Rahardja v Republic of Indonesia

Federal Court of Australia|1999-10-15|Before: Hill J, Tamberlin J

REASONS FOR JUDGMENT 1 On 24 September 1999 a Magistrate of the Local Court of New South Wales decided that the applicant was eligible for surrender to the Republic of Indonesia ("Indonesia") in relation to two alleged extradition offences concerning Indonesian banking law. On the same day the applicant filed an application for review of that decision by this Court under s 21 of the Extradition Act 1988 (Cth) ("the Act"). This judgment concerns an application for bail pending review of the Magistrate's determination by this Court. The Court's power to grant bail arises under s 21(6)(f)(iv) of the Act which provides that the Court may: "… if there are special circumstances justifying such a course, order release on bail of the person on such terms and conditions as the court thinks fit, …" (Emphasis added) 2 It is common ground that such an application calls for a determination of whether there are "special circumstances", and if so, whether the Court should exercise its broad discretion to grant bail. 3 As summarised by the Magistrate, the respondent is alleged to have caused the Bank, of which he was the President, to lend money to his family companies, which were used for his own purposes, and in doing so falsified records and breached Indonesian banking law. The loans to the six family companies in question were alleged to have been unsecured. The allegation is that the respondent received the benefit of approximately $US 400 to 500 million, which at that time, was worth in the order of $A 540 to 675 million. 4 The applicant's submissions are briefly summarised as follows: i. The Magistrate made findings to the effect that the Indonesian justice system is dysfunctional, corrupt and subject to government interference and that the applicant would not receive a fair trial. ii. The applicant's prospects of success on review are good. The Magistrate erred by failing to apply the decision of Hill J in Prabowo v Republic of Indonesia (1995) 61 FCR 258, in relation to the admissibility of the supporting documents on the basis that they were "duly authenticated" within the requirements of ss 19(6) and 19(7) of the Act. iii. It is also submitted that the Magistrate applied too high a standard in determining whether there were substantial grounds for believing that the applicant may be prejudiced at the trial by reason of his Chinese ethnicity. iv. The applicant has been in continuous custody since 1 June 1999. Given his prospects of successfully reviewing the Magistrate's decision or, in any event, the real potential for a discretionary refusal to extradite by the Minister, there is a real likelihood that the further detention pending review is futile. v. The applicant did not come into Australia as a fugitive and is prepared to enter into appropriate conditions, such as daily reporting to police and the deposit of surety, as an indication that he will not abscond.

Bail - relevant principles 5 Recently the Full Federal Court in Bertran v Minister for Justice (1999) 165 ALR 155 considered the relevant authorities dealing with the grant of bail under the Act. In that case, the applicant applied for bail under s 15(2) of the Act which provides for grant of bail by a Magistrate. Their Honours contrasted the operation of that provision together with s 15(6) with s 21(6) insofar as the latter subsection, which is the relevant provision for present purposes, provides for a two step process. At 161 in the principal judgment, Sundberg and Merkel JJ said (at 163): "Section 21(6)(f) undoubtedly involves a two step process. The court 'may … if there are special circumstances justifying such a course, order the release on bail…'. Special circumstances must exist before bail can be granted, but there is a discretion to be exercised after special circumstances are found. It is not inappropriate to describe the first step as a condition precedent to the exercise of the jurisdiction to grant bail: … It is a condition precedent in the sense that it is a requirement that must be satisfied, though its satisfaction does not conclude the decision-making process because there is still a discretion to be exercised. Section 15(6) does not involve two distinct steps." 6 The Court then referred to the statement of French J in Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70, where French J, in considering the expression "special circumstances", said (at 74): "…whether there are special circumstances, involves a value judgment about which of the range of circumstances favouring the grant of bail are to be regarded as special and which are not. That is a judgment to be made by reference to two criteria: the general purpose of the provision imposing the requirement and broader community standards. The purpose of the special circumstances requirement … is to reduce what is perceived as 'the very high risk of persons sought for extraditable offences absconding.' It looks in particular to the case where a person is in Australia to avoid arrest in the country where he is alleged to have committed the offence." 7 In considering the "broader community standards", French J said (at 75): "A presumption in favour of liberty and against deprivation of liberty without just cause runs through the traditions of the common law … That presumption must, of course, give way to specific statutory provisions, but where those provisions do, as in the case of the Extradition Act, allow for normative judgments of the special circumstances under which bail may be granted, then the presumption arising under the common law, and in relevant international instruments may be taken into account." 8 In Schoenmakers French J granted bail on stringent conditions as to security, regular reporting, and surrender of a passport. Notwithstanding these conditions, however, Mr Schoenmakers absconded and the persons who had entered into a recognisance as sureties in the sum of $100,000 forfeited the surety. see Schoenmakers v Director of Public Prosecutions (1991) 105 ALR 273. The case serves as an illustration of the practical difficulties of ensuring that conditions of bail are adequate and sufficient to prevent departure. 9 Similar views and approaches to those expressed in Bertram are found in Holt v Hogan (No 1) (1993) 44 FCR 572 at 579-580, and in Kainhoffer v Director of Public Prosecutions (1993) 48 FCR 9 at 13 and 15.

