Republic of Chile v Rivas

Case •

[2020] NSWLC 9

•

29 October 2020

No judgment structure available for this case.

Local Court


New South Wales

Medium Neutral Citation: Republic of Chile v Rivas [2020] NSWLC 9
Hearing dates: 16 June 2020, 15 July 2019, 13 August 2019
Date of orders: 29 October 2020
Decision date: 29 October 2020
Jurisdiction:Civil
Before: Stewart LCM
Decision:

Pursuant to section 19(2) Extradition Act the Respondent is eligible for surrender; Ancillary orders made per s.19(9)

Catchwords:

Eligibility for extradition – treaty on extradition – function of magistrate – conditions precedent to conducting proceedings – supporting documents – statement of conduct constituting the offence – extradition offence – dual criminality – equivalent conduct – extradition objection

Legislation Cited:

Extradition Act 1988 (Cth)

Cases Cited:

Papazoglou v Republic of Philippines (1997) 144 ALR 42

Republic ofCroatia v Snedden (2010) 241 CLR 461

Timar v Republic of Hungary [1999] FAC 1518

Zoeller v Federal Republic of Germany (1989) 23 FCR 282

Cabal v United Mexican States (No. 3) [2000] FCA 1204

Republic ofCroatia v Snedden (2010) 241 CLR 461

Harris v Attorney-General (Cth) & Anor (1993) 45 FCR 11

Harris v Attorney General (Commonwealth) (1994) 52 FCR 386

Category:Principal judgment
Parties: Republic of Chile (Applicant)
Adriana Elcira Rivas Gonzalez (Respondent)
Representation: T Glover
Counsel for the Republic of Chile (Applicant)
F Santisi
Counsel for the Respondent
Lisa Hemingway, Solicitor
Australian Government Attorney-General's Department (Applicant)
P Tsintilas, Solicitor (Respondent)
File Number(s): 2019/00055222
Publication restriction: Nil

DETERMINATION OF ELIGIBILITY FOR SURRENDER

Application for Extradition Proceedings

  1. The Republic of Chile has applied under section 19(1)(c) of the Extradition Act 1988 (Cth), (‘Extradition Act’) for proceedings to be conducted to determine whether Adriana Elcira Rivas Gonzales (‘the Respondent’) is eligible for surrender to Chile.

  2. Chile is an ‘extradition country’ as defined in section 5 of the Extradition Act and pursuant to regulation 3 of the Extradition (Republic of Chile) Regulations (‘the Regulations’).

  3. Regulation 4 provides that the Extradition Act applies in relation to Chile subject to the Treaty on Extradition between Australia and the Republic of Chile enacted at Canberra on 6 October 1993, which is set out in the Schedule of the Regulations.

Nature of Extradition Proceedings

  1. Pursuant to section 46(1)(a) Extradition Act, the Governor-General of Australia has entered into arrangements with the Governor of New South Wales for the performance of functions of a Magistrate under the Extradition Act. I am satisfied that those arrangements appear in the Commonwealth of Australia Gazette No S 366, dated 30 November 1988.

  2. Section 5 of the Extradition Act defines a Magistrate as a person for whom an arrangement is in force under s. 46.

  3. Pursuant to section 45B(1)(a) and (b) Extradition Act, the function or power conferred upon a Magistrate, is in a personal capacity and not as a court or a member of a court.

Hearing 16 June 2020

  1. The hearing of the application took place on 16 June 2020. This occurred by way of legal argument by each party supported by documents that they relied upon, including written submissions.

  2. Chile produced the following documents:

  1. The original bound and sealed Extradition Request from Chile received by Australia on 6 August 2016, comprising a Spanish bundle and an English bundle (the English bundle being an English translation of the Spanish bundle)

  2. A Section 16 Notice (ie. per section 16 Extradition Act), being a notice given by the Attorney General, the Hon. Christian Porter MP dated 26 October 2018 stating that the extradition request had been received from Chile.

  1. A copy of that material was provided to me for the purpose of considering the application. Copies of the documents had previously been served upon the Respondent.

  2. In addition to those documents, a number of affidavits were relied upon by the Respondent. Some of those affidavits were subsequently not relied upon, and additional affidavits were filed and read. I shall refer to those documents later.

  3. Each party had an opportunity to address me regarding the respective positions of the Applicant and Respondent. The proceedings were then adjourned 27 July 2020 to enable me to consider the issues and give my decision.

Supplementary Evidence 15 July 2020

  1. The matter re-listed before me on 15 July 2020 as the Respondent wanted to provide further evidence. The Applicant took no issue with this, citing Papazoglou v Republic of Philippines (1997) 144 ALR 42 at [60] as authority permitting such approach. I considered it appropriate to allow further evidence to be received in the interests of justice.

  2. The Respondent filed what was described as a ‘full extract of the Amnesty document’. A timetable was set for the Applicant to file a Reply.

