Admissibility of the supporting documents
85 Ground of appeal no 8 states:
"His Honour misconstrued the requirements for authentication pursuant to s 19(7) of the Act and erred in ruling that the supporting documents were admissible pursuant to s 19(6) of the Act."
86 The appellant's complaint in this regard is very narrow. It is common ground that subss 19(2) and (3) of the Act prescribe the documents which must be tendered in support of an application for extradition. Subsection 19(3) identifies specific documents, but para 19(2)(b), when read with s 11, contemplates the possibility that regulations may make special provisions applicable to requests from some countries. For present purposes, it is common ground that the regulations require that certain other documents be provided, including an English translation of all documents to be tendered. The Republic of Indonesia relies upon subss 19(6), 19(7) and 19(7A) of the Act to facilitate the receipt into evidence of all necessary documents including the translation. For convenience, we repeat those subsections:
"(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 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) …
(7A) Subsection (7) has effect in spite of any limitation, condition, exception or qualification under subsection 11(1), (1A) or (3)."
Sub-section 19(5) is not presently relevant.
87 As we have said, before the magistrate, the Republic of Indonesia sought to tender two bundles of documents, one primarily in the Indonesian language and the other primarily in English. It seems the proceedings were conducted upon the basis that the proposed tender of the English bundle was in satisfaction of the requirement that there be an English translation of all the documents in the Indonesian bundle. We have already described the physical condition of each bundle. We understand it to be common ground that both wax seals originally bore identical impressions. Counsel for the Republic asserted as much at p 22 of the transcript of proceedings before the magistrate. He said, referring to the decision of Hill J in Prabowo v Republic of Indonesia:
"So that, clearly, if the seal which had been put on the second time had been accompanied by a translation, then the problem would have been overcome. What happened there was that the problem perpetuated itself because when the translation of the first seal was provided, it was accompanied by another seal which was not translated, so that the same problem just regenerated itself. Here, where the same seal applies, it appears twice, the second being the translation documents, it is accompanied by a translation and thus, the problem that Hill J identified is overcome."
As far as we can see, the appellant did not dispute this statement in the course of his submissions in reply, and as much was implicit in the magistrate's reasons. We did not understand counsel to take any different position before us.
88 Broadly speaking, para 19(7)(a) requires that documents be signed or certified by a prescribed person, while para 19(7)(b) requires they also be attested or sealed. The appellant submits the documents are not shown to have been properly attested or sealed.
89 As we have stated, there are numerous signatures and ink seals on the various pages in each bundle, quite apart from the wax seals to which we have referred. The Republic relies upon the signature of Noor Muhammad Aziz SH, which appears on the front page of each bundle and on the backsheet of the English bundle, as satisfying the requirements of para 19(7)(a). It relies upon the red wax seals, which were affixed to the backsheet of each bundle, as satisfying the requirements of para 19(7)(b). We understand the appellant to challenge only the extent of compliance with the latter paragraph, relying primarily upon the decision of Hill J in Prabowo.
90 In order to understand that decision, it is necessary to consider two other "extradition" decisions, the first being Zoeller v Federal Republic of Germany (1989) 23 FCR 282. The Full Court (Lockhart, Gummow and Hill JJ) was there concerned with an attempted tender of two bundles of documents, each bound with tape which was sealed with what appeared to be the seals of German courts. Both bundles contained documents in German, sealed with court seals and signed by a judge. In each bundle there was a document headed "Translation into the English Language". The translations were not sealed or signed by a judge; but each contained, on its last page, a certificate, signed and sealed by the translator.
91 The Court concluded that neither bundle was authenticated as required by subs 19(7); although each was sealed, neither bundle was signed or certified as required by para 19(7)(a). However, in each bundle, there was a warrant, duly signed and sealed, which satisfied the requirements of subs 19(7). The only objection taken before the magistrate was as to the absence of a statement in writing setting out the conduct constituting the offence. The Court considered the warrants were sufficient to satisfy that requirement. There had been no complaint at first instance as to authentication, nor as to the admissibility of the English translations. In those circumstances, the Full Court held the various documents had, in any event, been properly received into evidence.
