Rahardja v The Republic of Indonesia [2000] FCA 639 (16 May 2000)

Last Updated: 16 May 2000

FEDERAL COURT OF AUSTRALIA

Rahardja v The Republic of Indonesia [2000] FCA 639

EXTRADITION - whether there were "substantial grounds for believing that there is an extradition objection" within the meaning of subs 19(2) of the Extradition Act 1999 (Cth) - whether applicant's trial or punishment may be prejudiced on the ground of his race - whether evidence of general judicial corruption provides substantial grounds for an extradition objection - whether generalised evidence of racism in society and government provides substantial grounds for an extradition objection

EXTRADITION - whether supporting documents were duly authenticated as required by subs 19(7) of the Extradition Act 1999 (Cth) - whether documents purported to be sealed with a public or official seal - meaning of "purport" - whether Court could determine the issue when the seal was not in English - the only evidence of the text of the seal was a translation, written on the supporting documents themselves and signed - whether supporting documents sufficient

EXTRADITION - rule of specialty - whether the statement of acts and omissions must separately state the conduct constituting each offence

WORDS & PHRASES - "purport"

Extradition Treaty Between Australia and the Republic of Indonesia done at Jakarta on 22 April 1992 Article 8(1)

Extradition Act 1988 (Cth) ss 7, 19 & 21

Federal Republic of Germany v Haddad (1990) 21 FCR 496 at 499, distinguished

McDade v United Kingdom (1999) FCA 1868 at [13-17], applied

Prabowo v Republic of Indonesia (1995) 61 FCR 258. at 268, distinguished

Rahardja v Republic of Indonesia [1999] FCA 1413 at [10-22], approved

Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538, cited

Zoeller v Republic of Germany (1989) 23 FCR 282 at 290, distinguished

HENDRA RAHARDJA v

THE REPUBLIC OF INDONESIA

N 1098 OF 1999

TAMBERLIN J

SYDNEY

16 MAY 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1098 OF 1999

BETWEEN:	HENDRA RAHARDJA APPLICANT
AND:	THE REPUBLIC OF INDONESIA RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	16 MAY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for review is dismissed.

2. The order of the Magistrate is confirmed.

3. The applicant is to pay the costs of the respondent.

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	N 1098 OF 1999

BETWEEN:	HENDRA RAHARDJA APPLICANT
AND:	THE REPUBLIC OF INDONESIA RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	16 MAY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an amended application for review of an order made by a Magistrate that the applicant is eligible for surrender to Indonesia. The applicant seeks orders that the Magistrate's orders be quashed and that he be released.

2 Section 21 of the Extradition Act 1988 (Cth) ("the Act") relevantly provides:

"Where a Magistrate ... makes an order under subsection 19(9) or (10) in relation to a person whose surrender is sought by an extradition country: [the person] may, apply to the Federal Court ... for a review of the order."

3 By subs (2) the Court may confirm the order of the Magistrate, or quash it and order the release of the person. Subsection (3) provides for an appeal to the Full Court. It is common ground that the role of the Court is to rehear the application on the evidence before the Magistrate and is not limited to "review" in the narrow sense of judicial review.

4 Australia had received an extradition request from the republic of Indonesia ("Indonesia") in respect of the applicant concerning the following namely:

* falsifying bank records contrary to Article 49(1)(a) of Indonesian Law No. 7 of 1992 on banks; and

* being a bank officer and intentionally failing to ensure that the bank did not breach Indonesian Banking Law contrary to Article 49(2)(b) of that Law.

5 The background circumstances giving rise to the charges are that the applicant was the President, and along with members of his family, the major share-holder of a bank in Jakarta ("the Bank"). The Indonesian authorities allege that during the period 1991-1996 the Bank granted loans to six family companies of the applicant. These loans exceeded the maximum legal limit of ten per cent of the Bank's capital and were not made in accordance with ordinary banking procedures. In fact the money loaned had already been withdrawn and used in advance of the loans being made by the applicant. The loans and interest were never repaid. The Bank went into liquidation on 1 November 1997 and had to pay in the order of $500 million to those holding deposit accounts with it.

