Statement of conduct constituting the offence: s 19(3)(c)(ii)
61 The Magistrate concluded that the documents contain a statement of conduct constituting the offences alleged against the respondent, satisfied the requirements of s 19(3)(c)(ii) Extradition Act: at [56].
62 In Matson v United States of America [2018] FCAFC 57; (2018) 260 FCR 187 the Full Court at [54] described the requirements of the statement of conduct in s 19(3)(c)(ii) as follows:
The relevant principles in relation to the requirement in s 19(3)(c)(ii) of the Extradition Act are well-settled. The statement of the conduct that is required for the purposes of s 19(3)(c)(ii) must "lie at a level of abstraction between a formal statement of the elements of the offence, on the one hand, and an account of the evidence relied on to prove the relevant conduct, on the other": Truong v The Queen [2004] HCA 10; (2004) 223 CLR 122; (2004) 78 ALJR 473 at [29]. A bare statement of the offence will not suffice: De Bruyn v Republic of South Africa [1999] FCA 1344; (1999) 96 FCR 290 at [8]; McDade v United Kingdom [1999] FCA 1868 at [16]. The statement must speak with "sufficient specificity, clarity and coherence to serve its purpose": Griffiths v United States of America [2005] FCAFC 34; (2005) 143 FCR 182 at [52]. The requirement will not be met if the statement is "so vague and general or so disorganised that the relevant acts and omissions cannot be reasonably identified": McDade at [17]. Whether a statement satisfies the requirement is essentially "a matter for practical judgment and assessment, not for over zealousness in discerning deficiencies": Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 294.
63 It is well accepted that the statement setting out the conduct constituting the offence for the purposes of s 19(3)(c)(ii) may consist of a number of documents, and therefore it is permissible to refer to all the of the supporting documents to ascertain what that conduct is: Dutton v O'Shane [2003] FCAFC195; (2003) 132 FCR 352 at [105]; Griffiths v Untied States of America [2005] FCAFC 34; (2005) 143 FCR 182 (Griffiths) at [12], [49]-[50].
64 The respondent set out those relevant principles, which were applied by the Magistrate, the accuracy of which the applicant has not challenged.
65 As recognised in Liem at [98], the statement of conduct performs a central role in the s 19 task, being the point of the extradition process under the Extradition Act where a determination of the existence, or non-existence, of the dual criminality requirement is made. The dual criminality requirement is, in turn, the foundation for ascertaining the scope and content of the specialty assurances generally required before a person is surrendered: see s 22(3)(d).
66 This requirement is considered in a context where there is a recognition in international extradition law that countries have different domestic criminal law systems. It is for that reason that it is not necessary that the documents in question comply with the procedural and content requirements of the criminal laws of the States or the Commonwealth of Australia: Cabal (No 3) at [145]; Cabal v United Mexican States [2001] FCA 427; (2001) 108 FCR 311 at [108]. As observed by Weinberg J in Timar at [63].
It must also be recognised, however, that 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. Whether or not those documents can be said to meet the requirements of the Act is, as Gummow J observed in Wiest, [Wiest v Director of Public Prosecutions [1988] FCA 450; (1988) 23 FCR 472], a matter for practical judgment. Such documents must, in my opinion, be read fairly, and not perversely.
And see: Liem at [127].
67 The applicant's submissions on this requirement are encapsulated in [161] as follows:
There is no statement as to the acts of or the omissions of the Applicant in respect of each of the seven allegations. There is no detail or particulars as to what acts she committed or what she failed to do that make out the offences. That is in fact conceded and the excuses ought to be rejected, as that is just not a valid consideration.
68 Although this submission appears under the heading "additional documents" it reflects, at least in part, the lengthy written submission made on this ground. The applicant also repeated her submissions about the principle of legality, the Amnesty Law, the statute of limitations, and that there was no kidnapping but an arrest by a government agency carried out according to law.
69 The applicant also submitted at [133] that:
When one looks at these essentially, they are no different to what a Magistrate has to do every day when determining if in fact a matter has to be committed for trail [sic] or not. This was rejected. It is submitted it was rejected incorrectly…
70 The Magistrate concluded inter alia, at [54] that:
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 [applicant] 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.
