RAHARDJA v THE GOVERNOR, LONG BAY HOSPITAL & ANOR [2000] NSWSC 790 | Case summary

1 HIS HONOUR: This is a matter in which, in order to do justice to the arguments of the parties, I should reserve. However, I have reached a clear view about how the application should be determined and, not only because of the exigencies on court time, in particular my own, but also because the liberty of the subject is in question, I propose to give a judgment immediately. I apologise beforehand if these reasons do not reflect the very helpful and detailed arguments which have been put to me on a difficult point. 2 The applicant arrived in Australia on 1 June 1999 from, as I take it, Indonesia. There is a bilateral extradition treaty between Indonesia and Australia capable of exiting the jurisdiction of the authorities under the Extradition Act 1988 (the Act). 3 On the day of the plaintiff's arrival, on an application made on behalf of the second defendant, the Republic of Indonesia, under s 12 of the Act, a local court magistrate, Mr Beveridge, issued a warrant for the plaintiff's arrest. That warrant was executed on 1 June 1999 by members of the Australian Federal Police and the plaintiff was taken into custody. 4 At that time there was a warrant in existence of 10 August 1998 which, on the evidence before me, was the Indonesian warrant, the existence of which was a necessary precondition for the exercise of the jurisdiction under s 12 of the Act. It is a requirement of that provision that the person is an "extraditable person". Section 6 of the Act defines what is meant by "extraditable person" as, amongst other things, a person in respect of whom a warrant is "in force for the arrest" of that person in relation to an offence or offences against the law of the extradition country. 5 For the reasons specified in a judgment of the South Jakarta State Court on 23 June 2000, in what is called pre-trial proceedings between the plaintiff and the Indonesian police, it may well be that the Indonesian warrant was not, at the time of the plaintiff's arrest, in force, as a number of requirements for execution of a warrant under Indonesian law had not been met. On 19 June 1999, a further warrant for the plaintiff's arrest, or detention, was issued in Indonesia. That warrant was attended, according to Indonesian law, by a number of conditions which, I am satisfied, were not met. This warrant is directed to a number of police officers and authorises or directs them to arrest the plaintiff and take him to "CID Headquarters in Jakarta". Having regard to the fact that at the time the plaintiff was in Australian custody, it is clear that this warrant was incapable of execution until the plaintiff was returned to Indonesia. This is the warrant which was relied on for the ensuing proceedings under s 19 of the Act. 6 On 28 June 1999 the second defendant requested that the plaintiff be extradited to Indonesia, and on 9 July 1999 the appropriate Minister signed a notice under s 16(1) of the Act, which was a necessary preceding step to the extradition jurisdiction. 7 Extradition proceedings under s 19 of the Act commenced before Mr Brian Lulham, a magistrate in Sydney, on 30 August 1999 and for a number of days thereafter. 8 On 17 September 1999, Mr Lulham ordered, pursuant to s 19(9) of the Act, that the plaintiff be committed to prison by warrant to await surrender under a surrender warrant. The warrant issued by Mr Lulham is the lawful justification relied on for the imprisonment of the plaintiff. 9 It is submitted on the plaintiff's behalf that the validity, or at least the enforceability of the Indonesian warrant, was a matter necessary to be established under s 19 of the Act before a warrant under s 19(9) could be issued. 10 Section 19(2) of the Act provides that certain "supporting documents" concerning the offence under the law of the extradition country must be produced to the magistrate. Section 19(3) defines "supporting documents" as meaning, amongst other things, "...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". A document is "duly authenticated" if it purports to be signed by certain specified foreign authorities and purports to be authenticated by oath or affirmation or official or public seal. see s 19(7)(a) and (b). 11 On the face of it, due authentication will not create out of a document which is not a warrant, a warrant within the meaning of s 19(3)(a). It has been held, however, that it is not part of a magistrate's function under s 19 of the Act to determine either the formal or substantive validity of a warrant, as such an issue would cause the magistrate to "become embroiled in such questions of fact as whether the foreign warrant had been obtained by fraud or whether the person granting it had been affected by bias", and it is not part of the intention of the legislation that the magistrate determine questions of foreign law: see Bennett v The Government of the United Kingdom, [2000] FCA 916 at 25, per Katz J, citing the Full Court of the Federal Court of Australia in Zoeller v Federal Republic of Germany (1989) 23 FCR 282. 12 Mr Walker SC for the plaintiff has submitted that this Court need not become embroiled in any question as to the content and application of Indonesian law because there is a decision of the District Court of Jakarta upon the very warrant which is here in question. I am of the view, however, that the extent and application of that decision is a matter of considerable uncertainty. 13 Counsel on both sides have called expert evidence as to Indonesian law, not only in substance but procedurally as to whether the decision in question can be the subject of reconsideration by another court, by way of appeal or some other procedure. The judgment in question itself does not follow a form which is conventional in this country and the process of legal reasoning is not altogether clear. It leaves a number of questions unmentioned including whether it was intended to declare the warrant invalid or otherwise unenforceable at least until the requirements of Indonesian law as to its mode of execution could be satisfied. 