Prabowo v Republic of Indonesia
[1995] FCA 1030
•15 DECEMBER 1995
CATCHWORDS
EXTRADITION - whether documents supporting extradition application "duly authenticated" - seals and stamps on documents not translated - s19 Extradition Act 1988 (Cth) - whether deficiencies in supporting documents a "minor matter" - s19(1) Extradition Act.
EXTRADITION - whether police colonel an "officer" for purpose of s19(7)(a) Extradition Act 1988 - whether the ejusdem generis rule applies to interpretation of s19(7).
EXTRADITION - whether double criminality requirement satisfied.
Extradition Act 1988 (Cth): ss19, 21, 22,
Extradition Act (1870-1932) Imp: s15
Crimes Act 1900 (NSW): ss158, 175
Zoeller v Federal Republic of Germany (1933) 23 FCR 282; distinguished
Ex parte Bennett; Re Cunningham (1966) 68 SR (NSW) 15; considered
R v Bow Street Magistrates Court; Ex parte Vanderholst (1986) 83 Cr. App. R. 114; discussed
Federal Republic of Germany v Haddad (1990) 21 FCR 496; discussed
SUGAGIO LAGAIDA PRABOWO v REPUBLIC OF INDONESIA & ORS
NG622 of 1995
HILL J
SYDNEY
15 DECEMBER 1995
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No NG662 of 1995
)
GENERAL DIVISION )
BETWEEN:SUBAGIO LAGAIDA PRABOWO
Applicant
AND:REPUBLIC OF INDONESIA
First Respondent
THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
Second Respondent
RONALD BRUCE GENTLE
Third Respondent
CORAM: HILL J
PLACE: SYDNEY
DATED: 15 DECEMBER 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
The applicant to bring in Short Minutes of Order reflecting these reasons on a date to be agreed with counsel.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No NG662 of 1995
)
GENERAL DIVISION )
BETWEEN:SUBAGIO LAGAIDA PRABOWO
Applicant
AND:REPUBLIC OF INDONESIA
First Respondent
THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
Second Respondent
RONALD BRUCE GENTLE
Third Respondent
CORAM: HILL J
PLACE: SYDNEY
DATED: 15 DECEMBER 1995
REASONS FOR JUDGMENT
On 16 August 1995 Mr Gentle, the third respondent, a Magistrate, determined that the applicant was eligible for surrender to the Republic of Indonesia in relation to four offences found by him to be "extradition offences" within the meaning of s19(9) of the Extradition Act 1988 (Cth) ("the Act"). In the result Mr Gentle committed the applicant by warrant to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under s22(5) of the Act.
In accordance with s21(1) of the Act, the applicant applied to this Court to review the learned Magistrate's determination. Mr Gentle submitted to any order the Court might make, save as to costs, and took no part in the proceedings. In addition, the applicant relied on s39B of the Judiciary Act 1903 (Cth) in seeking an order against the Attorney-General, the second respondent, being an officer of the Commonwealth, restraining him from issuing a surrender warrant or temporary surrender warrant under s23 of the Act. As there is no doubt that the Court's jurisdiction in the matter was enlivened by the application brought under s21(1) of the Act and as no separate submissions were made relying upon the Judiciary Act, it will be unnecessary to consider the application of s39B in the present circumstances.
THE STATUTORY BACKGROUND
The manner of operation of the Act is discussed in some detail in the joint judgment of Brennan CJ, Dawson and McHugh JJ in Kainhofer v The Republic of Austria (unreported, High Court of Australia, 30 November 1995) at 1-8. That relieves me of the need to outline the statutory scheme.
Pursuant to s19(2) of the Act it is a condition precedent to the eligibility of a person to be surrendered in relation to an extradition offence that there be produced to the Magistrate "the supporting documents". It is also necessary that the Magistrate be satisfied that if the conduct alleged to constitute an offence in the extradition country had taken place in Australia it would have constituted an extradition offence in relation to that part of Australia in which the extradition proceedings were being conducted, ie in the present case, New South Wales (the so-called "double criminality" test).
The expression "supporting documents" is defined in s19(3), relevantly, to mean:
"(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;
...
(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."
A duly authenticated document is, by force of s19(6), admissible in the proceedings. Due authentication is dealt with by s19(7) which is relevantly in the following terms:
"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."
Section 11 of the Act authorises the making of regulations (even to the extent that the regulations may modify the legislation which authorises them) where it is necessary to give effect to a bilateral extradition treaty. For present purposes the relevant regulations are to be found in Statutory Rules 1994 Number 441 under the heading "Extradition (Republic of Indonesia) Regulations". There are scheduled to those Regulations the provisions of the Extradition Treaty between Australia and the Republic of Indonesia. The Regulations make it clear that for there to be an extraditable offence under that Treaty the offence must be punishable by imprisonment for a term of not less than one year and be for a category of offence referred to in Article 2. Relevantly the offences include:
"Stealing; embezzlement; fraudulent conversion; fraudulent false accounting; obtaining property, money, valuable securities or credit by false pretences or other form of deception; receiving stolen property, any offence involving fraud."