  3. The affidavits from the Respondent’s solicitor dated 25 March 2019, 1 April 2019, 17 May 2019, 24 April 2020 were in relation to bail issues. I reminded the lawyer’s for the Respondent that I was not dealing with issues regarding another Magistrate’s earlier decision in relation to bail.

  4. The affidavits of the Respondent dated 16 March 2019, 17 May 2019, and 12 June 2020 appeared to be prepared largely in relation to bail issues and also contained exculpatory remarks or denials by the Respondent.

  5. I also reminded the lawyers for the Respondent of section 19(5) Extradition Act, which provides:

Section 19(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 engage in conduct constituting an extradition offence for which the surrender of the person is sought.”

  1. The Respondent indicated that 4 out of 5 affidavits of the instructing solicitor that had previously been relied upon as at 16 June 2020 were no longer relied upon or pressed. Specifically, the only affidavit of the Respondent’s solicitor possibly relied upon was that of 27 May 2020.

  2. The Respondent sought and was allowed further time to file submissions if they were still relying upon the solicitor’s affidavit dated 27 May 2020. That affidavit cited 21 ‘YouTube’ URL links. No audio or audio/visual copy of that material was provided until 1 July 2020. The affidavit indicated that some of the documents associated with the URL links were in Spanish. I do not speak Spanish and informed the Respondent’s solicitor that I could not consider the content of that affidavit further on the basis of how it was presented.

  3. The Applicant sought time to respond to any further submissions made by the Respondent. The decision date of 27 July was vacated, and the matter adjourned to 13 August 2020.

13 August 2020 - adjournment

  1. Following the mention on 15 July 2020, the Respondent indicated that reliance was placed upon the solicitor’s affidavit of 27 May 2020 as well as affidavits of the respondent dated 16 March 2019 and 12 June 2020.

  2. The Applicant indicated objection to parts of the Respondent’s affidavits of 16 March 2019 and 12 June 2020.

  3. The Applicant also indicated possible objection to the Respondent solicitor’s affidavit of 27 May 2020, and that they were awaiting a further affidavit from the Respondent’s solicitor.

  4. A further affidavit was filed by that solicitor deposed on 4 August 2020 providing a summary of the YouTube URL links referred to in the 27 May 2020 affidavit. I note the last 5 of those links could not be opened by the Respondent’s lawyer.

  5. Due to the timetable not being complied with, the matter was stood over to 29 September 2020, with a further timetable set for the filing of documents.

  6. The fact that the timetable was not complied with is not a criticism. The time that a Magistrate has for determination of matters out of court is limited, and there are often multiple matters with varying degrees of material for consideration.

29 September 2020 – adjournment

  1. Once again there was a delay in the filing of material.

  2. An email from the Respondent’s solicitor was received on 31 August 2020 informing that paragraph 20 of the 4 August 2020 affidavit was not relied upon and that no additional material would be forthcoming.

  3. The matter was adjourned to 29 October 2020 for decision.

Conditions Precedent to Conducting Proceedings per s.19(1) Extradition Act

  1. There are four conditions precedent to the proceedings sought by s.19(1)(c) being conducted.

Section 19(1) Extradition Act

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.

  1. I am satisfied that each of those conditions has been complied with, noting that there was no argument to the contrary. Nevertheless, I shall set out briefly the reasons as to why I am satisfied.

  2. In relation to section 19(1)(a), the Respondent was arrested pursuant to an extradition warrant issued on 5 December 2018 under section 12 Extradition Act by Magistrate L M D Taylor, a Magistrate of the Australian Capital Territory, and subsequently remanded in custody by Magistrate R Williams at Central Local Court (NSW) per section 15(2) Extradition Act.

  3. In relation to section 19(1)(b), a Notice under section 16(1) Extradition Act given by the Commonwealth Attorney General was produced to the Court and a copy annexed to the Applicant’s written submissions.

  4. In relation to section 19(1)(c) Magistrate M Quinn received an application on 27 June 2019 from the Republic of Chile for these proceedings to be conducted.

  5. On that day, in relation to section 19(1)(d) Magistrate Quinn made Orders for the Applicant to file submissions by 1 August 2019 and the Respondent by 29 August 2019.

  6. I will refer to the documents relied upon by each party shortly, but note that the Applicant filed submissions in accordance with the Magistrate’s Orders on 1 August 2019. However, I am not aware of any submissions being filed by the Respondent until 9 June 2020.

  7. Each party filed further documents prior to the hearing date on 16 August 2020. Upon application of the Respondent, I allowed further time for additional evidence to be considered after the hearing date of 16 June 2020. I also allowed each party the opportunity of both filing further submissions and making further submissions, as set out previously. I have now received multiple sets of written submissions on behalf of both the Applicant and the Respondent.

  8. I therefore consider that the person (Respondent) and the extradition country (Chile) have had reasonable time in which to prepare for the conduct of such proceedings.

Eligibility for Surrender – section 19(2) Extradition Act

Section 19(2) Extradition Act

(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.

  1. In relation to the meaning of supporting documents referred to in section 19(2) (a), I must have regard to section 19(3) Extradition Act. [Note: subsection (3)(b) relates to an offence where the person has been convicted and is not relevant to this application]:

Section 19(30 Extradition Act

(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; …….., and

(b) 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.