Prospects of success - authentication 10 The applicant's submission is that there is a clear and patently fundamental error made by the Magistrate in failing to apply a binding statement of principle of the Court. This is said to be a discrete issue which goes to whether or not the extradition supporting documents were duly authenticated and therefore admissible within the special admissibility provisions under the Act. It is said that the "supporting documents" produced to the Court, on their face, did not "purport" to be duly sealed and authenticated in accordance with the requirements in s 19 of the Act. That section empowers a Magistrate to determine whether a person is eligible for surrender. A person is only eligible for surrender if a number of conditions are satisfied. These include a requirement that "the supporting documents" in relation to the offence must be produced to the Magistrate. These documents are defined and their authentication is dealt with in ss 19(2)-7(A) of the Act which relevantly provide: "19 (2) … the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if: (a) the supporting documents in relation to the offence have been produced to the magistrate; (b) where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate of any other documents - those documents have been produced to the magistrate; (c) the magistrate is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and (d) the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence. (3) In paragraph 2(a), "supporting documents", in relation to an extradition offence, means: (a) if the offence is an offence of which the person is accused - a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant; … (c) in any case: (i) a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and (ii) a duly authenticated statement in writing setting out the conduct constituting the offence. (4) Where, in the proceedings: (a) a document or documents containing a deficiency or deficiencies of relevance to the proceedings is or are produced; and (b) the magistrate 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. (5) In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought. (6) Subject to subsection (5), any document that is duly authenticated is admissible in the proceedings. (7) A document that is sought by or on behalf of an extradition country to be admitted in the proceedings is duly authenticated for the purposes of this section if: (a) it purports to be signed or certified by a judge, magistrate or officer in or of the extradition country; and (b) it purports to be authenticated by the oath of 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. (7A) Subsection (7) has effect in spite of any limitation, condition, exception or qualification under subsection 11(1), (1A) or (3)." 11 On this argument the focus is on s 19(7)(b)(ii). It is common ground that par (a) is satisfied in that the documents purport to be certified by a relevant officer of Indonesia. The submission as to non-authentication turns on the question whether the documents "purport" to be sealed with an official or public seal of Indonesia or of a Minister, Department or officer of the Government of Indonesia. The bundle of supporting documents in the English language are annexed to a certificate which reads: "I, NOOR MUHAMMAD AZIZ SH, Acting Director of Criminal Law, Directorate General for Legal Affairs, Department of Justice of the Republic of Indonesia, hereby certify that the documents annexed to this certificate are prepared to support the request to the government of Australia for the extradition of HENDRA RAHARDJA, in accordance with Article 13 of the Treaty on Extradition between the Republic of Indonesia and Australia signed on 22 April 1992. Jakarta, 24 June 1999 (Signature) NOOR MUHAMMAD AZIZ SH REG NO. 040033020" 12 As part of the bundle there is a back sheet on the English version of the documents upon which there is a broken red wax seal. The back sheet has a yellow ribbon which binds the pages together and contains typing which is as follows: (Red Wax Seal) "Translation of red seal 'Directorate General for Legal Affairs, Department of Justice of the Republic of Indonesia'. Jakarta, 24 June 1999 Ag. DIRECTOR OF CRIMINAL LAW, (Signature) NOOR MUHAMMAD AZIZ, SH REG NO. 040033020" 13 The red wax seal itself as it was before the Magistrate was broken and illegible and was in the Indonesian language. There was no certificate or affidavit of any translation of the wording on the seal. By the time the documents were produced to me, the red wax seal appeared to have further deteriorated and broken. 14 The question raised is whether the above bundle of documents can be described as documents which "purport to be sealed" in accordance with the provisions. 15 The short submission for the applicant in substance, is that because the seal was illegible and was in the Indonesian language, it "could not" purport to authenticate the documents under s 19(7). The Magistrate rejected the submission and after referring to the judgment of Hill J in Prabowo v Republic of Indonesia (1995) 61 FCR 258 he said: "Hill J at page 268 suggested that the seal should disclose in English what it purports to be. I find it difficult to imagine how that could be done unless there was a seal in the same words in English. If it is suggested that an English version of the seal should be used on the English translation, surely there is no difference and more authenticity if the correct Indonesian seal is used with a certified translation of the words … I should perhaps add that it is not possible for the other proposal suggested by Hill J to be adopted. He suggested that evidence could be given on oath of the translation of the words on the seal. That appears a simple solution but unfortunately the original wax seal is now broken and illegible." 16 In Prabowo, an objection was taken by the applicant on the hearing before the Magistrate on the basis that the wax seal affixed was in Indonesian and not in the English language. The Magistrate adjourned the hearing so this could be considered. Unlike the present case, the original page bearing the wax seal did not purport to have a translation of the wax seal on its face. On resumption, counsel sought to tender an English language version. There appeared on the front page of the later document in black ink, the words "Translation of Red Seal": "Directorate-General for Legal Affairs, Ministry of Justice of the Republic of Indonesia." There was then a notation by a person claiming to be head of the Consular section of the Embassy of Indonesia certifying that the translation was a true and correct translation of the red seal. This notation was followed by the signature of the officer over which appeared a blue inked stamp with a design in the middle and words around the seal, which again were in the Indonesian language except for the reference to the word "Canberra" on the seal. 17 At 270, Hill J said: "… the Republic of Indonesia seeks to rely upon an authentication by reference to their 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 a seal in the English language upon the translation then no doubt it would have been admissible under s 19(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." (Emphasis added) 18 In my view, Prabowo does not prescribe any principle of law. The case turned on its facts. The factual circumstances in that case are distinguishable from those in the present case. In the case before me, when presented to the Court, the page to which the seal was affixed contained on its face an annotation as to the meaning of the language on the seal. In Prabowo there was no translation on the face of the first document produced. There was an amended document proffered which in turn purported to be verified with a further seal in the Indonesian language and this seal appears to have been untranslated. Given the sequence of events in Prabowo it could be said that the Court was to some extent put on notice as to the need for further authentication. That sequence of events did not occur in the present case. 19 In addition, the expression "purport" is a broad term which includes, according to the Macquarie Dictionary, 2nd ed: "1. to profess or claim: a document purporting to be official." 20 According to the New Shorter Oxford Dictionary, the verb "purport" means: "1a. … of a document or speech: express, state; mean, signify, imply …. b. Profess to be or do; be intended to seem, appear ostensibly to be." 21 Meaning 1(b) is, in my view, apposite in the present case. 22 While there is considerable force in the applicant's submission on this point, I am not persuaded that Prabowo and the authorities there referred to necessarily preclude, in the present circumstances, a reasonable argument to the effect that the supporting documents "purported" by reason of the seal and the translation on the face of the document to be the seal of the specified Department. The facts in Prabowo were somewhat unique. I am therefore not satisfied that the argument based on the lack of proper authentication is of such force as to constitute a special circumstance either taken alone or in conjunction with the other matters referred to by the applicant.