92 Their Honours observed that, although the German language documents were in evidence, they could not have been acted upon without appropriate translation, and any translation would have to be in admissible form. Because a translation had been received without objection, there was no difficulty in this regard. The Court said the necessary translation might otherwise have been provided by agreement or by a translator giving appropriate evidence. It seems no consideration was given to the possibility of authentication of the translation pursuant to subs 19(7), which was the course followed in the present case. It is interesting to note that, in the report of the decision, there is no suggestion that the wording on the seal, or that which identified the signatory as a judge, had been translated from the German in which it was presumably expressed.
93 The second case is Federal Republic of Germany v Haddad (1990) 21 FCR 496. That case involved an application for extradition of a convicted person, so the documentary requirements were somewhat different from those presently under consideration. Sub-section 19(7) was again relied upon as the basis for admissibility of the documents in question. On appeal, it was conceded by counsel for the Federal Republic that it had failed to comply with the requirements of that subsection. Nonetheless, at 497 the Court (Pincus, Foster and von Doussa JJ) said:
"Exhibit 3 was tendered to establish matters mentioned in s 19(3) of the Act, namely the conviction, the sentence imposed, the extent to which it had not been carried out, a description of and the penalty applicable in respect of the offence and the conduct constituting the offence … . The exhibit consists of some material in the German and some in the English language, and speaking generally, the English material is a translation of the German. However, the last sheet of the exhibit headed 'Bescheinigung', which has two seals upon it and appears to be intended to be an authentication of what precedes it, is not translated."
94 It seems this last page, bearing the signature and seals, had been relied upon before the magistrate in Haddad, as evidence of signing and sealing for the purposes of subs 19(7). The Full Court appears to have assumed compliance with the provisions of para 19(7)(a) and to have considered only the question of compliance with para 19(7)(b). At 498, their Honours said of the decision in Zoeller:
"The Court held that:
'For a tribunal to act upon the document, applying its own understanding of the foreign language uncommunicated to the parties will involve an abuse of natural justice.'
What the Full Court had to say about the necessity for translation of documents to be placed before the Court did not have to do with material such as that with which we are concerned - the last page of Ex 3; it was directed rather to what might be called the substantive, not the authenticating, material. Further, it was obiter.
However, it appears to us, with respect, that this principle necessarily applies to the last page of Ex 3. A person familiar with the German language might well have understood, as the learned magistrate apparently did, that the authentication was intended to be constituted only by one of the seals and that the rest of the writing on the page and the other seal were irrelevant to the question of authentication. However, we are of opinion that, wholly untranslated as it was, the last page was simply inadmissible and that the magistrate was in error in holding that one of the seals on that page satisfied s 19(7)(b) partially quoted above and holding, by implication, that the rest of it was irrelevant. It was not a proper course, in our view, to speculate as to what was the effect of any of the material on the last page of Ex 3. We have, in arriving at this conclusion, followed and somewhat extended the statement of principle of the Court in Zoeller's case; we act on the view that material placed before the Court to satisfy the requirements of s 19(7)(b) should not be received, if written in a language other than English, unless its English meaning is proved or admitted."
95 As we understand it, the "extension" by the Court in Haddad of the decision in Zoeller was to require that authentication provisions designed to satisfy the requirements of subs 19(7)(b) be translated into English. In Zoeller the Court had considered only the need for translation of the "substantive" aspects of the documents.
96 In Prabowo the Republic of Indonesia followed a course similar in most respects to that which it adopted in the present case. It sought to tender two sets of documents, each bound with yellow ribbon across which was fixed a red wax seal. In each case the seal had been partly obliterated, although there were words in Indonesian discernible on it. One set of documents was completely in the Indonesian language; the other was in English and was presumably a translation of the Indonesian documents. On the front page of the English language version was a certificate by a Mr Machrany, Director of Criminal Affairs, Directorate General for Legal Affairs, Ministry of Justice of the Republic of Indonesia, certifying that the documents annexed were tendered in support of the request for extradition. Next to Mr Machrany's signature was an ink stamp in the Indonesian language containing words which appeared to be the same as the words on the wax seals. The Indonesian bundle contained typed words in the Indonesian language. Again, Mr Machrany's signature and an ink stamp appeared on the front page.
97 Objections taken before the magistrate were:
· That the documents were not validly authenticated because they did not purport to be signed or certified by a "judge, magistrate or officer".
· That the wax seals and the ink stamps contained words in the Indonesian language, not translated into the English language.
98 The question of the identity of the certifying officer is not relevant for present purposes, no such point having been taken in these proceedings.