Article 11 of the Regulations requires that all documents submitted in support of a request for extradition be authenticated in accordance with Article 13. Article 13 is in slightly different form to s19(7). It reads as follows:
"A document is authenticated for the purpose of this Treaty, if:
(a)it purports to be signed or certified by a Judge, Magistrate or other competent authority in or of the Requesting State; and
(b)it is sealed with the official seal of the Requesting State or of a Minister of State, or of a Department or Ministry of the Requesting State."
Any apparent conflict between the treaty and the provisions of s19(7) would seem to be overcome by the provisions of the Extradition Amendment Act 1990, s5 which inserted into s19 the following new subsection:
"7(A) Subsection (7) has effect in spite of any limitation, condition, exception or qualification under subsections 11(1), (1A) or (3)."
The consequence of s19(7A) is that the provisions of s19(7) prevail over anything inconsistent in the treaty.
When the matter came before the Magistrate, counsel for the Republic of Indonesia sought to tender, as being duly authenticated, the documents referred to in ss19(3)(a) and 19(3)(c). Objection was taken to them on the ground that they were not duly authenticated. To understand the objection and what thereafter happened, it is necessary to describe the documents.
Two sets of documents were sought to be tendered. Each set was bound together with yellow ribbon, across which there was a red wax seal, partly obliterated, on which there were words in the Indonesian language. One set of the document was completely in the Indonesian language. The other set of documents was in the English language and, presumably, was a translation of the documents in the Indonesian language.
On the front page of the English language version was a certification by a Mr Machrany, Director of Criminal Affairs, Directorate-General for Legal Affairs, Ministry of Justice of the Republic of Indonesia, certifying that the documents annexed were tendered in support of the request for the extradition of the applicant. There appeared, next to Mr Machrany's signature, a stamped seal in the Indonesian language containing words which appear to be identical to the words embossed on the wax seal.
The Indonesian version contained similar typed words, but in the Indonesian language. Again the signature of Mr Machrany and the Indonesian stamped seal appear on the front page.
Inside the English language version each page of the documents, which included the arrest warrant and a statement of the offences said to have been committed by the applicant, and details of Indonesian law, was signed by a person purporting to be a police colonel and the Chief of Interpol Department, whose signature was accompanied by a stamped seal, again in the Indonesian language. For convenience, I will refer to these seals as the "bridge seals" since they took a form somewhat resembling the Sydney Harbour Bridge.
The documents in the Indonesian language contained similar signatures and seals.
THE OBJECTION TAKEN BEFORE THE MAGISTRATE
Two objections were taken before the Magistrate. First, it was said that the documents were not validly authenticated because they did not purport to be signed or certified to by a "judge, magistrate or officer". It was said that the word "officer" should be read as meaning a judicial officer and that Mr Machrany did not purport to be a judicial officer. The second objection taken was that the seal affixed to both versions, and whether that seal be taken as the wax imprint or the stamped imprint, contained words upon it in the Indonesian language and not in the English language.
The learned Magistrate heard arguments on these matters. His Worship expressed the view that authentication need not be by a judicial officer and acceded then to a request by counsel for the Republic of Indonesia for a short adjournment "so that the translation of the seal on the front page of the one bundle of documents can be obtained and sent through the proper channels from the Indonesian Government." The learned Magistrate suggested to counsel for the Republic that each of the bridge stamps appearing on each page of the bundle of documents should also be translated.
That request for adjournment was opposed on the basis that there had been more than adequate time for the Republic of Indonesia to prepare for the conduct of the proceedings. Reference was made before the Magistrate to the provisions of s19(4) of the Act, which is in the following terms:
"(4)Where, in the proceedings:
(a)a document or documents containing a deficiency or deficiencies of relevance to the proceedings is or are produced; and
(b)the magistrate considers the deficiency or deficiencies to be of a minor nature;
the magistrate shall adjourn the proceedings for such period as the magistrate considers reasonable to allow the deficiency or deficiencies to be remedied."
It was submitted that, in the present case, the deficiencies pointed out were not of a minor nature. However, an adjournment was granted, presumably on the basis that the learned Magistrate was of the view, contrary to the submissions for counsel for the applicant, that the deficiency was indeed of a minor nature.
When the matter resumed counsel sought to tender the English language version. There now appeared on the front page of it, in black ink, the words "Translation of red seal": "Directorate-General for Legal Affairs, Ministry of Justice of the Republic of Indonesia". Underneath that, also in ink, was the following notation:
"I, Indra Kesuma Oesman, Head of the Consular Section of the Embassy of the Republic of Indonesia, hereby certify that the Above translation of `Directorate-General for Legal Affairs, Ministry of Justice of the Republic of Indonesia' is a true and correct translation of the red seal appearing above."
