The statement of conduct in relation to the appellant
103 Before the s 19 magistrate, Indonesia relied on both the extradition request (which was the basis for the Minister's s 16 decision), and the attachments to that request. All were, as we understand the evidence, "duly authenticated", or at least there was no challenge they were not "duly authenticated". There were three attachments to the extradition request itself: two were not in dispute in the s 19 proceeding but one - Attachment C - was the subject of submissions on behalf of the appellant. It was contended that Attachment C could not properly be accepted as part of the supporting documents, and even if it could that its contents did not constitute a statement of conduct for the purposes of s 19(3)(c)(ii), forming part of the conduct statement produced to the s 19 magistrate by Indonesia.
104 Attachment C was described by Indonesia to the s 19 magistrate, accurately, as an Indonesian national police investigator's progress report, being "a report of the criminal case against the respondent compiled by the Indonesian national police". It contained a summary, with considerable detail, of what 9 witnesses would say about the appellant's conduct, his company's rules and policies, and a series of financial transactions.
105 The summary of the appellant's conduct given in the extradition request was contained in the primary judge's reasons at [69], but should be reproduced here:
Statement for alleged conduct done by Ronny Liem
15. Ronny Liem is the Director of PT. Indonesia Konsorsium Investama (PT. IKI), a stock trading company, from 2011 until 2015, pursuant to Notarial Deed Number 134 dated 29 May 2006, issued by Public Notary Edison Jingga, SH.
16. Sometime between 25 February 2011 and 10 April 2015, Ronny Liem as the President Director of PT. IKI, instructed Marlin (a Financial Staff of PT. IKI) and Vinewati (Accountant of PT. IKI) to gradually deliver to himself 134 papers of cheque.
17. Ronny Liem ordered Marlin and Vinawati to issue those cheques without going through the procedure that has been determined by PT. IKI, such as financial control and consultation.
18. In 2015, it was found that Ronny Liem has cashed those cheques and he never pay for it to PT. IKI. According to Financial Division, the PT. IKI has suffered a big loss amounted Rp.131,995,995,000 (one hundred thirty one billion nine hundred ninty [sic] five million and nine hundred ninety five thousand rupiah).
19. Ronny Liem used the PT. IKI's money for his personal purposes and according to further investigation it as known that those funds were used for establishing his new businesses.
20. Indonesia National Police has conducted examination of witnesses to 8 (eight) persons, which are: Mr. Abu Hermanto (Shareholder), Mr. Gooi Whuang Pheal alias Clement Gooi (Consultant), Mr. Marlen (Financial), Ms. Vinawati (Accounting), Ms. Suci Rusdiyati (Bank Officer), Mr. Hansen (Bank Officer), Mr. Donny (Receiver), Mr. Agus Sukoco (staff). Based on witnesses' statements and the foregoing evidence as to the suspect Ronny Liem, there is strong allegation of embezzlement and money laundering as defined by Article 374 Indonesian Criminal Code, and Article 3 and 4 Law Number 8 of 2010 on Money Laundering Crime Prevention and Eradication.
21. The police investigation report is attached (ATTACHMENT C).
106 It can be seen that the key allegations of conduct against the appellant are that:
As President and Director of a company, he instructed staff members to "gradually deliver" him 134 cheques from the account of the company of which he was a director;
He did so without following procedures determined by the company;
He cashed those cheques and did not repay the money to the company; and
He used the cash proceeds for "personal purposes" when, it is alleged, the money belonged to the company.
107 There may have been a real question whether or not what was in the extradition request alone would have been sufficient, and whether if that is all there was before the s 19 magistrate, the dual criminality assessment may well have miscarried. However, there was more detail in Attachment C. The issue is: how did Attachment C add to or fill out the allegations made in the extradition request? At [72], the primary judge helpfully summarised the contents of Attachment C by reference to what each of the nine witnesses alleged:
The police report then describes the nature of the evidence that nine witnesses are able to give. That narrative may be briefly summarised as follows:
(1) The evidence of the first witness is that of the "President Commissioner" and shareholder of the company who had recruited Mr Liem because of his experience in a "future trading company", being the business of the company. He is able to give evidence that the authority to expend cash or incur [expenses] rested with the Board of Directors, including Mr Liem. He can describe the procedure that was required to be adopted. He can give evidence that the required procedure was not complied with by Mr Liem.
(2) The second witness is a financial consultant with the company and can give evidence, inter alia, that when Mr Liem requested the 134 cash cheques, he said he would furnish and complete the necessary documents and approvals in accordance with company procedure but had never done so. He can also give evidence about the authority to expend cash or incur [expenses] that rested with the Board of Directors, including Mr Liem, and describe the procedure required to be adopted.