99 It seems that, in Prabowo, the magistrate granted an adjournment of the proceedings to enable the Republic to remedy perceived deficiencies in the documentation. At the resumed hearing, counsel for the Republic sought again to tender the English language bundle. By that time, it had been endorsed with the words:
"Translation of red seal:
Directorate-General for Legal Affairs, Ministry of Justice of the Republic of Indonesia."
Below those words, also in ink, was the following notation:
"I, Indra Kesuma Oesman, Head of the Consular Section of the Embassy of the Republic of Indonesia, hereby certify that the Above translation of 'Directorate-General for Legal Affairs, Ministry of Justice of the Republic of Indonesia' is a true and correct translation of the red seal appearing above."
That notation was followed by the signature of Ms Oesman, over which appeared a blue ink stamp with a design and words, again in the Indonesian language, and the word "Canberra". There were further words written on the page which repeated the translation. They were followed by another signature by Ms Oesman as First Secretary, with a seal over that signature, again containing words in the Indonesian language and the word "Canberra".
100 As to the seals, Hill J said (at 268):
"There is nothing in the Act itself which requires documents which are sought to be tendered as supporting documents to be in the English language. However, so far as the documents themselves are concerned, if they are to be acted upon it is obvious enough that they must be able to be understood by the magistrate and all parties. No doubt it is for this reason that Art 11(4) requires that documents submitted in support of a request for extradition be accompanied by a translation into the language of the requested State.
Section 19(7), so far as is relevant, requires authentication to "purport" to be by the use of a seal which is an official or public seal. Whether the seal purports to be a seal of a particular kind must appear on its face. It is hard to know how a document could purport to be sealed with an official or public seal if one could not read the material on the seal. Put simply therefore, for an instrument to purport to be sealed by a public seal of a particular kind it will be necessary either that the seal disclose in English what it purports to be or that some person translate into English the words on the seal again so that it can be seen what the seal purports to be."
101 After referring to the decisions in Haddad and Zoeller, his Honour continued at 270:
"In the present case, the issue is a different one. Here, the Republic of Indonesia seeks to rely upon an authentication by reference to there being affixed to the document a seal of a particular kind. There is affixed to the document a seal (both a wax and an inked imprint) but the document itself does not enable one to say whether that seal purports to be a seal of the relevant kind so as to constitute an authentication. One could only ascertain that by some form of translation. Hence the documents originally sought to be tendered did not qualify as 'supporting documents' because the authentication had not been proven."
102 His Honour concluded that the added translation of the seal on the original documents did not satisfy the requirement for authentication because it was "no more than the statement of a person purporting to be a translator not given in evidence." His Honour considered that:
"Had there appeared a certification and 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."
103 Before turning to the appellant's argument, it is appropriate to dispose of one matter. It was said in the course of argument that no point was taken regarding the destruction of the seals. Nonetheless some aspects of the written submissions seem to suggest to the contrary. We refer particularly to par 68 of the appellant's outline. Out of an abundance of caution, we therefore draw attention to Norton, "A Treatise on Deeds" (2nd Ed, Sweet and Maxwell Limited, London, 1928) at 47-48:
"The cancellation of a deed by accident or mistake does not affect the deed, or the rights of any person thereunder.
Where the seal was pulled off by a little boy the deed was allowed to be given in evidence: Anon (1625), Latch, 226; Palm. 403.
A certificate of a bishop under the Act of Uniformity was produced which had only a small bit of wax upon it. Twisden, J.: 'If it was sealed, though the seal be broken off yet it may be read, as we read recoveries after the seal is broken off, and I have seen letters of administration given in evidence after the seal broken off, and so of wills and deeds.' Accordingly it was read : Clerke v Heath (1669), 1 Mod. 11.
'It is not universally true that a deed is destroyed by an alteration, or by tearing off the seal. … In any case where the seal is torn off by accident after plea pleaded, the deed is held good' (see 1 Roll. Rep. 40; Michael v Scockwith (supra); ' … and in these days, I think even if the seal were torn off before the action brought, there would be no difficulty in framing a declaration which would obviate every doubt upon that point, by stating the truth of the case. … The difficulty which arose in the old cases depended very much on the technical forms of pleading applicable to deeds alone' : per Buller, J., Master v. Miller (1791), 4 T.R. 320, at p. 339; 2 R.R. 399.