That notation was followed by the signature of a Ms Oesman, over which appeared a blue inked stamp with a design in the middle and words around the seal, again in the Indonesian language other than that the word "Canberra" appeared on the seal.
There were further words written on the page which repeated the translation. These further words were again followed by the signature of Ms Oesman as First Secretary, with the seal stamped over that signature. Again that seal contained words in the Indonesian language as well as the word "Canberra".
The tender was again objected to in that there were still parts of the purported English translation which were in the Indonesian language. Counsel referred to the seals. The reference was adequate to refer both to the seals on the front page as well as to the bridge seals.
It is perhaps fair to say that counsel for the Republic of Indonesia and perhaps the learned Magistrate may well have taken the objection to relate only to the bridge seals. The Magistrate indicated that evidence could be called as to the translation. Accordingly, a translator was sworn and shown the bridge seals. When asked to translate the words appearing on the seal, the translator said they were "The Secretariat of the NCB Interpol". The word "Staf" appeared in the middle of the seal. The translator had some difficulty translating this word but thought it might be borrowed from
the English word "staff". Alternatively, the translator said it could be an abbreviation.
For whatever reason the interpreter was not asked to translate the stamped seal impressed over Ms Oesman's signature on the first page of the documents.
Counsel for the applicant continued to press the objection. Ultimately the learned Magistrate accepted the tender.
THE APPLICANT'S SUBMISSIONS
For the applicant it was submitted that the Magistrate's decision should be set aside on four grounds. These were as follows:
The documents were not properly authenticated because they had not been certified to by a person who was a judge, magistrate or officer in or of the extradition country but rather by an administrative official.
No relevant stamp purporting to be a seal had been translated into English.
The Magistrate should not have granted an adjournment since the deficiency that appeared on the documents was other than a minor one.
In respect of two of the offences alleged against the applicant as being extradition offences, these did not satisfy the double criminality test set out in s19(2)(c).
I turn now to deal with each of the submissions.
WHO IS AN OFFICER: S19(7)(a) OF THE ACT?
The short submission made on behalf of the applicant was that the word "officer" in s19(7)(a) was to be read ejusdem generis with the words "judge and magistrate" which appear before it so that the word "officer" should be read down so as to extend only to a judicial officer. In support of the construction two matters were relied on, the one historical the other contextual.
A summary of extradition law from a historical point of view is to be found in the judgment of the Full Court of this Court in Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 297-300. It suffices here to say that prior to the 1988 Act a hearing before a Magistrate took place to determine whether there was evidence before the Magistrate which would, if the Act or omission constituting the crime had taken place in the jurisdiction, have justified the trial of that person. The procedure was somewhat analogous to a committal and the Magistrate was required to determine on the facts adduced whether there was a prima facie case.
A consequence of the 1988 Act, subject to the terms of any particular extradition treaty, was that it was no longer necessary for there to be a quasi-committal proceeding to determine whether there was the necessary prima facie case. The present position is summarised in Zoeller in the following terms (at 299):
"Subject to the provisions of s11, therefore, the clear legislative scheme appearing from s19 is that the magistrate is charged with the task of determining whether in his opinion the double criminality requirement of s19(2)(9c) is satisfied, and to put it briefly and perhaps loosely, that there is no extradition objection as defined in s7 (see s19(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 (s19(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."
Thus the "supporting documents" to which s19(2) refers have an especial significance, over and above the documents that, before the 1988 Act, were to be put before the Magistrate. The warrant proves the fact of commission of a foreign crime. The facts relevant to that crime are proved by the duly authenticated statement under s19(c)(3). The fact that the offence is an extraditable offence is proved by the s19(3)(c)(1) statement. Thus, as the Full Court in Zoeller said (at 300):
"All the magistrate is required to do is, by reference to Australian law, to determine whether the conduct referred to in the s19(3)(c)(ii) statement is an offence under the law of a State or Territory of Australia or Commonwealth law."
From this history counsel for the applicant sought to elicit a conclusion that it was the legislative intention that the supporting documents be authenticated by a certificate or signature of a judicial officer, being either a judge, a magistrate or other judicial officer. Such a certification provides, so it is said, greater certainty that the matters alleged against a person facing extradition have been properly investigated now that there is no procedure analogous to a committal.
The contextual argument seeks to draw assistance from the reference to "officer of the Government" in s19(7)(i) and the terms of s19(7)(ii). It is said that when the legislation intends to use "officer" in the sense of administrative officer or officer of the Government it does so specifically. To limit the word "officer" to judicial officer then brings about the need for dual authentication, (a) authentication in the form of signing or certification by a judicial officer on the one hand (s19(7)(a)) and (b) further authentication by the Government or an officer of the Government on the other hand (s19(7)(i)).
The Explanatory Memorandum to the 1988 Act affords no assistance in the resolution of the question.
The goal of statutory construction is to ascertain the meaning of words used by Parliament in the context in which those words are used, for it is only thus that a Court can ascertain Parliament's intention: cf Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1980-81) 147 CLR 297 at 304 per Gibbs CJ and at 319-321 per Mason and Wilson JJ.