  1. The legislative provision as to whether a document is duly authenticated is contained in section 19(7) Extradition Act:

Section 19(7) Extradition Act

(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.

  1. The Extradition Request is contained in two bound volumes, one in Spanish and one in English; both sealed over a piece of string passing through all of the documents, with the seal of the Embassy of Chile in Australia; and purported to be signed or certified by an officer of the extradition country.

  2. In the Respondent’s outline of submissions (part 2) filed 9 June 2020, the following appeared at paragraphs 123, 124 and 125:

“Section 19(7)

123. It is unclear on the material who placed the seal on the documents.

124. Was it a Judge, a Minister?

125. If it was the embassy in Australia it raises a real question as to its power to do so.”

  1. Since the Seal applied is that of the Embassy of Chile in Australia, it appears to satisfy the legislative requirements of section 19(7)(b)(i). There is no need to identify ‘who’ placed the Seal on the documents if the document purports to be authenticated by being sealed with an official or public Seal of the extradition country.

  2. I therefore inquired of counsel for the Respondent whether an objection was being raised as I could see no basis for it. Mr Santisi said that the submission was no longer pressed.

  3. I am satisfied the relevant documents are duly authenticated.

  4. In relation to section 19(3)(a), two warrants were issued by Chile for the arrest of the Respondent for the extradition offences. A copy of each warrant is contained in the English translated bundle at pages 82–83, and 83-84 (and in the Spanish bundle at pages 57 and 58).

  5. In relation to section 19(3)(c), a duly authenticated description of the extradition offences is set out on page 329 of the English translation (Spanish bundle page 61):

“OFFENCES FOR WHICH THE EXTRADITION OF ADRIANA ELCIRA RIVAS GONZALEZ IS SOUGHT

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

7.1. Aggravated kidnapping of the victim named Victor Manuel Diza Lopez, in her capacity as a 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, Lincoyan Yalu Berrios Cataldo, Horacio Cepeda Marinkovic, Juan Fernando Ortiz Letelier, Hector 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.”

  1. Further, a duly authenticated copy of the offence provision is set out on pages 86-87 of the English bundle (Spanish bundle from page 60):

“ART 41. He/she who, under no right whatsoever, confined or detained another individual depriving him/her of his/her freedom, shall be punished with minor imprisonment or detention in any of its categories.

The same penalty shall be applied to he/she who may provide a place to carry out the criminal offence.

Should the confinement or detention last longer than ninety days or causes serious damage to the person or the interests of the person confined or detained, the penalty shall be rigorous imprisonment in any of its categories.”

  1. The penalties for the criminal offences for which extradition is requested are set out on pages 329-331 of the English bundle.

  2. In relation to section 19(3)(c)(ii) concerning the requirement of duly authenticated statement of conduct constituting the offences, I am assisted by the Applicant’s first written submissions at pages 9 and 10 setting out the relevant principles, and the reference to section 10(2) Extradition Act as well as relevant case law, which I have extracted below. [footnote numbers adjusted]

[EXTRACTED from pg.9 Applicant’s submissions]

Subparagraph 19(3)(c)(ii): statement of conduct constituting the offence

40. Subsection 10(2) provides that a reference in the Extradition Act to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or alleged to have, been committed.

41. There are a number of established principles regarding the nature and sufficiency of the statement of conduct constituting the offence:

i) First, it must be a statement of the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed, not merely a restatement of the charge in respect of which extradition is sought. [1]

1. Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 297; Griffiths v United States (2005) 143 FCR 182 at 192 [51]

ii) Secondly, the conduct by which an offence has or is alleged to have been committed lies at a level of abstraction between a formal statement of the elements of the offence and an account of the evidence relied on to prove the relevant conduct, on the other. [2]

2. Griffiths v United States of America [2005] 143 FCR 182 at 192 [51], citing Truong v The Queen (2004) 223 CLR 122 at [29]

iii) Thirdly, whether the statement of conduct is to be accepted as a statement setting out the conduct constituting the relevant extradition offences is a “matter for practical judgment and assessment, not for over zealousness in discerning deficiencies”. [3]

3. Zoeller at 294

iv) Fourthly, it is not the case that every conceivable doubt or ambiguity of fact or law, no matter how inconsequential, must be resolved against the country seeking extradition. The test is whether the documents set out the essential elements of each offence for which surrender is sought, clearly identify the provisions of the foreign law creating the offence and the maximum penalty prescribed for a breach, and give particularity to ensure that the requested state and the person whose surrender is sought are left in no doubt as to the basis upon which the requisition is made. [4]

v) Fifthly, 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. Such documents must be read fairly and not perversely. Whether they meet the requirements of the Extradition Act is a matter for practical judgment. [5]

vi) Sixthly, the statement setting out the conduct constituting the offence may consist of a number of documents and it is permissible to have resort to all of the supporting documents to ascertain the relevant conduct. [6]