'I can no more consider this as avoiding the instrument than if it had been obliterated or cancelled by accident' : per Lord Ellenborough, C.J., Henfree v. Bromley (1809), 6 East, 309, at p. 312; 8 R.R. 491.
'If the absence of intention to cancel be shown, the thing is not cancelled' : per Maule, J., Bamberger v. The Commercial Credit (1855), 15 C.B. 676, at p. 693; 24 L.J.C.P. 115; 100 R.R. 542; and see Perrott v. Perrott (1811), 14 East, 423."
104 We take it as settled that destruction of a seal without the intention of revoking the document in question does not affect its validity and that this proposition applies to documents under seal which are not deeds.
105 The appellant's argument appears to involve the following propositions:
· The decision in Zoeller establishes that evidence in a foreign language must be translated into English in order that it be used in the relevant proceeding.
· The decision in Haddad establishes that any words relied upon to satisfy the requirements of subs 19(7) must be similarly translated.
· In the present case the typed words below the seal on the back sheet of the English bundle were an "attempt to prove the meaning of the words as they appear on the illegible seal and, thus, to establish that the seal satisfied the definition in s 19(7)(b)(i)."
· In order that those words be admissible for that purpose, they must themselves be verified in the way contemplated by subs 19(7).
· "… the admissibility of the typed writing cannot be determined by reference to the certification on the front of the supporting documents. That certification is an independent requirement under s 19(7)(a)". "In terms of admissibility, therefore, the typed writing must stand alone."
· Subsection 19(7) prescribes "the dual requirements for authentication" which may not be "defeated in favour of a single requirement of certification".
106 We see nothing in either Zoeller or Haddad with which we would wish to disagree. However we do not understand either case to be authority for the proposition that, in all circumstances, words in a foreign language upon a seal relied upon for the purposes of subs 19(7) must be translated into English. In many cases, such words, if translated, may assist in satisfying the requirements of para 19(7)(b), but that does not lead to the conclusion that such a translation will always be necessary. Paragraph 19(7)(b) requires that the document in question purport to be sealed with an official or public seal. The paragraph does not require that a seal take any particular form.
107 A seal on a deed may take many forms. In "Halsbury's Laws of England" (4th Ed, Vol 13, par 26) the following passage appears:
"In certain circumstances, a deed must be sealed, that is it must have a seal fixed or impressed upon or attached to it, and the party professing to be bound by the deed must do some act expressly or impliedly acknowledging the seal to be his. It is not, however, necessary that any particular kind of seal should be used, provided that there is affixed or impressed to or on the deed something purporting to be a seal. Thus the seal may be of wax affixed on the deed or attached to it by a ribbon, or it may be a wafer, or it may be simply impressed on the deed. Indeed it may suffice that there is merely a printed circle inscribed with the letters 'L S' if the document was intended to be delivered as a deed of a party executing it.
The seal need not bear any indication that it is the particular seal of the person who affixes it. Thus it need not be stamped with his coat-of-arms, crest, or initials, or otherwise specially marked, and it became the practice to use wax or wafer seals with a plain impression. A deed may be sealed with another person's seal.
108 If that is the state of our own law, there would seem to be no warrant for insisting that official or public seals used in foreign countries take any particular form. In particular, we do not understand the law to require that such a seal bear words that identity its status or identity. If, for example, the United States of America were to adopt a seal which merely bore an eagle with no further description, or if the Republic of Indonesia chose to use a seal which bore a design but no words, those seals would nonetheless be capable of being official and/or public seals. The requirement that the seal in question purport to be of the extradition country or of a Minister, Department of State or Department or officer of the Government of that country does not impose the additional requirement that any relevant seal so describe itself on its face.
109 If a seal bearing no words is capable of being an official or public seal of a country, Department or officer for the purposes of para 19(7)(b), then a question arises as to how a court should go about the task of assessing compliance with that paragraph. Counsel for the appellant suggested in the course of argument that it might be necessary to call evidence to identify the seal. However, we consider subs 19(7) is intended to facilitate the use of documents in extradition proceedings without the need to call oral evidence to prove their authenticity.
110 The answer, in our view, lies in the statutory requirement that such a document purport to be appropriately sealed. Such purport may be drawn from the document as a whole; not necessarily from the seal alone.
