Subagio Lagaida Prabowo v Republic of Indonesia & Anor [1997] FCA 11 (22 January 1997)

CATCHWORDS

EXTRADITION - proceedings to determine eligibility for surrender - admissibility of "supporting documents" signed by non-judicial officer of extradition country - dual criminality - whether equivalent conduct would have constituted extradition offence in relation to the part of Australia where the proceedings are being conducted.

Extradition Act 1988 , ss 5, 6, 11(1)(a), (1C) and (6), 19(2)(c), (3)(a) and (c), (7).

Director of Public Prosecutions (Cth) v Kainhofer 1995 185 CLR 528

Prabowo v Republic of Indonesia (1995) 61 FCR 258

SUBAGIO LAGAIDA PRABOWO v REPUBLIC OF INDONESIA and BOYD DOMINIC CLEARY

NG 177 of 1996

Coram: Whitlam J

Place: Sydney

Date: 22 January 1997

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) NG 177 of 1996

)

GENERAL DIVISION )

SUBAGIO LAGAIDA

PRABOWO

Applicant

REPUBLIC OF INDONESIA

BOYD DOMINIC CLEARY

Respondents

Coram: Whitlam J

Place: Sydney

Date: 22 January 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The order of the second respondent is confirmed.

2. The applicant pay the respondents' costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) NG 177 of 1996

)

GENERAL DIVISION )

SUBAGIO LAGAIDA

PRABOWO

Applicant

REPUBLIC OF INDONESIA

BOYD DOMINIC CLEARY

Respondents

Coram: Whitlam J

Place: Sydney

Date: 22 January 1997

REASONS FOR JUDGMENT

This is an application under s 21 of the Extradition Act 1988 ("the Act") for review of an order made in Sydney by a magistrate under s 19(9) of the Act. The magistrate (who is the second respondent) determined that the applicant, Subagio Lagaida Prabowo, was eligible for surrender to the Republic of Indonesia ("Indonesia") in relation to the extradition offences specified in a notice given by the Attorney-General under s 16 of the Act.

Relevantly, the Attorney-General's notice stated:

"in respect of an extradition request in Diplomatic Note No. 22/PX/I/96/2g of 12 January 1996 from the Republic of Indonesia, an extradition country, in relation to Subagio Lagaida Prabowo, I am of the opinion:

(i) that Subagio Lagaida Prabowo is an extraditable person for the purposes of the Extradition Act 1988 in relation to that country; and

(ii) that, if conduct equivalent to the conduct of Subagio Lagaida Prabowo constituting the following extradition offences, namely:

. embezzlement contrary to Article 372 of the Penal Code of Indonesia;

. fraud contrary to Article 378 of the Penal Code of Indonesia;

. forgery contrary to Article 263 of the Penal Code of Indonesia; and

. failure to record a banking transaction contrary to Article 49(1) of the Indonesian Law No. 7 of 1992,

for which surrender of Subagio Lagaida Prabowo is sought, had taken place in Australia at the time at which the extradition request was received, the equivalent conduct would have constituted extradition offences in relation to Australia;".

Section 19 of the Act provides:

"19. (1) Where:

(a) a person is on remand under section 15;

(b) the Attorney-General has given a notice under subsection 16(1) in relation to the person;

(c) an application is made to a magistrate by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and

(d) the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;

the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.

(2) For the purposes of subsection (1), 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;

(b) if the offence is an offence of which the person has been convicted - such duly authenticated documents as provide evidence of:

(i) the conviction;

(ii) the sentence imposed or the intention to impose a sentence; and

(iii) the extent to which a sentence imposed has not been carried out; and

(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 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) 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).

(8) Nothing in subsection (6) prevents the proof of any matter or the admission of any document in the proceedings in accordance with any other law of the Commonwealth or any law of a State or Territory.