14 It follows, as it seems to me, that precisely such a determination as was said in Zoeller (1989) FCR 282 and Bennett [2000] FCA 916, to be outside the scope of a magistrate's function under s 19 of the Act must arise in this case despite the partial clarification of the issues in the judgment of the Indonesian court to which I have referred. If that is so, then, even had the point now sought to be agitated been available at the commencement of the proceedings under s 19 of the Act, the Magistrate could not have entertained it. 15 I am far from satisfied that the warrant of 19 June 1999 was invalid although I consider that it was very probably unenforceable, certainly by the time of commencement of the s 19 proceedings in Australia. I note, however, that the Act does not require for the purposes of s 19(3) that an enforceable warrant has been issued by the extradition country. This requirement might readily have been implied were it not for the fact that s 6, in defining "extraditable person", does impose such a condition. It seems to be inescapable that the omission of such a requirement in s 19(3) means that current enforceability is irrelevant. 16 As this is a matter which, at all events, arose after the s 19 proceedings had been completed and the warrant issued for the detention of the plaintiff, the effect of the decision of the Indonesian court could not be agitated as part of the review procedures provided in s 21 of the Act since the Federal Court is limited to a consideration of the material before the magistrate. This is a significant limitation in the extent of review permitted by the Act. Mr Walker SC submitted that it is this lacuna which justified, indeed required, this Court to exercise its jurisdiction to issue a writ of habeas corpus. 17 It was initially argued by Senior Counsel for the second defendant that there was no jurisdiction in this court to issue a writ of habeas corpus in respect of the plaintiff as his detention was a matter governed entirely by the Act. However, Mr Roberts SC, who appears for the Republic today, resiled from this submission and, if I might say so, correctly. I have no doubt that the Act leaves untouched the jurisdiction of this Court in relation to writs of habeas corpus. Indeed, it would be most surprising if it were otherwise the case, considering the fundamental importance of this jurisdiction as part of the structure of the rule of law in this country. An Act of Parliament would only be interpreted to exclude the jurisdiction of a court such as this in respect of habeas corpus by the clearest and most unambiguous language and the Extradition Act 1988 does not do so. The Act, therefore, simply becomes part of the material which the court must consider when dealing with an application for a writ to determine whether or not the detention of the plaintiff is lawful. 18 I have no doubt that, despite the nature of the procedures under the Act, any fundamental breach of natural justice, or rules of propriety concerning officers, certainly of the State of New South Wales, or persons who did acts in this State, could be considered by this Court upon an application for a writ. Whether such consideration could be given to events which occurred in an extradition country is an entirely different and more difficult question. 19 Assuming that the proceedings concerning the issue of the Indonesian warrants in this case might have been affected by impropriety which, if it had occurred in this State would attract the jurisdiction sought to be invoked, I am far from persuaded that on the material before me it would be appropriate to exercise such a jurisdiction. I am, amongst other things, concerned with the fact that the Jakarta court seemed to consider that the Australian authorities, and I include in this the Australian Federal Police, were the agents or arm of the Indonesian authorities. That seems to me to be fundamentally wrong. The exercise by the Australian Federal Police, and by Mr Lulham, and for that matter the Governor of the prison in which the plaintiff is held, of their various functions, occurs pursuant to law that is entirely Australian in content and an exercise by the Commonwealth, and by extension of the State of New South Wales, of its plenary sovereignty. 20 The failure to consider the significance of the extradition treaty and the Australian legislation leads me to doubt whether it was intended by the Indonesian Judge that his orders and findings should have any effect on the use of the Indonesian warrant in (or, rather, by the authorities of) this country for the purposes of extradition. I should add that even if, as I have found, Mr Lulham could not consider the effect, if any, of the unenforceability or possibly invalidity of the Indonesian warrant, it does not necessarily follow that in an appropriate case, this Court is prevented from such a consideration, or indeed any matter of foreign law which it might be necessary to determine upon an application of this kind and where such a consideration was called for. 21 I accept for the purposes of this judgment, the plaintiff's argument that the law set out in the judgment of the Jakarta court, so far at least as I understand it, accurately sets out Indonesian law. The reasons given in that judgment for unenforceability or possibly invalidity of the material warrant are not, however, such as to properly found the exercise by this Court of its jurisdiction to issue a writ of habeas corpus for the release of the plaintiff. 22 I am satisfied that the proceedings so far as the plaintiff is concerned were, in Australia, proper and lawful. It follows that I regard the warrant issued by the Magistrate as in the circumstances an appropriate answer to the question posed by the application for the writ. Accordingly, the application is rejected. 23 This is an unusual application in the sense that it has been instigated by what might fairly be called an organ of the Indonesian Government which is, itself, the second defendant. In the circumstances, I do not make an order for costs. **********

RAHARDJA v THE GOVERNOR, LONG BAY HOSPITAL & ANOR

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