42. A duly authenticated statement of the conduct constituting the extradition offences is produced in the following sections of the English Bundle:

i) Report dated 14 August 2015 prepared by the Human Rights Programme of the Ministry of Interior and Public Safety (Interior Ministry Minute), at pages 235 to 260;

ii) Chilean Investigations Police Record No. 242 (Chilean Police Report) at pages 260 to 277;

iii) Statement given by Jorgelino Del Carmen Vergara Bravo (First Bravo Statement) at pages 277 to 290;

iv) Statement given by Jorgelino Del Carmen Vergara Bravo (Second Bravo Statement) at pages 290 to 294;

v) Statement given by Juan Hernan Morales Salgado (Salgado Statement) at pages 294 to 305; and

vi) ‘Summary of the conduct alleged against Adriana Elcira Rivas Gonzalez’ and ‘Detailed statement of the alleged conduct constituting the offence’ at pages 333 to 340.

4. Timar v Republic of Hungary [1999] FCA 1518 at [64]

5. Timar at [63]

6. Griffiths at 192 [50].

  1. Having read all of the English translated bundle and the ‘Summary of Conduct’ set out from paragraphs 62 to 79 inclusive of the Applicant’s (first) Outline of Submissions, I am satisfied that the summary accurately sets out some of the more salient points that provide an overall context. The summary is taken directly from the Extradition Request English bundle Rather than (unnecessarily) attempt to write a further summary, I will extract it below:

[EXTRACT from pg.14 Applicant’s Submissions]

Summary of conduct [7]

7. References to the Extradition Request are to the English Bundle.

62. The central allegation against the Respondent 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). [8] The Chilean Police describe her as an officer in the Chilean Navy, [9] who was one of the “security personnel” of Lautaro Brigade. [10] 31 It appears that she was also known as “La Chani”.

8. Extradition Request, p 337.

9. Chilean Police Report, p 263.

10. Chilean Police Report, pp 264-265.

DINA’s function and activities

63. The Interior Ministry Minute describes the formation of DINA as follows: [11] 32

11. Interior Ministry Minute, p 65.

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.

64. The ‘Brigada Lautaro’ (or Lautaro Brigade) was created on 1 April 1974. [12] Its initial mission was to provide personal security to the DINA National Director, Juan Manuel Guillermo Contreras Sepúlveda and his family. [13] The Division had its headquarters in premises known as ‘Torre No. 5’ in the center of Santiago. [14] It was commanded by Juan Herńan Morales Salgado. [15]

12. Interior Ministry Minute, p 240.

13. Interior Ministry Minute, p 240.

14. Interior Ministry Minute, p 241.

15. Interior Ministry Minute, p 240; Chilean Police Report, p 261.

Once the base was set up, Salgado restructured Lautaro Brigade into guard personnel, emergency personnel, information search personnel and security personnel. All members of the division performed guard duty and were emergency personnel: Chilean Police Report, p 264.

65. The Respondent 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. [16]

16. Interior Ministry Minute, p 240.

66. In mid-1975, Lautaro Brigade moved its headquarters to premises at 8800 Simón Bolivar, which were commonly known as the “Simón Bolívar Headquarters”. [17] The Respondent is alleged to have moved with Lautaro Brigade from the Torre No 5 premises to the Simón Bolívar Headquarters. [18]

17. Interior Ministry Minute, p 241; Chilean Police Report, p 263.

18. Interior Ministry Minute p 241.

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. [19] 40 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.

19. Chilean Police Report, p 263.

68. The Interior Ministry Minute describes the conduct of DINA personnel at the Simón Bolívar Headquarters as follows: [20]

20. Interior Ministry Minute, pp 241-242.

… 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. (footnote omitted, however see page 242 English bundle)

69. The Chilean Police Report states: [21]

21. Chilean Police Report, pp 267-268.

… 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: [22]

22. Interior Ministry Minute, p 244.

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 Respondent 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. [23]

23. Chilean Police Report, p 267.

It is alleged that the Respondent 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 Respondent 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”. [24]

24. Interior Ministry Minute, p 240.

73. The Respondent denies being a member of Lautaro Brigade, stating that “she performed secretarial and administrative duties”. [25] 46 Nevertheless, the “depositions of all former agents who worked with [the Respondent] are key to identify her as carrying out operational duties and involved in active missions inside and outside the headquarters”. [26]

25. Interior Ministry Minute, p 242.

26. Interior Ministry Minute, p 242.

74. In this respect, the Interior Ministry Minute states: [27]

27. Interior Ministry Minute, pp 242-243.

By way of example, Jorgelino del Carmen Vergara Bravo refers to [the Respondent] 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.”

The Conferencia / Episodes

75. In relation to the Conferencia 1 Episode, the Extradition Request states: [28]

28. Extradition Request, pp 333-334.

(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):50 [29]

29. Salgado Statement, pp 300-303.

[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: [30]

30. Extradition Request, pp 335-336. See also Interior Ministry Minute, pp 247-250

(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 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.