6 The conduct giving rise to the offences with which the applicant is charged would constitute offences under the corresponding provisions of Australian law. The alleged conduct underlying the first offence would give rise to breaches of ss 1307, 1308(2) and 1309(1) of the Corporations Law which carry a maximum penalty of two years imprisonment. The second offence would give rise to breaches of ss 232(6) and 1317A of the Corporations Law which carry a maximum penalty in the order of five years, and to an offence against ss 158 and 175 of the Crimes Act 1914 (Cth) which carry a maximum penalty of five and ten years respectively.

The relevant legislation

7 The applicant objects to the Magistrate's decision on two main grounds, (i) that there are substantial grounds for believing there is an "extradition objection", and (ii) that the appropriate documentation has not been provided or are insufficient.

8 Relevantly the term "extradition objection" is defined by s 7 as follows:

"(7) For the purposes of this Act, there is an extradition objection in relation to an extradition offence for which the surrender of a person is sought by an extradition country if:

...

(c) on surrender to the extradition country in respect of the extradition offence, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race ..."

9 Section 19 relates to the application before the Magistrate.

"(1) Where:

...

(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;

The magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence 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; 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." (Emphasis added)

10 The expression "supporting documents" is defined in s 19(3) to mean:

* a duly authenticated warrant for arrest;

* a duly authenticated statement in writing setting out a description of, and the penalty applicable to, the offence; and

* a duly authenticated statement in writing setting out the conduct constituting the offence.

11 Subsection 6 provides that any document that is duly authenticated is admissible in the proceedings. Nothing in subs 19(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 or any State or Territory: s 19(8)

12 Subsection 19(7) concerns due authentication and provides:

"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.

...

13 Regulations were made under the Act, commencing on 21 January 1995, which declared Indonesia to be an extradition country, and which applied to the Act to Indonesia, subject the Extradition Treaty Between Australia and the Republic of Indonesia done at Jakarta on 22 April 1992 ("the Treaty").

14 In broad terms this Treaty imposes an obligation to extradite. The extraditable offences are listed in Article 2 of the Treaty. There is a requirement of dual criminality that is to say the acts to which the extradition relates must be crimes under the laws of both countries. There is also a requirement that the requesting country shall not prosecute the extradited person in respect of any offences which were not the subject of the extradition order by the extraditing country: see Article 8(1) ("the Rule of Speciality").

The proceedings below

15 The Magistrate was satisfied that the supporting documents relied on were sufficient and were duly authenticated as required by the Act. He was also satisfied that there was dual criminality and that the conduct alleged gave rise to extraditable offences with the consequences that the applicant was eligible for surrender. In relation to the extradition objection relied on which was based on ethnicity the Magistrate was not satisfied that there were substantial grounds for believing that the applicant may be prejudiced at his trial because he was Chinese. The Magistrate took into account that in order to determine this question it was necessary to speculate on future events and that he could not apply an inflexible standard such as the balance of probability. He then went on to consider in some detail the evidence of the four expert witnesses called for the applicant. Their evidence was directed to the nature and operation of the Indonesian governmental and judicial system. After considering this material he found that the system was dysfunctional and corrupt and generally in a deplorable state. The Magistrate accepted that the defendant would not receive a fair trial, but considered that this did not, of itself, amount to an extradition objection. In his view the problems with the system applied to every trial in Indonesia.

16 Whilst he was satisfied that from time to time there has been institutionalised discrimination against ethnic Chinese in Indonesia, and general hostility towards them, the Magistrate emphasised no reference had been made to any specific case which supported the proposition that an ethnic Chinese had been prejudiced at trial because of race. He considered that the case of the applicant's brother, Eddy Tunsil ("Tunsil"), did not establish prejudice for reasons of race and pointed out that after his conviction he was "allowed" to escape from detention. Further the Magistrate referred to the fact that there was no evidence that the applicant or his family had been subjected to discrimination in his business dealings in Indonesia. While there was considerable interest in the applicant's case in Indonesia, the Magistrate did not accept the conclusion of Professor Lev, one of the experts called by the applicant, that this was because of the applicant's Chinese ethnicity. Rather, he accepted the evidence of Professor Lindsey that the alleged fraud was probably the largest corporate fraud in recent Indonesian history and it was the magnitude of the alleged crime that, in the Magistrate's view created widespread interest in the case. Accordingly, the Magistrate concluded that the applicant is liable for surrender to the Republic of Indonesia. He issued a warrant and made the findings required by the Act.