71 As the Magistrate properly recognised, contrary to the applicant's contention, these proceedings are not committal proceeding. This is clearly explained in Zoeller where the Court discussed at 299 the changes implemented when the Extradition Act was enacted:
Following the enactment of the 1988 Act, but subject to the terms of particular extradition treaties, it was no longer necessary for there to be a proceeding along the lines of a committal to determine on facts then adduced whether there was a prima facie case. Subject to the provisions of s.11, therefore, the clear legislative scheme appearing from s.19 is that the magistrate is charged with the task of determining whether in his opinion the double criminality requirement of s.19(2)(c) is satisfied, and to put it briefly and perhaps loosely, that there is no extradition objection as defined in s.7 (see s.19(2)(d)). In so doing the person to whom the proceedings relate is not entitled to adduce, and the magistrate may not receive, evidence in support of a submission that the person did not do that which is alleged of him (s.19(7)). Thus the magistrate is confined to the material adduced on behalf of the country requesting extradition. Practically that means 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. Matters tending to go to innocence of the alleged offender are irrelevant.
72 Bearing in mind the principles referred to above, the issue was whether the Magistrate was satisfied there was a duly authenticated statement in writing setting out the conduct constituting the offence. He was so satisfied. He was correct to so find.
73 The respondent contended that a duly authenticated statement of the conduct constituting the extradition offences is produced in the following sections of the English Bundle of the extradition request: a report dated 14 August 2015 prepared by the Human Rights Programme of the Ministry of Interior and Public Safety (Interior Ministry Minute); Chilean Investigations Police Record No. 242 (Chilean Police Report); statement given by Jorgelino Del Carmen Vergara Bravo (First Bravo Statement); statement given by Jorgelino Del Carmen Vergara Bravo (Second Bravo Statement); statement given by Juan Herńan Morales Salgado (Salgado Statement); and the "Summary of the conduct alleged against Adriana Elcira Rivas Gonzalez" and "Detailed statement of the alleged conduct constituting the offence". This was accepted by the Magistrate.
74 The Magistrate at [50] recited the summary of the extradition material which appeared in Chile's first outline of submission on the basis that he found it accurately reflected the more salient points in the material. In my view it is an accurate summary of the primary aspects of that material, Chile's summary being taken directly from the extradition request (with footnote references to the source material in the extradition request), and I also adopt it.
75 I take that approach acknowledging that the applicant's counsel, in answer to questions during the hearing, did not accept the accuracy of the summary, submitting that "the description given…in the extradition material cannot be accurate because there's too many unknowns. One cannot determine whether it's accurate or not". This submission was based on what the applicant said were deficiencies in the extradition material. I note no ground of review challenges the accuracy of the summary. I do not accept the applicant's submission.
76 Before reciting the summary the Magistrate set out at [50] it is appropriate to recall that the applicant is indicted as a co-perpetrator of the offences.
Summary of conduct
[62] The central allegation against the [applicant] 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). The Chilean Police describes her as an officer in the Chilean Navy, who was one of the "security personnel" of Lautaro Brigade. It appears that she was also known as "La Chani".
DINA's function and activities
[63] The Interior Ministry Minute describes the formation of DINA as follows:
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. [footnotes omitted]
[64] The 'Brigada Lautaro' (or Lautaro Brigade) was created on 1 April 1974. Its initial mission was to provide personal security to the DINA National Director, Juan Manuel Guillermo Contreras Sepúlveda and his family. The Division had its headquarters in premises known as 'Torre No. 5' in the center of Santiago. It was commanded by Juan Herńan Morales Salgado.
[65] The [applicant] 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.
[66] In mid-1975, Lautaro Brigade moved its headquarters to premises at 8800 Simón Bolivar, which were commonly known as the "Simón Bolívar Headquarters". The Respondent is alleged to have moved with Lautaro Brigade from the Torre No 5 premises to the Simón Bolívar Headquarters.
[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. 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.
[68] The Interior Ministry Minute describes the conduct of DINA personnel at the Simón Bolívar Headquarters as follows:
… 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. [footnotes omitted]
[69] The Chilean Police Report states:
… 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:
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 [applicant] 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.
[72] It is alleged that the [applicant] 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 [applicant] 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".