The Respondent’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: [31]

In conclusion, [the Respondent], 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.

79. Accordingly, it appears from the Extradition Request that the Respondent’s criminal responsibility as a perpetrator of the offences is said to arise as a result of the Respondent, at the relevant times:

i) being a DINA agent at the Simón Bolívar Headquarters;

ii) being aware of the function of the Simón Bolívar Headquarters and work performed by DINA agents at the headquarters; and

iii) participating actively in that work.

31. Interior Ministry Minute, pp 259-260.

  1. The description of the Simon Bolivar Headquarters is (page 243-244):

“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.”

  1. Former DINA agent Jorgelino del Carmen Bergera Bravo provided a list of names of DINA agents who were part of the Lautaro Brigade led by Juan Salgado. This list includes the Respondent. He described performing guard duty and that he “would always see detainees coming in, who were transferred mostly by” eight agents whom he named, including the Respondent: see p.252 and 253. It is said that the deposition by Bravo was in the context of the detention and death of Victor Manuel Diaz Lopez, and that the agents named by him relate to those acting at headquarters at that time.

  2. Agent Rosa Hernandez provided a deposition in relation to the death of a former agent of the Lautaro Brigade, and named the Respondent and others as being agents / members of that Brigade, and that all people who worked in security matters were operational officers: see.p.254 and 255.

  3. 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 Respondent 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.

  4. I will deal with the Respondent’s submissions when considering section 19(2)(c), and then deal with the Respondent’s claimed extradition objections.

  5. I am satisfied that the documents contain a statement of conduct constituting the offences alleged against the Respondent, satisfying the requirements of section 19(3)(c)(i) Extradition Act.

  6. In relation to section 19(2)(b), I am satisfied that the documents produced satisfy the legislative requirements, and conform with the obligation referred to in Timar v Republic of Hungary [1999] FAC 1518 at [79]. In other words, per Timar, upon being satisfied that documents set out in section 19(3) have been produced, I am satisfied that section 19(2)(b) has been complied with.

Section 19(2)(c) – Dual Criminality or Equivalent Conduct

(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)…

(b)…

(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

  1. In other words, I must be satisfied that if the alleged conduct or equivalent conduct had taken place in New South Wales at the relevant date, it would have constituted an ‘extradition offence’ in relation to New South Wales. The relevant date is 6 August 2018, being the extradition request was received.

  2. I note that the term ‘extradition offence’ is defined in section 5 Extradition Act: "extradition offence" means:

(a)  in relation to a country other than 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.

  1. The Respondent submits I could not find that the Respondent has committed an offence in Chile, and therefore, there is no need to consider an equivalent offence in Australia, nor could I be satisfied that Ms Rivas committed an equivalent offence in Australia.

  2. Mr Santisi says that the description of offences in the English bundle does not make it clear what it is alleged the Respondent did or did not do. It was submitted that I could not be satisfied that the Respondent was part of DINA. Mr Santisi submits that people were not ‘kidnapped’ – rather, they were ‘arrested’ by government agents (Transcript 16.6.20 pg.14 L46 onwards), and that the act of arrest is lawful, whereas kidnapping is not.

  3. Further, Mr Santisi submits that the lack of detail in the description of offences alleged in Chile means that “it could not be ‘worked out’, not even by inference, what it is that Ms Rivas did” (Transcript 16.6.20 pg.16 L16 onwards). It is said that I could not be satisfied that the agents were part of a criminal group. (Transcript 16.6.20 pg.17 L44 onwards)

  4. In response to those submissions, documents within the English bundle make it clear that the Respondent is said to be a perpetrator or co-perpetrator of aggravated kidnapping. Explanation of those terms is set out at pages 258/259 of the English bundle.

  5. I reject the submission that there needs to be a positive statement that Ms Rivas was part of the decision making apparatus that brought about the detainees ongoing detention.

  6. At page 75 (English bundle), there is discussion that explains the difference between perpetrators and co-perpetrators:

“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.”

  1. As to the distinction attempted to be drawn by the Respondent between ‘arrest’ and ‘detained’, Article 41 (previously cited) refers to elements of the offence of aggravated kidnapping to include ‘detained’ or ‘confined’. The use of the word “arrest” appears to be in the context of unlawful conduct because it was allegedly for an unlawful purpose such as detainment, confinement, torture, and/or murder.

  2. I am not satisfied that there is any merit to the submission in so far as it is suggested that the offences alleged in Chile cannot be made out. I note however that I do not need to decide that point.

  3. I am satisfied that there is sufficient material within the documentation relied upon by the Applicant identifying the role of the Respondent in each of the offences alleged against her. Contrary to submission made for the Respondent, there is information contained in depositions that the Respondent 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.

  4. In Zoellerv Federal Republic of Germany (1989) 23 FCR 282 at [63] , Lockhart, Gummow and Hill JJ described the relevant task as follows:

[63]……..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.”

  1. The broader events involving DINA agents at the Simon Bolivar Headquarters, refer to arrest or kidnapping, detention and confinement, torture and disappearance or murder. The indictments against the Respondent are for aggravated kidnapping (pg.329).