Grounds of review

17 Before me the applicant contended firstly that the extradition objection, based on prejudice at trial or in the form of punishment by reason of race, had been made out and that the Magistrate had erred in making his determination to the contrary especially in circumstances where no evidence had been produced by Indonesia on this point.

18 The second submission for the applicant was that the supporting documents were not properly authenticated by seal in accordance with s 19(7) of the Act.

19 Finally, the applicant submitted that the warrants and statements of alleged conduct did not properly identify the offences for which extradition is sought.

20 I now turn to each of the submissions.

Evidence relating to extradition objection

21 Before the Magistrate the applicant adduced evidence from the four professorial "expert" witnesses which bore on the nature of the relationships between Indonesian citizens of Indonesian ethnicity and those of Chinese ethnicity. The substance of their evidence is set out below.

22 When considering an allegation that justice will not be accorded to a person under the judicial system of another country Australian courts will generally exercise some caution. As the High Court observed in Voth v Manildra Flour Mills Pty Limited [1990] HCA 55; (1990) 171 CLR 538 at 558-9:

"There are powerful policy reasons which militate against Australian Courts sitting in judgment upon the ability or willingness of the Courts of another country to accord justice to the plaintiff in the particular case. These policy considerations are not dissimilar to these which lie behind the principle of "judicial restraint or abstentian" which ordinarily precludes the Courts of this country from passing upon the public of another State: see generally Attorney-General (UK) v Heinemann Publishers Australia Pty Limited (1988) 165 CLR at 40-41." (Emphasis added)

23 Charles Coppel ("Coppel") an Associate Professor in the Department of History at the University of Melbourne was the first expert witness. He has worked in the field of Indonesian Studies since 1966, and has continued that study with a particular focus on the Chinese minority. He has a law degree and a PhD and has published widely. He maintains contact with colleagues in Indonesia. He has made several trips to Indonesia and is fluent in the Indonesian language. He has paid special attention to the position of Chinese with respect to the legal system and has authored several publications on that subject. He says that the Chinese minority is seen as being an economically strong but a politically vulnerable group. In his view in order to appreciate the present position of the Chinese in Indonesia it is necessary to understand the long history of institutionalised discrimination against Chinese in Indonesia. He says this dates back to the time of Dutch colonial rule and has continued to the present time. He states that under the 1945 Constitution the Chinese had no automatic right to citizenship and therefore no entitlement to the constitutional guarantee that all citizens would have equal rights. He referred to preferences given to indigenous applicants seeking import licences during the period of the early 1950's decade. A system then evolved known as the "Ali Baba" system in which the Chinese were required to act in partnership with an indigenous "front man" in order to conduct business. This became institutionalised particularly under President Soeharto.

24 Coppel said that there was continuing discrimination against Chinese until about 1965. During this period a large number of Chinese left Indonesia. Thereafter there were restrictions on Chinese festivals and writing, and Indonesian Chinese were put under pressure to assimilate by changing to an Indonesian name for example. Restrictions were also placed on the number of Chinese permitted to attend universities. Coppel went on to say that in many respects Chinese business thrived, but only with the assistance of influential indigenous partners. He says this gave rise to a false assumption that the wealthy were all Chinese and the poor were all Indonesians.

