magistrate, Mr Gentle SM. On 16 August 1995, Mr Gentle determined that Mr Prabowo was eligible for surrender for extradition in respect of each charge. Pursuant to s 19(9) of the Act, he ordered that Mr Prabowo be committed to prison to await surrender or release under s 22(5) of the Act.
Mr Prabowo sought review of that order and Hill J set it aside: see Prabowo v Republic of Indonesia ("Prabowo No.1")(1995) 61 FCR 258. In arriving at his decision, Hill J rejected a submission that the supporting documents tendered by the Republic of Indonesia were inadmissible because they were authenticated by a person who was not an officer of a court. However, he held that the documents were not shown to be sealed in the manner required by s 19(7)(b) of the Act. The decision of Hill J was announced on 15 December 1995.
Although the document is not in evidence, it appears the Republic of Indonesia made a second extradition request in relation to Mr Prabowo on 12 January 1996, referring to the same four alleged offences and submitting the same supporting documents. Like their predecessors, the documents were authenticated by the certificate of Rachmaniah Machrany, Director of Criminal Affairs, Directorate General for Legal Affairs in the Indonesian Ministry of Justice. The certificate was signed by Mr Machrany and sealed with a seal purporting to be that of the Director General of Law and Legal Affairs in the Ministry of Justice.
On 25 January 1996 the then Attorney General issued a further s 16 notice. The notice came before Mr B D Cleary SM, the second respondent to this appeal. Mr Cleary conducted a further proceeding under s 19, at the end of which he held that Mr Prabowo was eligible for surrender on all four charges and ordered that he be committed to prison to await surrender or release pursuant to s 22(5). Once again, Mr Prabowo applied for review. On this occasion, the application came before Whitlam J who, on 22 January 1997, ordered the application be dismissed. Mr Prabowo has appealed against that order.
The meaning of "officer"
The appellant's first submission is that Whitlam J erred in holding (as had Hill J before him) that it was open to the magistrate to find that Mr Machrany was an "officer" within the meaning of s 19(7)(a) of the Act. In order to put this submission in perspective, it is desirable to set out subs (1), (2), (3) and (7) of s 19:
"(1)Where:
(a)a person is on remand under section 15;
(b)the Attorney General has given a notice under subsection 16(1) in relation to the person;
(c)an application is made to a magistrate by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and
(d)the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;
the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.
(2)For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:
(a)the supporting documents in relation to the offence have been produced to the magistrate;
(b)where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate of any other documents - those documents have been produced to the magistrate;
(c)the magistrate is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and
(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.
...
(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 administered the Government of that country or of any person administering a Department of the Government of that country."
Counsel for Mr Prabowo say the role of s 19(7) is to ensure judicial supervision, within the Requesting State, of the propriety and adequacy of the documents provided to Australia by that State. They refer to a comment about s 19(7)(a) made by a Full Court in Zoeller v Republic of Germany (1989) 23 FCR 282 at 300:
"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 so, 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." (emphasis added)
Counsel focus on the emphasised sentence in this passage. They say the reference to "officer" in s 19(7) must, in its context, be taken as a reference to a judicial officer or an officer of a court; certification by a court registrar would suffice, but certification by a police officer would not. They refer to the principle of strict construction in matters involving individual liberty - see per Brennan J in Re Bolton; ex parte Beane (1987) 162 CLR 514 at 523 - and say this principle is all the more important where the relevant extradition treaty, as here, allows extradition only for specified offences. They say it is "clearly desirable that there be some judicial involvement in the Requesting State to ensure that extradition is only requested in respect of offences on the list". Counsel also refer to para (b) of subs (7). They contrast the words used in para (a), "officer in or of the extradition country", with the formula used in subs (7)(b)(i): "officer of the Government, of the extradition country".
We do not find these arguments persuasive. We agree with Hill and Whitlam JJ that the word "officer" is not
limited to an officer of a court. Contrary to the submission of counsel, we do not think the person who authenticates the supporting documents is required to determine whether the alleged offence or offences are specified in the relevant extradition treaty (if any). Neither is the authenticator concerned with the adequacy of the statement in writing, required by s 19(3)(c)(ii), setting out the conduct constituting the offence. The first of these two subjects is a matter for consideration by the executive authorities of the Requesting State and Australia; it will not usually be a matter for the magistrate to determine (see below). The second subject is a matter for the magistrate. If there is no document that amounts to "a duly authenticated statement in writing setting out the conduct constituting the offence", the magistrate must conclude that s 19(2)(a) is not satisfied; accordingly, the person will not be eligible for surrender.