  2. In Zoeller at [62] it was said 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”.

  1. The Extradition Request material relating directly to the Respondent as well as the conduct of DINA agents at the Simon Bolivar Headquarters generally, can therefore be taken into account.

  2. The Applicant correctly suggests that a number of criminal offences are disclosed in the Extradition Request which each are capable of satisfying the legislative requirement of having penalties of more than one year imprisonment.

  3. Chile rely upon the offence of Participate in Criminal Group pursuant to section 93T(1) Crimes Act NSW which provides:

93T Participation in criminal groups

(1) A person who participates in a criminal group is guilty of an offence if the person

(a) knows, or ought reasonably to know, that it is a criminal group, and

(b) knows, or ought reasonably to know, that his or her participation in that group contributes to the occurrence of any criminal activity.

: Maximum penalty--Imprisonment for 5 years.

  1. The meaning of ‘criminal group’ is set out at section 93S Crimes Act:

93S Definitions

(1) In this Division

"criminal group" means a group of 3 or more people who have as their objective or one of their objectives--

(a) obtaining material benefits from conduct that constitutes a serious indictable offence, or

(b) obtaining material benefits from conduct engaged in outside New South Wales (including outside Australia) that, if it occurred in New South Wales, would constitute a serious indictable offence, or

(c) committing serious violence offences, or

(d) engaging in conduct outside New South Wales (including outside Australia) that, if it occurred in New South Wales, would constitute a serious violence offence.

……

"serious violence offence" means an offence 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).

(2) A group of people is capable of being a criminal group for the purposes of this Division whether or not--

(a) any of them are subordinates or employees of others, or

(b) only some of the people involved in the group are involved in planning, organising or carrying out any particular activity, or

(c) its membership changes from time to time.

  1. I agree with the submissions by the Applicant 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.

  2. 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).

  3. 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 (the Respondent) was part of the decision making apparatus that brought about their (the detainees) ongoing detention”.

  4. 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.

  5. 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.

  6. Chile further rely upon ancillary liability for crimes against humanity, citing division 268, Subdivision C of the Criminal Code (Commonwealth) which criminalises crimes against humanity.

  7. 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.

  8. Section 11.2(1) Criminal Code states:

“A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.”

  1. 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 Respondent had knowledge of the essential facts and circumstances of those principal offences, and being armed with such knowledge provided intentional assistance or encouragement.

  2. As well as the offences suggested by the Applicant, the offence of Kidnapping (also known as Take and Detain) pursuant to section 86 Crimes Act New South Wales is also readily established as an equivalent offence based on the Extradition Request material.

86 Kidnapping

(1) Basic offence

A person who takes or detains a person, without the person's consent--

(a) with the intention of holding the person to ransom, or

(a1) with the intention of committing a serious indictable offence, or

(b) with the intention of obtaining any other advantage,

is liable to imprisonment for 14 years.

(2) Aggravated offence

A person is guilty of an offence under this subsection if

(a) the person commits an offence under subsection (1) in the company of another person or persons, or

(b) the person commits an offence under subsection (1) and at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim.

A person convicted of an offence under this subsection is liable to imprisonment for 20 years.

(3) Specially aggravated offence

A person is guilty of an offence under this subsection if the person commits an offence under subsection (1)

(a) in the company of another person or persons, and

(b) at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim.

A person convicted of an offence under this subsection is liable to imprisonment for 25 years.

(4) Alternative verdicts If on the trial of a person for an offence under subsection (2) or (3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of a lesser offence under this section, it may find the accused not guilty of the offence charged but guilty of the lesser offence, and the accused is liable to punishment accordingly.

(5) …...

(6) ……

(7) In this section

"…….”

"detaining" a person includes causing the person to remain where he or she is.

"……”

"taking" a person includes causing the person to accompany a person and causing the person to be taken.

  1. The often repeated suggestion in the Respondent’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 Respondent’s submission the arrest was lawful, the subsequent detainment for interrogation, torture and murder was not.

  2. The principle of joint criminal enterprise applies to offences under the NSW Crimes Act. Whether or not joint criminal enterprise exists can be determined by express acts or by inferences.

  3. I am satisfied that the requirement of dual criminality is met as required by section 19(2)(c) Extradition Act.

Respondent’s Extradition Objections –

  1. The legislative reference to extradition objections is set out at s.19(2)(d) and meaning of extradition objection appears at section 7 Extradition Act.

19(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:

(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.

Section 7 - Meaning of extradition objection

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.

Political offence objection – section 7(a) Extradition Act

  1. The Respondent asserts that the extradition offence is a political offence. ‘Political Offence’ is defined in section 5 Extradition Act:

"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; (my emphasis) 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.

  1. 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.

  2. The Applicant notes the exclusionary provision referred to above, and adds that the respondent has adduced no evidence as to the purpose she may or may not have had in carrying out the alleged conduct; and the forced kidnapping, torturing and permanently disappearing of civilians can never be proportionate or reasonable to achieving any political purpose. I agree with the latter submission.