As is pointed out in the passage last cited, rules of statutory interpretation have been formulated to aid the task of construction, but these rules are not rules of law but rather rules of commonsense.
The rule that the meaning of a word is to be derived by reference to its context, sometimes identified by its Latin tag noscitur a sociis, is so often employed that it is scarcely noticed as a rule in its own right. Words are not islands. They stand not alone but are incorporated in sentences and paragraphs to express ideas. The present is a good example.
The word "officer" can have a very wide meaning. It may extend to cover any person who holds any office at all, private or public. An auditor is an officer of a company; a solicitor an officer of the court; a trustee was held to be the holder of an office for the purposes of an estate duty exemption in Public Trustee v Inland Revenue Commissioners [1960] AC 398, but not an officer for the purposes of company law: Cornell v Hay LR 8 CP 328.
The very context of extradition legislation, involving as it does public law, would exclude from consideration persons holding private offices such as trustees and company directors. It may thus readily be accepted, at the very least, that a person will not be an officer for the purposes of the Act unless holding a public, rather than a private, office.
The rule that the width of a word of general application may be limited by an enumeration of words of greater specificity which precede it, described by its Latin tag as the ejusdem generis rule, requires more caution in its application. Clearly it can only apply where there is to be found in the statute an indication of the relevant genus. It will be easier to find a genus the more items there are which have been enumerated. There could be no scope for the application of the rule, for example, where only one word appeared before the general expression: see Pearce & Geddes: Statutory Interpretation in Australia, 3rd Ed, at para4.18 and cases there referred to.
Often it will be easier to apply the rule where the word "other" appears prior to the word to be interpreted. For example, in Brown v Patch (1899) 1 QB 892 at 898 the word "place" in the collocation "house office room or other place" had to be interpreted ejusdem generis with the words which preceded it. On the other hand the rule may nevertheless be attracted in some cases, notwithstanding that the word "other" has not been used: Brownsea Haven Properties Ltd v Poole Corporation [1958] 1 Ch D 574.
I do not obtain the assistance from the language in s19(7)(ii) which counsel for the applicant suggests. I can find nothing in the context which leads to the conclusion that signature or certification has to be by a judicial officer and that some other step must then be taken by an administrative officer. It is true that the documents must be certified to or signed by a relevant officer of the extradition country, if not by a judge or magistrate. Thereafter, however, there are two alternative requirements by way of authentication. First, authentication may take the form of an oath or affirmation of a witness. That witness could be anyone, a judicial officer, an administrative officer, an officer holder or no office holder at all. It is only in the second alternative case where a seal is affixed that there is the requirement that the seal be of a specified kind or from a specified source. Thus in the first alternative there need be no administrative intervention at all, provided that the document is signed or certified to by a judge and is authenticated by the oath or affirmation of a witness. The submission that there is a need for both judicial and administrative authentication can not be accepted.
The words in the present legislation are not new. The Extradition Act 1870-1932 (Imp) was part of the law in force in Australia as a result, inter alia, of the Commonwealth Extradition Act 1933. Under the Imperial Act foreign warrants and depositions taken in the foreign state had to be duly authenticated. Section 15 of the Imperial Act provided as follows:
"1.If the warrant purports to be signed by a judge, magistrate or officer of the foreign State where the same was issued;
2.If the depositions or statements or the copies thereof purport to be certified under the hand of a judge, magistrate or officer of the foreign State where the same were take to be original depositions ... and ...
if in every case the warrants, depositions, statements, copies, certificates and judicial documents (as the case may be) are authenticated by oath of some witness or by being sealed with the official seal of the minister of justice, or some other minister of state."
It was in this form that the mode of authentication was considered by the Court of Appeal in New South Wales in Ex parte Bennett; Re Cunningham (1966) 68 SR (NSW) 15. In that case certificates appeared on a number of documents. Some were judicial. One, however, was a certificate of the United States Attorney-General with a seal of the Department of Justice. The Court of Appeal held there to have been due authentication of all the documents and thus admissibility of them. The dispute in that case lay not in the character of the officer (judicial or non-judicial) certifying, but in whether there was a requirement that there be additional independent proof that the signatory was a judge or officer. The matter presently in dispute was not considered. Nevertheless there is nothing in the judgment that suggests that the officer in question be a judicial rather than administrative officer. On the contrary, their Honours regarded the Attorney-General to be an "officer". That clearly appears from the following passage (at 23):
"The warrant in each case purports to be signed by an officer of the foreign State within the meaning of condition (1) in s15 and furthermore the second requirement, namely `or by being sealed with the official seal of the Minister of Justice or some other Minister of State' is also satisfied. It is to be observed that no technique is laid down by which the seal of the Minister must be affixed, and furthermore there is no requirement otherwise that a seal in these circumstances must be physically placed on the document itself which constitutes the warrant. Indeed, as is well known, seals on documents in former times were
customary appended or hung to the formal document by tape or other means. In the present case the requisite seal duly appears on the first or covering document of a bundle which are physically integrated and we think this is sufficient to satisfy the requirements of s15. ... We consider it to be immaterial that the Attorney-General, when affixing the seal on the front certificate, recited that he had caused the seal to be affixed in witness of his certificate relating to the appointment of a District Court judge. The fact is that the seal appears on one of the pages of an integrated bundle of documents which includes the warrant and this in our opinion is sufficient.