(9) Where, in the proceedings, the magistrate determines that the person is eligible for surrender to the extradition country in relation to the extradition offence or one or more of the extradition offences, the magistrate shall:

(a) by warrant in the statutory form, order that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22(5);

(b) inform the person that he or she may, within 15 days after the day on which the order in the warrant is made, seek a review of the order under subsection 21(1); and

(c) record in writing the extradition offence or extradition offences in relation to which the magistrate has determined that the person is eligible for surrender and make a copy of the record available to the person and the Attorney-General.

(10) Where, in the proceedings, the magistrate determines that the person is not, in relation to any extradition offence, eligible for surrender to the extradition country seeking surrender, the magistrate shall:

(a) order that the person be released; and

(b) advise the Attorney-General in writing of the order and of the magistrate's reasons for determining that the person is not eligible for surrender."

The applicant seeks to have the s 19 order quashed on two grounds. First, it is submitted that the documents produced to the magistrate for the purposes of pars 19(3)(a) and (c) were not duly authenticated in accordance with subs 19(7). Secondly, it is said that the last offence specified in the Attorney-General's notice is not an extradition offence.

In this case each of the warrants and statements admitted in the proceedings purports to be signed by an Indonesian police officer. The applicant submits that such an officer is not an "officer" of the type required by par 19(7)(a), who must be a judicial officer or officer of a court. This submission was made in an earlier case in respect of the same warrants and rejected by Hill J: Prabowo v Republic of Indonesia (1995) 61 FCR 258 at 263-268.

In that case the application for review succeeded on other grounds. The applicant submits, therefore, that Hill J's observations on the meaning of "officer" in par 19(7)(a) of the Act were made obiter. I cannot accept that submission. Alternatively, it is submitted that, as a matter of comity, I should not follow his Honour's decision because it is clearly wrong. (There is no suggestion that Hill J did not receive "full argument" on this point: see In re Saunders (A bankrupt) [1996] 3 WLR 473.)

Counsel for the applicant restate the contextual argument recorded by Hill J in Prabowo at 264. They refine the "dual authentication" submission by pointing out that, whilst authentication under par 19(7)(b) may not require intervention by an administrative officer (as held by Hill J at 265), this does not lead to the conclusion that judicial signature or certification is not necessary under par 19(7)(a). Counsel emphasize (as Hill J notes at 266) that the character of the certifying officer was not considered by the New South Wales Court of Appeal in Ex parte Bennett; Re Cunningham (1967) 68 SR (NSW) 15. They also draw attention to the fact that in R v Bow Street Magistrates' Court, Ex parte Van der Holst (1985) 83 Cr App R 114 the treaty provision there under consideration by the Divisional Court (at 125) expressly provided for authentication of warrants or statements "by being sealed with the official seal of the Minister for Justice, or some other Minister of State of the Netherlands". (This requirement was said to be fundamentally different to that of par 19(7)(b). Yet the treaty provision also permitted authentication in other ways, and Lloyd LJ did not rely at all on the terms of such a provision in construing the meaning of an "officer of the Netherlands" who might sign a warrant.) Finally, counsel take issue with the observation of Hill J (at 267) that "it would often be inappropriate for a judicial officer to sign or certify" an arrest warrant where a "person has merely been charged with an offence". They point out that both in Australia and in other countries judicial officers issue arrest warrants.

Overarching the textual argument is the basic submission put on behalf of the applicant that judicial involvement in an extradition country is required by the Act in order to ensure the probity of the extradition process. I should say at once that, of course, I do accept that under s 19 a warrant issued by an extradition country for the arrest of a person who is accused, and has not been convicted, of an extradition offence may be signed by a judge or magistrate in the extradition country. However, given the great variety of functions performed by judges and magistrates in other countries and of the terms and conditions of their appointment and tenure, the Act is not, in my opinion, predicated on any separation of judicial and executive functions, such as that implicit in the Australian Constitution in relation to the exercise of federal judicial power: Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 70 ALJR 814. I respectfully agree with Hill J that par 19(7)(a) does not restrict the category of officers entitled to sign or certify supporting documents to judicial officers. The first ground of challenge accordingly fails.