  3. However, in relation to the submission about the respondent not adducing evidence, section 19(5) Extradition Act would preclude me from receiving such evidence if that evidence was to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought.

  4. There is no basis for the objection.

Prohibited Purpose objection – section 7(b) Extradition Act

  1. The Respondent claims an extradition objection on the basis that the real reason for extradition is for the purpose of prosecuting or punishing her on account of her political opinions or for a political offence in relation to the extradition country: [see Respondent’s written submissions Part 2 paragraphs 47 to 54, and 55 to 82].

  2. To the extent that the Respondent relies upon being prosecuted or punished for a political offence, I again note the exclusion set out in Interpretation section 5 Extradition Act regarding ‘Political offence’, as discussed in relation to the section 7(a) objection above.

  3. To the extent the Respondent claims that opinions she has allegedly expressed since arriving in Australia are the cause of Chile now seeking her extradition, I note that Chilean authorities had already commenced prosecution of the Respondent years before she fled Chile.

  4. There is no material in the Extradition Request suggesting that her political views have any association with her alleged involvement in the extradition offences; or led to her prosecution in the past, or caused Chile to now seek her extradition.

  5. It may well be the case that by taking part in documentaries and interviews [see Part 2 submissions paragraph 66] that the Respondent’s location became known, leading to extradition proceedings.

  6. In Cabal v United Mexican States (No. 3) [2000] FCA 1204 at [218], it was said that “a person must show that the reason for the feared persecution is that attribute” ie. political opinion…….”A bare causal connection would not be sufficient to attract Convention protection.”

  7. I am not persuaded at all that there is any basis to this objection, nor am I persuaded that there is a legitimate causal connection between the Respondent’s political opinion, whatever that might be, and the decision to prosecute her.

  8. A number of people were prosecuted for the same or similar offences for which Ms Rivas was initially indicted. Political opinion appears to have played no part in prosecutions that are mentioned in the Extradition Request material.

Prejudice at trial objection – punishment by reason of political opinions – section 7(c) Extradition Act

  1. The Respondent raises an extradition objection on the basis that upon extradition she may be prejudiced at her trial, or punished, detained or restricted in her personal liberty, by reason of her political opinions.

  2. Apart from raising the objection and the respondent’s perceived fears, there is no evidence to support it.

  3. The ‘expert report’ of Chirgwin Abogados dated 25 May 2020 refers to ‘harm of a right to a fair trial’ due to prosecution under the Old Criminal Procedure System, which is ‘currently almost only used to try human rights, Pinochet-era crimes.” However, Mr Abogados’ opinion is not based on the Respondent’s political opinions.

  4. Reference in that report to differing opinions concerning Amnesty Law also has nothing to do with any political opinions of the Respondent. The extradition request material includes a number of judgments from the appeal courts in Chile where amnesty arguments have been unsuccessful with ample reason and explanation given.

  5. In Republic ofCroatia v Snedden (2010) 241 CLR 461 at [69] – [70] the Court said:

“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.”

  1. There is no evidence to support this extradition objection. If the Respondent were to be extradited to Chile, any detention or restriction in movement might be anticipated to occur due to her previous flight from Chile. There is no causal connection between the Respondent’s claim that she may be prejudiced at her trial, or punished, detained or restricted in her personal liberty, and her alleged political opinions.

Military Offence objection – section 7(d) Extradition Act

  1. The wording of section 7(d) is not complicated. I agree with the Applicant’s submission that it (the wording) is directed at prohibiting extradition for conduct which constitutes an offence known purely to military law.  

  2. I do not accept that 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.

  3. I have already identified a number of offences under the New South Wales Crimes Act or the Commonwealth Criminal Code as equivalent offences when considering section 19(2)(c).

  4. The Respondent submits that the alleged conduct occurred during “purely military operations”’….’”the issue arises is that what has occurred is some violation of the rules of engagement that can only be addressed under military law.” (Part 2 paragraph [97])

  5. No attempt is made on behalf of the Respondent 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.

  6. I note the Respondent was indicted on civilian criminal offences in Chile, and not military offences.

  7. I am not at all persuaded that this extradition objection has any merit.

Objection on the basis that the Respondent has been pardoned by a competent tribunal or authority – section 7(e) Extradition Act

  1. The Respondent claims that by virtue of an amnesty in Chilean law she has been effectively pardoned by a competent tribunal or authority in respect of the extradition offence.

  2. There can be no doubt that the superior courts in Chile do not currently recognize the amnesty in relation to the types of offences for which the Respondent has been indicted. Those offences are viewed as crimes against humanity to which the amnesty provisions have no application.

  3. The Extradition Request contains judgments including appeal judgments from Chile’s superior courts concerning prosecutions of offences that occurred during the Pinochet Junta. Those courts do not recognise the suggestion of a blanket or general pardon being decreed.