The warrant therefore has been authenticated both because it purports to be signed by an officer of the foreign State and because it has been sealed with the official seal of the Minister."
A similar view has been taken in the United Kingdom. In R v Bow Street Magistrates Court; Ex parte Vanderholst (1986) 83 Ct. App. R. 114. It was argued before the Queens Bench Division, inter alia, that a foreign warrant was inadmissible because it purported to be signed only by a prosecutor and not by a judicial officer. That case concerned the extradition treaty between the United Kingdom and the Netherlands which provided for signature or certification as the case may be by a judge, magistrate or officer of the Netherlands. In rejecting the argument, Lloyd LJ, with whom Tudor Evans J agreed, said, somewhat briefly (at 126):
"There is nothing in the Act or the Treaty which requires the warrant to be signed by a judge or magistrate. As for authentication, it is sufficient for the
purposes of s15(1) of the Act and Article XI of the Treaty if the warrant purports to be signed by a Judge, Magistrate or other officer of the Netherlands. I see no reason to read `other officer' as meaning other judicial officer. The Public Prosecutor is plainly an officer of the Netherlands. The document dated February 5 purports to be a warrant. It authorises the applicant's arrest. It is authenticated by an Officer of the Netherlands. In my view it is a `warrant' for the purposes of the Act and was admissible in evidence."
It might be noted that the word "other" does not appear in Article XI of the Treaty or s15(1) of the Extradition Act 1870 and that to the extent the judgement suggests otherwise it is incorrect.
A moment's reflection would suggest why it would often be inappropriate for a judicial officer to sign or certify. Under the current legislation, a warrant may be sought for the extradition of a person not only where that person has in fact been convicted of an offence but also where the person has merely been charged with an offence. Where there has been a conviction, no doubt one might expect a judicial officer to record the fact of conviction and details of the offence. Where, however, the matter has not reached the stage of conviction, it is difficult to see what reason there would be as a matter of policy in requiring signature by a judicial officer as against, for example, signature by a senior police officer who, in many case, would be responsible for the laying of a charge or the issue of a warrant.
I do not think that the change in significance from the brief of papers presented on a quasi-committal hearing to the more formal proceeding in the 1988 Act requires a contrary conclusion. Essentially the 1988 legislation has repeated the requirements for authentication which have existed since 1870, namely the signature of a judge, magistrate or officer. There is no reason to think that Parliament in 1988 intended to further restrict the category of officers entitled to sign or certify to judicial officers. In saying this I appreciate that there will be many officers whose office holdings might be inappropriate for signature or certification. For example, a harbour master might be an officer but not ordinarily be thought to have been an officer of the kind appropriate to sign or certify the supporting documents required for extradition. 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. There is no reason to believe, in the present case, that Parliament's intention has in any way been subverted by a signature or certification by the Director of Criminal Affairs in the Ministry of Justice.
TRANSLATION OF THE SEALS
There is nothing in the Act itself which requires documents which are sought to be tendered as supporting documents to be in the English language. However, so far as the documents themselves are concerned, if they are to be acted upon it is obvious enough that they must be able to be understood by the Magistrate and all parties. No doubt it is for this reason that Article 11(4) requires that documents submitted in support of a request for extradition be accompanied by a translation into the language of the requested State.
Section 19(7), so far as is relevant, requires authentication to "purport" to be by the use of a seal which is an official or public seal. Whether the seal purports to be a seal of a particular kind must appear on its face. It is hard to know how a document could purport to be sealed with an official or public seal if one could not read the material on the seal. Put simply therefore, for an instrument to purport to be sealed by a public seal of a particular kind it will be necessary either that the seal disclose in English what it purports to be or that some person translate into English the words on the seal again so that it can be seen what the seal purports to be.
Because the issue really turns on the word "purport", it is probably unnecessary to refer to case law involving translation of supporting documents, a problem which has now twice occupied this Court. However, that case law is supportative. In Haddad v Larcombe (1989) 42 A Crim R 139 there had been admitted into evidence before the Magistrate an English language translation of the German supporting documents, the translation not being verified on oath. The English language documents bore the inscription "Certified Translation" and were stamped with the seal of a person, presumably a translator, in Stuttgart. A second bundle also admitted into evidence was in German, bearing a seal upon which the words "Stattsanwaltschaft Stuttgart" appeared. There was no translation of these words at all.
Wilcox J set aside the Magistrate's decision, holding that neither of the two bundles of documents were admissible. As his Honour said, in the case of one of them there was no authentication at all and in the case of the other there was merely an untranslated certificate and without a knowledge of German it was impossible to determine whether that certificate itself complied with s19(7).