[73] The [applicant] denies being a member of Lautaro Brigade, stating that "she performed secretarial and administrative duties". Nevertheless, the "depositions of all former agents who worked with [the appellant] are key to identify her as carrying out operational duties and involved in active missions inside and outside the headquarters".
[74] In this respect, the Interior Ministry Minute states:
By way of example, Jorgelino del Carmen Vergara Bravo refers to [the applicant] 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." [footnotes omitted]
The Conferencia / Episodes
[75] In relation to the Conferencia 1 Episode, the Extradition Request states:
(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):
[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:
(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 15 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.
[78] The [applicant'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:
In conclusion, [the applicant], 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.
(footnotes omitted)
77 I add, as the Magistrate did at [51], the following description in the extradition request of the Simón Bolívar Headquarters (references omitted):
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.
78 I also add, as the Magistrate did at [52], that the extradition request records that the former Dirección Nacional de Inteligencia (DINA) agent Bravo provided a list of names of DINA agents who were part of the Lautaro Brigade led by Mr Salgado, which included the applicant. Mr Bravo described when performing guard duty "I would always see detainees coming in, who were transferred mostly by" eight agents whom he named, including the applicant. The deposition by Bravo was in the context of the detention and death of Mr Lopez.
79 As noted above, the applicant's alleged role was as a co-perpetrator. The extradition request explains that term and its basis for criminal responsibility. The extradition request further explained, by reference to the offences on which extradition is sought, the difference between perpetrators and co-perpetrators in respect to Conferencia 2 [indictment 2] stated, inter alia:
…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.
80 The above is not an exhaustive summary of the statement of conduct in the extradition request.
81 The respondent submitted that it is apparent from the extradition request that the applicant's criminal responsibility as a perpetrator of the offences is said to arise as a result of her, at the relevant times: being a DINA agent at the Simón Bolívar Headquarters; being aware of the function of the Simón Bolívar Headquarters and the work performed by DINA agents at the headquarters; and actively participated in that work. That is a correct characterisation of the allegations.
82 Having considered all the material in the extradition request, the Magistrate correctly concluded that the statement of conduct is sufficient to satisfy s 19(2)(a).
83 The applicant's submission pays little, if any regard to the requirement in s 19(3)(c)(ii), as explained above at [62] ff. The applicant's submission, in so far as it repeats the submissions as to the Amnesty Law and statute of limitations, ignores the nature of this requirement, and cannot be accepted. Moreover, the applicant's submissions as to the facts (which primarily relies to the statement of Mr Salgado) do not accurately reflect a fair reading of the whole of the material contained in the extradition request. For example, the applicant's repeated submission that "at best" on the material, she was standing guard, is incorrect. As is apparent from the statement of conduct referred to above, the material reflects inter alia, that the applicant was an active DINA operative (with the duties that entails), and with specific reference made to her being observed bringing detainees into the headquarters and being present at a particular interrogation. Rather, the applicant's submissions, which includes inter alia, in respect to material which implicates her a submission that "the account is unbelievable" and relies on her denials of the offences, reflects a misunderstanding of this stage of the extradition process.
84 As to the remaining submissions, it is important to recall that the issue is not whether there could have been more detail in the extradition request as to the statement of conduct. Nor is the issue whether the material in the extradition request is sufficient to satisfy what is required for a committal for trial in Australia. Rather, it is whether, the extradition request satisfies the requirement in s 19(3)(c)(ii), as that provision has been interpreted. The statement of conduct must speak with "sufficient specificity, clarity and coherence to serve its purpose": Matson (Full Court) at [54] citing Griffiths at [52]. This requirement is to be considered in the context where the allegation is that the applicant was a co-perpetrator, such that it is unnecessary for criminal liability, as explained in the extradition request, for her to directly undertake each aspect of the conduct a particular act, to be liable for it. Rather, the applicant is liable for the acts of others. The same, of course, can be said of accessorial criminal liability in Australia. The applicant's submission fails to recognise that fact. That basis of liability necessarily undercuts much of the applicant's submission about the lack of details or particularity as to her direct conduct in the offences.
85 I do not accept the applicant's submission that there was insufficient specificity in the statement of conduct so as to prevent the Magistrate from performing the s 19 task.
86 There is no error established in the Magistrate's conclusion in respect to the requirement in s 19(2)(a). I agree that the requirements in s 19(2)(a) are satisfied.