  4. The reports relied upon by the Respondent from Chirgwin Abogados provide some useful political history of Chile. They also comment about some views that are contrary to the Court’s treatment of the amnesty that the Respondent relies upon.

  5. The issue of statute of limitations appears to have no application to these types of alleged offences. They are seen as continuing offences because the bodies have not been recovered. Accordingly, there is no starting point from which the statute of limitations would commence.

  6. In Harris v Attorney-General (Cth) & Anor (1993) 45 FCR 11 at page 27:

“The two classes of person 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 there 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.”

  1. The Applicant cites Harris (supra) and at page 29 refers to Ryan J. who, when considering s. 7(e) issues said that section 7(e) raises “the fundamental question of whether or not there is an obligation to extradite” and that it “therefore requires an assessment of whether or not there has been a final determination of the merits of the case.”

  2. The submission made on behalf of the Respondent and the two reports relied upon have not persuaded me that Ms Rivas has been pardoned; should be the subject of an amnesty; or that the statute of limitations apply in her favour.

  3. I am comfortably satisfied on the information before me that Ms Rivas is still amenable to legal process. I am also satisfied that there has not been a final determination of the merits of the case.

  4. Reference is then made to the appeal in Harris v Attorney General (Commonwealth) (1994) 52 FCR 386 at 410F where The Full Court agreed with Ryan J.’s characterisation of s.7(e):

“The present question is, in our view, to be resolved by reference to the laws of Argentina to which reference has been made.”

  1. Adopting that reasoning, the law of Chile is that an amnesty has no application to the types of offences for which Ms Rivas was indicted. The statute of limitations has no application for the types of offences for which Ms Rivas has been indicated.

  2. The fact that there are contrary views to the Chilean court’s interpretation of its laws is of no consequence to the decision that I make.

Determination of Extradition Objections

  1. The respondent has not satisfied me that there are substantial grounds for believing that there is an extradition objection in relation to the offence.

Other Material

  1. I attempted to watch or listen to various YouTube recordings from a thumb drive filed with the Court registry (by the Respondent’s solicitor), without success. I then managed to listen to and watch some of the recordings outlined in the affidavit of the Respondent’s solicitor deposed on 4 August 2020. That affidavit expanded upon a previous affidavit of Peter Tsintilas, solicitor dated 27 May 2020 which had merely listed URL links to the YouTube recordings. The August affidavit also provided a short summary of the links that were able to be opened, which was helpful.

  2. Neither the affidavit dated 27 May 2020 nor the affidavit dated 4 August 2020 have any relevance to the determination that I am required to make as to the Respondent’s eligibility for extradition. I disregard the contents of each affidavit.

  3. The affidavit of Mr Tsintilas dated 24 April 2020 relates to the Respondent’s bail matters. It has no relevance to the determination that I am required to make, and I disregard the contents thereof.

  4. The Respondent submits affidavits dated 16 March 2019 and 12 June 2020 for consideration in the Extradition proceedings.

  5. In relation to the affidavit dated 16 March 2019, most of the contents are geared towards bail issues and are irrelevant to the determination that I am to make for the Extradition proceedings. It is not my role to consider bail issues in these proceedings. Some of the content of the affidavit relates to denials of the conduct alleged. Such content contravenes section 19(5) Extradition Act.

  6. Of the information in that affidavit that I am entitled to receive, none of it assists me in the determination that I am to make as to eligibility for extradition.

  7. In relation to the affidavit dated 12 June 2020, it also contains material that appears to be denial of alleged conduct and contravenes section 19(5) Extradition Act. The cover sheet of the affidavit indicates that it is prepared in relation to a Bail Application. The matters that I am required to determine do not take into account previous or future bail applications. There are references within the affidavit of various documentaries that the Respondent has viewed. They have no bearing on the determination that I am to make.

  8. None of the affidavits relied upon by the Respondent are of assistance.

  9. I have read all written outline of submissions relied upon by the Applicant and the Respondent. I have considered the oral argument. I have considered the content of the Extradition Request bundles. I have considered the relevant legislation.

CONCLUSION

  1. I have conducted proceedings in accordance with the legislative requirements under the Extradition Act, including section 19(1).

  2. I am satisfied as to each of the conditions set out in section 19(2) of the Extradition Act. The Respondent is eligible for surrender.

ORDERS

  1. Pursuant to the Extradition Act section 19(9):

  1. I order Adriana Elcira Rivas Gonzalez be committed to prison to await:

  1. Surrender under a surrender warrant

  1. Inform Adriana Elcira Rivas Gonzalez that she may within 15 days after today seek a review of the order under subsection 21(1), and

  2. I shall record in writing the extradition offences in relation to which I have determined that Adriana Elcira Rivas Gonzalez is eligible for surrender and make a copy of the record available to her and the Attorney-General.

P Stewart

Local Court Magistrate

Central Local Court

29 October 2020

Endnotes





Decision last updated: 26 November 2021

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Papazoglou v Republic of the Philippines [1997] FCA 254
Republic of Croatia v Snedden [2010] HCA 14
Republic of Croatia v Snedden [2010] HCA 14