The case subsequently went on appeal to a Full Court of this Court. It is reported as Federal Republic of Germany v Haddad (1990) 21 FCR 496. The appeal was dismissed in a short judgment. At the appeal, however, it was conceded that the provisions of s19(7) had not been complied with. Nevertheless, the Full Court (Pincus, Foster and von Doussa JJ) made some comments concerning s19(7). After setting out the facts the substance of his Honour's judgment and some comments from the Full Court's judgment in Zoeller, to which I shall shortly come, their Honours said (at 498-9):
"A person familiar with the German language might well have understood, as the learned Magistrate apparently did, that the authentication was intended to be constituted only by one of the seals and that the rest of the writing on the page and the other seal were irrelevant to the question of authentication. However, we are of the opinion that, wholly untranslated as it was, the last page was simply inadmissible and that the Magistrate was in error in holding that one of the seals on that page satisfied s19(7)(b) partially quoted above and holding, by implication, that the rest of it was irrelevant. It was not a proper course, in our view, to speculate as to what was the effect of any of the material on the last page of Ex 3. We have, in arriving at this conclusion, followed and somewhat extended the statement of principle of the Court in Zoeller's case; we act on the view that material placed before the Court to satisfy the requirements of s19(7)(b) should not be received, if written in a language other than English, unless its English meaning is proved or admitted."
In Zoeller the Federal Republic of Germany had sought to tender two bundles of documents, each taped together and sealed with what appeared to be seals of courts in Germany. The first bundle of documents contained what appeared to be the warrant in the German language and bound to it what was said to be a certified translation into English. The translation into English was not sealed or signed, but contained a certificate by someone who was said to be a sworn translator. The second bundle of documents contained two single documents, one in German certified and sealed, and the other again purporting to be a translation. The point taken was whether the documents sought to be tendered qualified as supporting documents as defined in s19(3). It was held that the German version satisfied the requirements of ss19(3)(a) and (c), notwithstanding that the English translation did not, and that there was nothing in s19 which required the supporting documents to be in the English language.
A question then arose as to the translation. That is not the case in the present proceedings. In the course of its judgment the Full Court (Lockhart, Gummow and Hill JJ) referred to Haddad and especially a comment made by Wilcox J in that case, that s19 constituted a code of authenticity. The Court said (at 289-90):
"Thus, whilst it is true that a document complying with s19(7) will by force of that section be admissible, it does not follow that evidence could not be adduced by calling a qualified translator that a document being a supporting document as defined had a particular meaning or that words in a foreign language constituted a purported certification for the purpose of sub(7). The appellant did not submit in reliance upon Haddad that the translation itself was required to be authenticated in accordance with s19(7) and in our opinion nothing in s19 compels one to that conclusion. What was submitted was that in the absence of such an authentication a translation of the supporting document (hereafter referred to as `the warrant'
unless the context otherwise requires) was admissible only if given on oath by a qualified translator who was available to be cross-examined."
The Court then expressed the view that natural justice required that a Magistrate could not act upon his or her own translation or material tendered in a foreign language. The Court said (at 290):
"While a document duly authenticated under s19(7) is admissible in evidence it can only be acted upon if it is understood. For a tribunal to act upon the document, applying its own understanding of the foreign language uncommunicated to the parties would involve an abuse of natural justice. It may be that there was a time when French and Latin were part of the legal language of England so that evidence as to the meaning of words expressed in these languages was not required and that the meaning of the words lay in the bosom of the judge. But that is not now, and never was the situation in Australia. If a document is sought to be tendered in a foreign language, and the document is objected to, evidence of the meaning of the document must be given...".
In the circumstances of that case, however, the Full Court was of the view that the application for review should be dismissed because the question of the admissibility of the translation had not been raised before the Magistrate but rather the translation had been admitted in evidence without objection. That is not the case here.
Zoeller is not directly in point. In that case, apparently, the German version satisfied the requirements of ss19(3)(a) and 19(3)(c) in that the appropriate signature and authentication appeared. Thus the condition precedent to the exercise of the Magistrate's jurisdiction was satisfied and the only matter to which objection could be taken was that a translation which had been accepted as correct and as to which there was no objection to the tender was in fact taken into account.
In the present the issue is a different one. Here, the Republic of Indonesia seeks to rely upon an authentication by reference to there being affixed to the document a seal of a particular kind. There is affixed to the document a seal (both a wax and an inked imprint) but the document itself does not enable one to say whether that seal purports to be a seal of the relevant kind so as to constitute an authentication. One could only ascertain that by some form of translation. Hence the documents originally sought to be tendered did not qualify as "supporting documents" because the authentication had not been proven.