(3) The third witness worked in the finance department of the company and, along with other formal details, can give evidence about the extent of the loss to the company based on a summary by the finance and accounting department supported by an independent auditor's report.
(4) The fourth witness is also from the finance department of the company and can provide further details of the reporting requirements in relation to expenditure and the absence of the obtaining of any payment approval prior to the 134 cheques being drawn. It seems that he can produce the internal records of the company.
(5) The fifth witness worked in the accounting department of the company and describes the way in which Mr Liem had obtained the payment of the cheques without complying with company procedures.
(6) The sixth witness was a head teller at one of the banks involved, whose responsibilities included supervising payment transactions and the withdrawal and transfer of money by customers. The witness can give evidence about bank records in relation to the transactions.
(7) The seventh witness also worked at one of the banks and can produce the account opening records for an account opened by Mr Liem. He can also produce bank account statements for 89 transactions.
(8) The eighth witness was a former co-worker of Mr Liem who had worked with him in the past at another company. He can give evidence of receiving money from Mr Liem over 20 transactions that were given to him to manage and run a business in South Jakarta.
(9) The ninth witness worked at the company, with his main duties being to deliver documents and perform transactions upon the instructions of the company accountant. He is able to describe how a number of the cheques were disbursed and can produce a number of documents.
108 From the primary judge's summary, and from Attachment C itself, it is clear that the only statements in Attachment C which contain any allegations about what the appellant did with the cheques he is alleged to have used, beyond converting some of them to cash, are the statements made in the summary of the evidence of the eighth witness. The eighth witness is the gentleman named in Attachment C as Mr Donny.
109 The appellant's key argument is that, for a statement of conduct constituting the offence of money laundering (independently, as the appellant submits and we accept, from a statement of conduct constituting the offence of embezzlement), and looking at the elements of the Indonesian offence in Art 3 of Law Number 8 of 2010, it is necessary for there to be a statement of the "acts and omissions" of the appellant about what he did with the cheques or, perhaps, their proceeds. In other words, where, the appellant rhetorically asks, is the statement of acts and omissions concerning how the appellant:
(a) "[P]laces, transfers, spends, pays, grants, deposits, takes to abroad, changes the form, changes to the currency or securities or other deeds";
(b) Did so "towards the Assets", which are reasonably alleged to be the result of criminal action. Article 2 defines "Assets", and we understand the appellant does not challenge the respondents' submissions that the cheques are alleged to be the proceeds of embezzlement, being the criminal action;
(c) Did so with the purpose to hide or disguise the origin of the "Assets".
110 Article 4 of Law Number 8 of 2010 confirms that an act or omission of that offence (assuming it to be a separate offence from Art 3, which it would appear to be) is that a person:
…hides, or disguises the origin, source, location, purpose, transfer of right or the truly ownership of the Assets.
111 The appellant contends that the allegations in the summary of the evidence of Mr Donny are the only part of Attachment C which deal with what the appellant is alleged to have done with the 134 cheques. Mr Donny's evidence is that he was employed by the appellant to run a café called "Café X9". His evidence is that he received, as a bank transfer, more than 70 million rupiah from Mr Liem in "more than 20 transactions", for Mr Donny to "run and manage the business Café X9".
112 We note however that witness 6's statements go to the cashing of the cheques, and also to transfers of some of the cheques to other accounts. Witness 7's evidence also goes to the disbursement of some of the cheques (89 in total), the majority of which were converted to cash.
113 The appellant also submits that Mr Donny gave evidence of only "more than 20 transactions totalling about 70 million rupiah", being approximately AUD $6,500, whereas the allegations against the appellant in relation to the 134 cheques involve a total sum of more than AUD $13 million (see the primary judge's reasons at [1]). The appellant also submits that Mr Donny's evidence was not about any cash transactions, but only bank transfers of funds to be used at the café. The appellant also notes that the bank account identified by Mr Donny is not the bank account that features in any of the other allegations against the appellant, in terms of where he directed the proceeds of the cheques be transferred. He submits there is no clarity in Attachment C, nor in the extradition request, about whether only part of the 134 cheques are alleged to have been laundered, and if so how, or whether all of them are alleged to have been laundered and if so how.
114 In those circumstances the appellant contends it is not possible to understand and identify, nor was it possible for the s 19 magistrate to understand and identify, what were the acts and omissions alleged by Indonesia to constitute the money laundering offence. The appellant submits the error revealed in the primary judge's reasons appears at [75], where his Honour finds:
While it is fair to say that the conduct description in the request and in the police witness evidence summary is not as clear or concise an account of Mr Liem's conduct as it might have been, there is little difficulty in discerning the essential nature and extent of what he is alleged to have done. The information was ample to meet the necessary statutory description of a "statement in writing setting out the conduct constituting the offence[s]".