Indonesia was declared to be an extradition country for the purposes of the Act by the Extradition (Republic of Indonesia) Regulations ("the Regulations"), which also provide that the Act applies in relation to Indonesia subject to the extradition treaty ("the Treaty") which is set out in the Schedule to the Regulations. Such a provision is authorised by s 11 of the Act, which relevantly provides:

"11. (1) The regulations may:

(a) state that this Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country, being a treaty a copy of which is set out in the regulations;

...

(1C) For the purposes of subsections (1) and (1A), the limitations, conditions, exceptions or qualifications that are necessary to give effect to a treaty may be expressed in the form that this Act applies to the country concerned subject to that treaty."

Extraditable offences are described in Article 2 of the Treaty. The applicant submits that contravention of Article 49(1) of the Indonesian Law No. 7 of 1992 is not such an offence.

The material before the magistrate included an English translation of Article 49(1), as well as a statement in English of the conduct constituting the offence. It was common ground that, if equivalent conduct had taken place in New South Wales in January 1996, it would have constituted an offence under s 158 or s 175 of the Crimes Act 1900 (NSW).

Counsel for Indonesia submits that par 19(2)(c) of the Act only requires that either one of the New South Wales offences be an extradition offence. Relevantly, s 5 of the Act defines that expression as follows:

"5. In this Act, unless the contrary intention appears:

...

"extradition offence" means:

(a) in relation to a country other than Australia - an offence against a law of the country;

(i) for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months; or

(ii) if the offence does not carry a penalty under the law of the country - the conduct constituting which is, under an extradition treaty in relation to the country, required to be treated as an offence for which the surrender of persons is permitted by the country and Australia; or

(b) in relation to Australia or a part of Australia - an offence against a law of Australia, or a law in force in the part of Australia, for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months;"

Each of the New South Wales offences meets par (b) of this definition. Counsel for Indonesia relies also upon subs 11(6) of the Act, which relevantly provides:

"(6) For the purpose of determining under subsection 19(1) whether a person is eligible for surrender in relation to an extradition offence for which surrender of the person is sought by an extradition country, no limitation, condition, qualification or exception otherwise applicable under this section ... has the effect of requiring or permitting a magistrate to be satisfied of any matter other than a matter set out in paragraph 19(2)(a), (b), (c) or (d)."

Section 6 defines an "extraditable person" for the purposes of the Act. In the present case, par (b) of that definition will have required the Attorney- General to consider whether contravention of Article 49(1) is an extradition offence in relation to Indonesia. That, in turn, will have required his consideration of par (a) of the definition of "extradition offence" in s 5 of the Act, which may arguably be modified by Article 2 of the Treaty. However, the function of a magistrate under s 19 of the Act was explained in Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528. The magistrate must proceed on the footing that the person whose surrender is sought is an extraditable person, as that matter has been considered at an anterior stage: Kainhofer at 539 and 552.

Section 11(6) of the Act shows that, so far as dual criminality is concerned, par 19(2)(c) only requires the magistrate here to be satisfied that the "equivalent conduct would have constituted an extradition offence in relation to [New South Wales]". As I have said, this is not in dispute. The s 19 magistrate is not concerned with whether that conduct constitutes an offence described in Article 2 of the Treaty. The second ground of challenge thus also fails.

The order of the magistrate will be confirmed. The applicant must pay the respondents' costs.

I certify the preceding ten pages are a true copy of the reasons for judgment herein of the Hon. Justice A.P. Whitlam

Associate:

Date: 22 January 1997

Counsel for the applicant: N.J. Williams and Jeremy Stoljar

Solicitors for the applicant: Jeffreys & Associates

Counsel for the first respondent: T.A. Game

Solicitor for the first respondent: Commonwealth Director of Public Prosecutions

Solicitor for the second respondent: I.V. Knight, Crown Solicitor

Date of hearing: 27 June 1996