The matter was not improved following the adjournment. It is true that there is to be found now a translation on the front page of the document setting out the material that was on the seal. But that translation is no more than the statement of a person purporting to be a translator not given in evidence. Had there appeared a certification and seal in the English language upon the translation then no doubt it would have been admissible under s19(6). The fact, however, that another seal was affixed again in the Indonesian language prevented that course. Thus the only way the translation of the material on the original seal could be admissible was by a translator giving on oath in the Court evidence of the translation. Unfortunately this was not done.
The Republic of Indonesia, appreciating this difficulty, sought then before me to rely upon the bridge seal. That seal, of course, appears on all relevant documents and has been translated. There is, however, a difficulty in relying upon that seal. For s19(7) of the Act to be able to be availed of the seal must purport to be the seal of the extradition country itself, ie Indonesia, or a Minister, Department of State or Department or Officer of the Government of Indonesia. As already indicated, the seal is the seal of the headquarters of the police force of the Republic of Indonesia, being the Secretariat of the NCB Interpol. It does not seem to me that the seal is properly to be described as being the seal of a Department of State or Department or Officer of the Government. If anything it is a seal of a sub-Department or sub-sub-Department of the police, but as such does not qualify within the terms of s19(7): cf English Scottish and Australian Chartered Bank v Brown (1897) 14 WN (NSW) 49. In that case a document bearing the seal of the company's winding up branch of the Supreme Court of Judicature was held not to purport to be the seal of the Court itself.
I might say that if this seems to be an overly technical approach, then so be it. Extradition is a very serious matter and involves the liberty of the subject. Thus strict compliance with the formalities prescribed by Parliament will be essential. It is not as if it would have been difficult to comply in the present case with s19(7). All that needed to have happened was that a translator give evidence on oath as to what the seal purported to be. Once that evidence was given the pre-requisites of s19(7) would have been complied with. What was said by Brennan J in Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 523, although in the context of the construction of extradition laws may be adapted in support of the need for strict compliance here:
"The law of this country is very jealous of any infringement of personal liberty (Cox v Hakes (1890) 15 App.Cas 506 at p.527) and a statute or statutory instrument which purports to impair a right to personal liberty is interpreted, if possible, so as to respect that right ... If a statute is to be construed as making a lawful resident of this country liable to arrest and surrender in custody to a foreign country even though no breach of any law has been committed in this country, no tribunal in this country has jurisdiction to try that person for any breach of law committed elsewhere and no court of this country can ensure that he is brought to trial in the country to which he is surrendered, it is reasonable
to expect that Parliament will express that intention with unmistakable clarity."
It is reasonable to expect that a country seeking to rely upon Australian law to obtain the extradition of a person otherwise lawfully in Australia will comply strictly with the terms of the Act and in particular those relating to authentication. As the Republic of Indonesia has not done so in the present case, the consequence must be that the order of the Magistrate be set aside.
SHOULD THE MAGISTRATE HAVE GRANTED AN ADJOURNMENT?
Section 19(1) requires the Magistrate to conduct the proceedings to determine eligibility for surrender provided that he or she has formed the view, inter alia, that the extradition country has had reasonable time in which to prepare for the conduct of those proceedings. That view, having been formed by the Magistrate, leads to the conclusion that it would, but for sub-sec(4), be a rare case where an adjournment would be granted at the request of the country seeking extradition.
Sub-section (4) permits, however, the Magistrate to adjourn the proceedings where there is a deficiency of relevance to the proceedings which the Magistrate considers to be of a minor nature. The adjournment is to permit the deficiency to be remedied.
The short submission on the part of the applicant was that the deficiency, which was patent it was said on the face of the documents, was other than of a minor nature. It is not appropriate, in the present case, to attempt to differentiate between those discrepancies which are minor on the one hand and those which are not minor on the other. In the present case the deficiency is one of authentication, it is not a deficiency that goes to a matter of substance. In my view, the Magistrate could properly have reached the view that the deficiency was of a minor kind and I would agree with such a classification. Accordingly, in my view, the Magistrate was entitled to adjourn.
THE SUBMISSIONS ON DUAL CRIMINALITY
It is necessary in dealing with this submission to set out in some detail the facts alleged in respect of each of the four offences sought to be relied upon as extradition offences. Two of them, that is to say counts two and three dealing with fraud and forgery, are accepted as being extradition offences. The submission is put only in respect of the remaining two which are headed in the English translation "Embezzlement and Bank Offence", as the case may be. Under the heading "Embezzlement" appears the following:
"Between and including 24th October 1991 and 1st June 1993 SUBAGIO LAGAIDA PRABOWO was a Director of BPR KRIDAHARTA PT, Salatiga which is situated in the town of Salatiga, Central Java.
During this same period SUBAGIO LAGAIDA PRABOWO committed embezzlement contrary to article 372 KUHP (Indonesian Penal Code). As a Director of the BPR KRIDAHARTA PT in Salatiga, he received a total amount of Rp. 459,700,000.00 from ten customers for deposit in the BPR KRIDAHARTA PT.