Other matters 23 Two other matters were relied on to give rise to special circumstances. 24 The first of these is based on the Magistrate's findings as to the probability that the applicant, if released to Indonesia, would not receive a fair trial. It is said that on such a finding it would clearly be unjust, oppressive and/or incompatible with humanitarian considerations to return the applicant. These criteria are derived from Article 9(2) of the Extradition Treaty between Australian and the Republic of Indonesia which applies by reason of reg 5 of the Extradition (Republic of Indonesia) Regulations 1994 (Cth). 25 This submission proceeds on the basis that under subs 22(3)(e)(iv) of the Act the Attorney-General is given a broad discretion to determine that an eligible person is not to be surrendered. Accordingly, this must be taken into account and given great weight when deciding whether bail should be granted. In the circumstances of this case it is said that the Attorney-General, having regard to the Extradition Treaty, would be likely to refuse surrender of the applicant. In support of this proposition reliance is placed by the applicant on the decision of the Full Federal Court in Bannister v New Zealand [1999] FCA 362, where the Court concluded that it would be unjust or oppressive to surrender the applicant in that case to New Zealand having regard to the quality of the trial he would be likely to receive according to Australian standards. The New Zealand procedure of concern in that case was one which permitted a trial on an indictment which alleged a representative sample of sexual offences. The potential unfairness in that case was far less in degree, on its face, than that which could apply in the present case. It is to be noted that Bannister was concerned with s 34(2) of the Act which is non-discretionary and mandated that the Magistrate, if satisfied that surrender would be unjust, oppressive or too severe, must order that the person be released. In the present case, we are concerned with discretionary power to refuse surrender with the consequence that many other considerations may be weighed in the balance. 26 Given the width of the Attorney-General's discretion under s 22 and the fact that it is a Ministerial discretion, it cannot, in my view, be predicted with any degree of accuracy what view the Attorney-General would reach after consideration of what he takes to be "relevant considerations". Accordingly, the possibility of a particular exercise of discretion on the part of the Attorney-General, in the present case, cannot be said to give rise to any special circumstance. 27 A further submission was that the Magistrate erred in not being satisfied that there were substantial grounds for believing that there is an extradition objection within the meaning of s 19(2)(d) of the Act. That issue arises in this way. By s 7(c) of the Act an extradition objection exists where a person may be prejudiced at trial, relevantly here, because of his race. 28 The Magistrate rejected the case advanced for the applicant on this ground because none of the four witnesses called on this aspect: "… notwithstanding their undoubted knowledge and expertise, could come up with one case which would support the proposition that an ethnic Chinese had been prejudiced at his trial because of his race." 29 The Magistrate went on to note: "There was no evidence from the respondent himself or from any member of his family as to any discrimination suffered by the respondent in his business dealings in Indonesia." 30 Largely, this submission is based on the evidence of four professors. One of these, Professor Lev, was not accepted. The error of law is said to reside in the fact that the Magistrate applied the wrong test because he failed to "speculate" as to future events based on the available evidence. He is said in effect to have wrongly focussed on what in fact had occurred rather than looking to the future to see what might happen. 31 The difficulty with this submission is that the correct test, as stated by Senior Counsel for the applicant, was expressly put to the Magistrate and recorded in his reasons for judgment. In these reasons the Magistrate said (at p 19): "The respondent has not satisfied me that there are substantial grounds for believing that he may be prejudiced at his trial or punished by reason of his race." (Emphasis added) 32 In summary, I am not satisfied that having regard to the matters raised by the applicant either taken alone or cumulatively, the prospects of success of the applicant are sufficient to give rise to special circumstances which warrant the release of the applicant on bail at this stage of the proceeding. In view of this conclusion it is not strictly necessary to deal with the exercise of discretion but as it was fully argued, I briefly set out my conclusions.