111 Hill J, in Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 128 ALR 149 at 155, considered the meaning of the verb "purport" in a different context. He adopted the following definition from the Macquarie Dictionary (2nd Ed Rev.):
"1. To profess or claim: 'a document purporting to be official'.
2. To convey to the mind as the meaning of the thing intended; express; imply."
We accept that definition for present purposes. If a document appears to bear a seal, then it purports to be sealed. To satisfy the requirements of par 19(7)(b), the document must profess or claim to be sealed with an official or public seal of the required kind. We consider that a document may achieve that result by asserting in its text that a seal which appears on it is of the prescribed status and identity.
112 We turn to the documents which are presently relevant, commencing with the English bundle. As previously observed, it is signed on the front page and on the backsheet, and is bound with tape and ribbon. At some stage, there was a seal affixed to the ends of the ribbon on the backsheet. Use of one signature and one seal to authenticate "an integrated bundle of documents" was approved by the Court of Appeal of New South Wales in a similar case, Ex parte Bennett, Re Cunningham (1966) 68 SR (NSW) 15 at 23. We do not understand the present appellant to take any point concerning that method of authentication. The signatory, for the purposes of para 19(7)(a), is Noor Muhammad Aziz SH. He is identified in the certificate as "Acting Director of Criminal Law, Directorate General for Legal Affairs, Department of Justice of the Republic of Indonesia". The documents therefore purport to be signed by an officer of the government of Indonesia. As we have said, this is not disputed by the appellant. The only remaining question is as to whether the English bundle purports to be sealed with an official or public seal of the prescribed kind.
113 As already mentioned, the bundle tendered before the magistrate bore, beneath the wax seal, the words:
"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"
Thus the English bundle contains a translation of the words on the seal, identifying it as that of the Directorate General for Legal Affairs, Department of Justice of the Republic of Indonesia. There is no apparent reason why such a seal should not be described as an official or public seal of the Indonesian Department of Justice. It could equally well be described as an official or public seal of the Directorate General for Legal Affairs which is itself, we would infer, a Department of government; although possibly not in the technical sense in which the word is often used in Australia, namely to describe a section of the public service, headed by a Minister and responsible for a range of government operations.
114 We do not understand the appellant to take any point about the identity of the Department. His argument is that the words and signature on the backsheet should be seen as separate from, and so unauthenticated by, the seal. He contends that, although the seal, if interpreted in an admissible way, might authenticate all other documents in the bundle, it cannot authenticate the translation of its own wording; this wording must have its own distinct authentication.
115 This argument appears to be based upon the assumption that the typed words and signature on the backsheet were added after the document was sealed. This seems unlikely. If the seal were in place, the document could not easily have been placed in a word processor or typewriter for the purpose of adding the typed words. The words were probably added before the document was signed and sealed. In those circumstances, we infer that the whole of the bundle, including the typed words describing the wording on the seal, was authenticated by the addition of the signatures on the front page and on the backsheet and the affixation of the seal on the backsheet over the binding ribbon. In other words, the translation of the seal was probably typed in anticipation of the seal being affixed. This approach is quite common in our own legal system. A document which is to be sealed is often prepared with a "sealing clause", such as "The seal of … was hereunto affixed …". The bundle purports to be both signed by an officer of the Republic of Indonesia and sealed with an official or public seal of the relevant kind. In those circumstances, the admissibility of the English bundle, including the translation of the seal, is established.
116 As we have said, the case has been conducted upon the basis that the English bundle constitutes a translation of the Indonesian bundle. We therefore infer that the first page of the Indonesian bundle contains a certificate in Indonesian to the same effect as the certificate which appears on the front of the English bundle. Given that the case has been conducted upon the basis that the wax seals affixed to the two bundles were identical, it also follows that the translation on the backsheet of the English bundle is a translation of the wording on the seal affixed to the Indonesian bundle. That is sufficient to justify the receipt in evidence of that bundle, given that signing is not disputed.
117 Had it not been accepted that the wording on the wax seals was the same in each case, it may have been arguable that the same result would follow, but for different reasons. In the absence of a translation of the words on the seal affixed to the Indonesian bundle, it might have been reasonable to infer from the fact that it was signed by Noor Muhammad Aziz SH, that he had also sealed it. A court might well infer that it was his official seal, that is a seal appropriate to his office in the Indonesian government. It is not necessary to decide that matter.