The purpose of subs (7) is to indicate what is required by phrases like "duly authenticated warrant", in subs (3)(a), and "duly authenticated statement" in subs (3)(c)(i) and (ii). Parliament wished to ensure the genuineness of any documents placed before a magistrate under s 19. For this purpose it required a signature or certificate. But Parliament did not require the signer or certifier to vouch for the truth of the statements in the documents. It would ordinarily be impossible for one person to vouch for the truth of all the facts alleged in a statement setting out the conduct said to constitute the offence.
It seems to us there is no reason to confine narrowly the meaning of the word "officer". The relevant officer must be an officer "in or of" the Requesting State. We agree with Hill J in Prabrowo (No.1) that the person must be the holder of a public, rather than private, office in or of that State. We agree also with his observation that there will be many officers whose offices make them inappropriate signers or certifiers. As Hill J said at 267:
"I think the answer lies more in administrative practice and diplomatic convention than in semantics. Extradition is essentially a government to government request, necessitating then the taking of proceedings in the State from which extradition is sought. There could thus be an expectation that the class of officer who would certify the extradition documents would be appropriate to a particular circumstance."
Hill J made the point, also at 267, that, where there has been a conviction, one might expect a judicial officer to certify the relevant facts; but where the matter has not reached that stage, it is difficult to see a policy reason for "requiring signature by a judicial officer as against, for example, signature by a senior police officer who, in many cases, would be responsible for the laying of a charge or the issue of a warrant". We add the comment that adoption of the appellant's argument would require Australian courts to reject documents certified by the lawyer in charge of a prosecution, such as a Director of Public Prosecutions or a United States District Attorney. This would be odd, given that any judge, magistrate or court officer asked to give a certificate would probably be dependent upon such a person for information about the case.
Two other points should be mentioned. First, we agree with Hill J that the maxim of interpretation associated with the Latin tag noscitur a sociis does not apply to limit the word "officer" to a court official. The words "judge, magistrate or officer" share the common characteristic of public office, but little else. If it had been intended that the officer be a court official, it would have been easy to say so. Second, again like Hill J, we gain no assistance from para (b) of s 19(7). That paragraph is concerned with the seal to be affixed for the purposes of authentication, if the documents are not authenticated by oath or affirmation. In the context of a reference to the seal of the extradition country - that is, the Requesting State - or a Minister, Department of State or Department of that country, we think it apparent that the words "officer of the Government" are intended to refer to an officer who occupies an office that has a separate identity, perhaps being created by or under a statute. The office of Director of Public Prosecutions may be an example. We think the word "officer" is used in this special sense in s 19(7)(b)(i) and its use casts no light on the meaning of "officer" in s 19(7)(a).
"extradition offence"
The term "extradition offence" is defined in s 5 of the Extradition Act in this way:
"'extradition offence' means:
(a)in relation to a country other than Australia - an offence against a law of the country:
(i)for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months; or
(ii)if the offence does not carry a penalty under the law of the country - the conduct constituting which is, under an extradition treaty in relation to the country, required to be treated as an offence for which the surrender of persons is permitted by the country and Australia; or
(b)in relation to Australia or a part of Australia - an offence against a law of Australia, or a law in force in the 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;"
The parties agree that all four offences alleged against Mr Prabowo fall within both paragraphs of this definition. However, they also agree that one of the four offences does not fall, or at least is not shown to fall, within the list of offences contained in Article 2 of the Extradition Treaty between Australia and the Republic of Indonesia made on 22 April 1992. That treaty is a Schedule to the Extradition (Republic of Indonesia) Regulations made by the Governor-General on 20 December 1994 and gazetted ten days later.
Regulation 4 of those regulations declares the Republic of Indonesia to be an extradition country. Regulation 5 provides that the Extradition Act "applies in relation to the Republic of Indonesia subject to the Extradition Treaty" of 22 April 1992.
Article 2 of the Extradition Treaty of 22 April 1992 relevantly provides:
"
Extraditable Offences
Article 2
1.Persons shall be extradited according to the provisions of this Treaty for any act or omission constitting any of the following offences provided the offence is punishable by the laws of both Contracting States by a term of imprisonment of not less than one year or by a more severe penalty:"
There then follow 33 paragraphs which set out offences or groups of offences.