115 Although counsel recognised it was a relatively small point, the appellant submits that the conflation of the acts and omissions in the conduct statement, and their treatment as if there was only one extradition offence, is also apparent from the terms of the warrant and determination issued under s 19(9). The warrant and determination is stated by the s 19 magistrate, in his letter to the then federal Attorney-General, to "record in writing the extradition offences for which we have determined Ronny Liem eligible for surrender". In paragraph (c) of the warrant, the s 19 magistrate records:
I am satisfied that, if the conduct of Ronny Liem constituting the offence in relation to the Republic of Indonesia had taken place in the State of New South Wales, being the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to Ronny Liem was received, that conduct would have constituted extradition offences in relation to that part of Australia.
116 We have emphasised the singular, in the first line, to which counsel drew the Court's attention. We also note that no New South Wales offences are set out. Whether or not this was a mandatory requirement, no New South Wales offences are set out in the s 19 magistrates' reasons either, although the s 19 magistrate refers to the Republic of Indonesia's submissions that dual criminality was established by reference to provisions of s 192E of the Crimes Act 1900 (NSW) or, variously, ss 104 or 184 of the Corporations Act 2001 (Cth).
117 Therefore, the appellant submits:
There is nothing in the statement of conduct setting out the acts of the appellant in relation to all 134 cheques that falls within the description in [109(a)] above;
There are no acts or omissions alleged concerning the element of "hiding or disguising"; and therefore even if both the terms of the extradition request at [15]-[21] and Attachment C are taken and read together, as the appellant accepts the authorities require, their contents do not constitute a sufficient statement of the "acts and omissions" constituting the money laundering offence, and - independently - the acts and omissions constituting the embezzlement offence.
The extradition request and Attachment C, even if taken together, conflate the acts and omissions for each of the two Indonesian offences in a way which renders the statement of conduct too disorganised, and too unclear, to satisfy the threshold set in the authorities. The conduct statement could not enable a s 19 magistrate, performing her or his task conscientiously, to identify the acts and omissions constituting each offence, and in particular the acts and omissions constituting the money laundering offence. Rather, the effect of the two documents, presenting a narrative without any attention being paid to the existence of two extradition offences, read with the s 19 magistrates' reasons and the terms of the extradition warrant, indicate there was no separation at all of the acts and omissions for each extradition offence.
The appellant recognises that the Court in McDade (at first instance and on appeal) seem to have been faced with a similar situation, in that the conduct statement was in a narrative form. However, there the judges decided they were able to match up, by identifying particular paragraphs, which allegations of acts and omissions went to each of the extradition offences (see, for example Carr J at first instance at [36]-[37], and Kenny J on appeal at [28].
118 The respondents had two responses to these arguments.
119 The first was it was unnecessary to "delve into the detail" of the conduct statement, or work out which conduct relates to which offence. They relied on what was said in McDade at first instance at [35], and on appeal at [27]. At first instance Carr J said:
In view of that concession made by counsel (in my view properly) it is not necessary for me to decide whether there should have been a separate document comprising the relevant statements for each charge. The question is whether it is necessary to segregate the charges in the statement ie separately to set out the acts or omissions by virtue of which each offence is alleged to have been committed. I think that to impose such a requirement would be to put a gloss on the statutory provision. However, I acknowledge that if a particular statement were so badly organised that it was not reasonably possible to discern the acts or omissions relevant to any particular charge, then the document might not constitute a statement setting out the acts or omissions constituting the offences.
120 And on appeal, Kenny J said at [27]:
There is, I think, no such requirement. What is required is, as I have said, a clear and coherent statement of the actual acts and omissions that are said to constitute the relevant offences. Certainly, the statement must speak with sufficient specificity to permit the magistrate charged with conducting proceedings to discharge the tasks required of him, but, in my opinion, it may do so without setting out separately and repetitively each act and omission relied on in relation to each offence.
121 The second response was that it was no part of the s 19 function, nor the primary judge's function under s 21, nor this Court's function on appeal, to examine what offences with which Indonesia chooses to charge Mr Liem: that remains a matter solely for Indonesian authorities, in accordance with relevant domestic criminal laws and procedures. Neither under s 19, nor s 21, nor on appeal, is the task to try and match up the elements of the Indonesian offences with the acts and omissions alleged against Mr Liem in the conduct statement, to see if there are acts and omissions going to each element of the Indonesian offences. Rather, the task is to measure the acts and omissions in the conduct statement against relevant Australian criminal offences which qualify as extradition offences and to see whether what is in the conduct statement, if it had occurred in the relevant part of Australia, would have constituted an offence against the law of Australia which qualifies as sufficiently serious to be an extradition offence.
122 We reject the respondents' first response, but accept their second response. We turn to explain why.