Details of the deposit are as follows:
a.241091 - Rp. 5,000,000.00
b.291091 - Rp. 5,000,000.00
c.301091 - Rp. 5,000.000.00
d.071191 - Rp. 9,700,000.00
e.240492 - Rp. 205,000,000.00
f.300992 - Rp. 25,000,000.00
g.031092 - Rp. 20,000,000.00
h.081092 - Rp. 25,000,000.00
i.100493 - Rp. 85,000,000.00
j.010693 - Rp. 75,000,000.00
SUBAGIO LAGAIDA PRABOWO took possession and control of the above mention [sic] deposits but failed to deposit or register the deposits at the BPR KRIDAHARTA PT. SUBAGIO LAGAIDA PRABOWO then used those deposits for his own personal gain and interest."
The final offence under the heading "Bank Offence" reads as follows:
"Between and including 19th January 1991 and 3rd June 1993 as a Director of the BPR KRIDAHARTA PT, in Salatiga, Central Java, SUBAGIO LAGAIDA PRABOWO recieved [sic] monies in the amount of approx. 1.2 billion rupiah from customers of the bank as deposits at the bank. SUBAGIO LAGAIDA PRABOWO did not record in the bank bookkeeping and did not report these deposits to the BPR KRIDAHARTA PT as required by Indonesian Banking Law.
This represents an offence against article 49(1b) of the Indonesian Banking Law number 7 of 1992."
Article 49 of the Indonesian law, to which reference is made in the statement of charge, is said to be in the following terms:
"(1)The member of commissioner, council, directors or bank employee who within intent to:
(b)loose [sic] or does not entry in a registration of a book keeping or in a report, or in a document, or in company activity report, in a transaction report or in a bank account.
Being threatened with punishment of a maximum 15 years imprisonment or a maximum fine of ten billion rupiahs."
The short submission is that it is an essential ingredient, both in respect of the embezzlement count and in respect of the so-called bookkeeping count, if there is to be a correspondent Australian offence, that there be an allegation of fraud or intent to defraud. It is said that the facts do not either allege fraud or intent to defraud or disclose facts from which such fraud or intent may be found.
The decision in Zoeller and the cases there referred to give some assistance in determining what must be considered before double criminality is established. As the Court there said (at 294), the requirement is a matter "for practical judgment and assessment, not for over zealousness in discerning deficiencies".
To determine whether the facts alleged would constitute offences under Australian law the Magistrate is to have regard to the statement of facts. Provided that statement of facts or some of them constitute an offence under Australian law, the element of dual criminality will be found.
With respect to the argument I think that the facts stated under the heading of "Embezzlement" are adequate to prove fraud or intention to defraud. There is to be found in the statement that after taking possession and control of the various deposits the applicant not only failed to deposit the amounts but used those amounts for his own personal gain and interest.
The same can not be said of the material under the heading "Bank Offence". The corresponding Australian offence is presumably to be found in either s158 or s175 of the Crimes Act 1900 (NSW). Both were relied upon by the respondent and the learned Magistrate. Both Australian offences would require proof of intent to defraud. No such intent to defraud is stated in the facts under the heading "Bank Offence" nor may it be inferred. All that is said is that the applicant, having received moneys did not record the moneys or report the deposits. It may be that the mere failure to record constitutes an offence under Article 49 of the Indonesian law. There is some difficulty in understanding precisely what Article 49 is supposed to cover, although there is some reference to intent in the context of "loose" or perhaps that should be "lose".
Had it been alleged that the recording was done to enable the moneys to be used for the applicant's personal use, then no doubt an Australian offence would have been made out. Those facts are not alleged.
It is submitted on behalf of the Republic of Indonesia that regard can be had to the other statements of facts from which inferences can be drawn. Even if this might in some cases be possible (and I specifically leave that open) it is not possible here because the dates during which the so-called bank offence is said to have been committed, namely, between 19 January 1991 and 3rd June 1993 differ from the dates in respect of which the other three offences are said to have been committed. Thus it does not at all follow that the facts relevant to any of the other three offences are relevant to the fourth.
For this reason I am of the view that dual criminality would not have been established by the statement of facts under the heading "Bank Offences".
I would, accordingly, set aside the orders made by the Magistrate. As presently advised it seems to me that the appropriate orders that I should make would be to direct the Magistrate to determine that the applicant is not in relation to any of the four extradition offences alleged, eligible for surrender to the Republic of Indonesia and to make the orders stipulated in s19(10) accordingly. I will, however, hear argument at a time convenient to counsel as to the appropriate orders to dispose of the matters in accordance with my reasons. The first respondent shall pay the costs of the applicant.
I certify that this and the
preceding thirty-six (36) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Justice Hill.
Associate:
Date: 15 December 1995
Counsel and Solicitors N Williams with R McHugh
for Applicant: instructed by Jeffreys & Associates
Counsel and Solicitors P Hastings QC with F Backman
for Respondent: instructed by the Commonwealth Department of Public Prosecutions
Date of Hearing: 8 December 1995
Date Judgment Delivered: 15 December 1995
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