Discretion 33 In this case it is important to bear in mind the nature and gravity of the alleged offences. I have already referred to the large sums involved and the nature of the charges. They are extremely serious. Under Australian law, as set out in the reasons of the Magistrate, the offences could give rise to imprisonment of various terms of between two and ten years. The incentive to escape the risk of surrender to Indonesia to face trial on these charges must be very strong indeed. 34 In these circumstances there is a real possibility that the applicant might abscond notwithstanding the imposition of stringent conditions as to bail. 35 Against these considerations it is said that the applicant's passport is held by the Australian Federal Police, and that he is prepared to enter into appropriate conditions of bail and regular reporting. It is also pointed out that he has investments in Australia and owns some land in Perth, and that before he was arrested in June he had lodged an application for permanent residence in Australia. Furthermore, and importantly, it is pointed out that the applicant has been in detention for over four months, and that is an important question of personal liberty if it should eventuate that his continued detention is unnecessary or arbitrary. 36 While I accept the cogency of these considerations, it is essential to keep in mind the purpose underlying the requirement for "special circumstances", which was set out in the Explanatory Memorandum accompanying the Bill providing for this criterion. That Explanatory Memorandum relevantly reads: "Such a provision is considered necessary because experience has shown that there is a very high risk of persons sought for extraditable offences absconding. In many cases the person is in Australia to avoid arrest in the country where he is alleged to have committed the offence, ie the person left the jurisdiction to avoid justice." 37 The experience of the Court in relation to the Schoenmakers extradition application gives an example of such a fear having been realised. 38 At the outset of the proceedings, Counsel for the applicant agreed that there was a presumption against bail in proceedings such as these, particularly where there is an application pending for review. There has in this case been a determination made after a hearing before the Magistrate and the position is different from that where a magistrate is asked to give bail before there has been any determination as to whether the applicant is eligible for surrender. The threshold to establish "special circumstances" has not been met in the present case and, additionally, in the exercise of my discretion, having regard to the nature and extent of the alleged offences, I find that this is not an appropriate case to warrant a grant of bail. I am not satisfied that appropriate conditions can be imposed which would effectually eliminate the obvious risk of absconding. I therefore refuse the application for bail pending review and order the applicant to pay the respondent's costs.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Solicitor for the Respondent: Commonwealth Director of Public Prosecutions

Extradition Act 1988(Cth)ss 7, 15, 19, 21, 22, 34

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