In a reversal of the usual situation, s 11 of the Extradition Act permits regulations to affect the application of the Act itself. Subsection (1) provides:
"(1)The regulations may:
(a)state that this Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country, being a treaty a copy of which is set out in the regulations; or
(b)make provision instead to the effect that this Act applies in relation to a specified extradition country subject to other limitations, conditions, exceptions or qualifications."
On the basis of this provision, counsel for the appellant argue that the definition of "extradition offence" must be read subject to a limitation arising out of the treaty. They say it is not enough that a particular offence falls within the s 5 definition; it must also fall within Article 2 of the Treaty. Counsel contend that the magistrate has an obligation to determine the offence or offences, if any, in respect of which the person is eligible for surrender. In carrying out that task, they say, the magistrate must have regard to any limitation on the application of the Act imposed by the regulations in order to give effect to the terms of the treaty.
A major difficulty with this argument is that it overlooks subs (6) of s 11. That subsection relevantly provides:
"(6)For the purpose of determining under subsection 19(1) whether a person is eligible for surrender in relation to an extradition offence for which surrender of the person is sought by an extradition country, no limitation, condition, qualification or exception otherwise applicable under this section ... has the effect of requiring or permitting a magistrate to be satisfied of any matter other than a matter set out in paragraph 19(2)(a), (b),(c) or (d)."
Subsection (6) is directed to the magistrate's task, under s 19(1), of determining whether the person is eligible for surrender in relation to the extradition offence or offences for which surrender is sought. In relation to Mr Prabowo, that was Mr Cleary's task. The subsection envisages the existence of a "limitation, condition, qualification or exception otherwise applicable under this section"; that is, imposed through subs (1). Because of the terms of the Australia-Indonesia treaty, that is this case. But the subsection goes on to provide that no such limitation etc requires or permits the magistrate to be satisfied of any matter other than a matter set out in para (a), (b), (c) or (d) of s 19(2). In other words, the magistrate's inquiry is limited to the topics specified in those four paragraphs.
Paragraph (c) requires the magistrate to be satisfied that, if the relevant conduct had taken place in the part of Australia where the proceedings are being conducted, it "would have constituted an extradition offence in relation to that part of Australia". This means that the conduct must meet para (b) of the s 5 definition of "extradition offence". But nothing in paras (a), (b), (c) or (d) of s 19(2) requires the magistrate to determine whether the conduct meets para (a) of the s 5 definition; that is, criminality under the law of the Requesting State. As the Full Court said in Zoeller, that matter is concluded by the s 19(3)(c)(i) document. Still less is the magistrate required to determine whether the conduct amounts to an offence that is specified in any extradition treaty.
This conclusion does not mean that a limitation imposed by an extradition treaty is unimportant. Section 11(1) allows the Act to be made applicable to a specified extradition treaty subject to the limitations etc necessary to give effect to a bilateral treaty. Where this course is taken, the limitations etc apply. However, with the exception of limitations concerning documents - see para (b) of s 19(2) - those limitations are not the concern of the magistrate. They are the concern of the Attorney General. In particular, where the effect of a treaty is to limit the offences in respect of which Australia has agreed to grant extradition, this will be a limitation having the effect that surrender of the person in relation to some other offence may be refused. The person could only be surrendered for extradition in relation to that offence if the Attorney General made a positive determination that "nevertheless surrender of the person in relation to the offence should not be refused": see s 22(3)(e)(iv) of the Act. It may arguably also arise when the discretionary power conferred by s 16 is exercised by the Attorney General, though it is unnecessary to express a concluded view on this matter.
We agree with counsel that the result is to place a major responsibility on the Attorney General, rather than the courts. But this is the scheme of the current legislation, as vividly illustrated by the recent Full Court decision in Papazoglou v The Republic of the Phillipines (17 April 1997, not yet reported).
Orders
Both the appellant's points fail. The appropriate course is to order that the appeal be dismissed. The appellant should pay the costs of the first respondent, the Republic of Indonesia, which appeared by counsel to contest the appeal. No order should be made in respect of the second respondent, Mr Cleary, who took no part in the appeal.
I certify that this and the preceding fifteen (15) pages
are a true copy of the Reasons for Judgment
of the Court.
Associate:
Dated: 20 May 1997
APPEARANCES
Counsel for the Applicant: N Williams and T Reilly
Solicitors for the Applicant: Jeffreys & Associates
Counsel for the Respondent: T Game SC
Solicitors for the Respondent: Commonwealth Director of Public Prosecutions
Date of hearing: 12 May 1997
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