25 Coppel also refers to what he calls a practice of "scape goating" Chinese businessmen during the Soeharto regime. This expression is used to describe a practice where a government under attack finds a group upon whom the hostility can be deflected. In addition to "scape goating" of Chinese Coppel refers to a tolerance of anti-Chinese discrimination. Coppel noted that this pattern became more acute with the economic crisis experienced by Indonesia in late 1997. He refers in particular to "scape goating" from the Government, the army and related persons and bodies through which prominent Chinese businessmen were accused of being disloyal. Local Chinese businessmen were seen to be responsible for speculation or hoarding, or taking advantage of the economic situation. This lead to massive riots in major urban centres which although not solely anti-Chinese were directed against them. In relation to the Habibie government which came to power in mid-1998 he agrees that tolerance for the overt anti-Chinese activity of the Soeharto years diminished but said that discrimination occurred in practice. He says that sentiment continued against Chinese businessmen, who are referred to in Indonesia as "conglomerates". He says that this increased following the economic crisis of 1997. He says that there is a much stronger feeling of outrage because they are assumed to be guilty of economic crimes. He says that the applicant is a well known Chinese "conglomerate". His conclusion was that it was unlikely that the applicant would receive a fair trial. He refers to a large financial scandal in the Jakarta press concerning Bank Bali which involved allegedly large scale fraud. He concedes that he was "not on top of the full detail of all of this" nor did he have any familiarity of the persons involved. He expresses the view that as a consequence of this if an ethnic Chinses conglomerate were to be returned to Indonesia it would be seen as an opportunity by the President to show that he is vigorously pursuing matters to deflect attention from the Bank Bali scandals.

26 He agreed under cross examination that under President Habibie the situation of Chinese in general had improved with steps taken to implement human rights legislation and that there appeared to be a more sympathetic attitude to Chinese business in order to encourage repatriation of Chinese resources. He also agreed that there was an improvement in freedom of the press and a greater inclination to criticise government. He expressed some caution and noted that Indonesia's statements of intent are not necessarily matched with implementation and practice. He also expressed some doubt over the independence of the Press if they unfairly pursued a Chinese defendant and speculated that the Press might criticise the government for not pursuing a Chinese defendant with sufficient vigour. He considered that there remained a high degree of antagonism against high profile Chinese businessmen such as the applicant. He said that even moderate indigenous Indonesian leaders are very outspoken and critical of the conglomerates.

27 Although this material indicates long-standing, and to some extent institutionalised, strong resentment against the Chinese community in certain circumstances, it does not cite any specific examples of cases in relation to the trial or appellate system which demonstrates ethnic prejudice and is cast at a broad generalised level. In my view it falls far short of satisfying the threshold called for by the Act and indeed does not assist in relation to the question before the Court.

28 Another witness called by the applicant in relation to the extradition objection was Associate Professor Lindsey ("Lindsey") from the Faculty of Law at the University of Melbourne. Lindsey teaches South East Asian law and holds a PhD in Indonesian History and Politics from the University of Melbourne. He has published widely in relation to the Indonesian legal system and has advised the Indonesian government on competition law and trading. He is a regular visitor to Indonesia and is fluent in the language.

29 Lindsey's evidence was that in order to understand the operation or effect of Indonesian legislation one must look to the practical application of the laws rather than "black letter law". He emphasised the Indonesian legal system's character as a branch of the executive government. In turn this necessitates an understanding of the relevant government policy, government culture, and the historical behaviour of the government towards the judiciary.

30 Lindsey said that the notion of separation of powers is rejected in Indonesia. The judicial system is subservient to the executive government. The Supreme Court and the judicial apparatus are answerable to the President which has the effect of placing the Supreme Court and the judicial apparatus under the Minister for Justice. Accordingly the system lacks independence and the judicial system is used by the State to run politically popular trials. In regard to proposals to improve the judiciary, Lindsey said these are limited and symbolic and have not resulted in significant change.

31 Lindsey said it is public knowledge in Indonesia, without giving specific examples, that Chinese defendants are selected from a group of possible defendants in any particular transaction. He referred to the case of the applicant's brother Eddy Tunsil. Tunsil was prosecuted and convicted of high level fraud charges. Lindsey said that a number of other prominent Indonesians were also involved in the offence, including high ranking members of the government. The "selection" of Tunsil was said to fit the pattern of selecting an ethnic Chinese defendant. This is because it is politically convenient for a court to be seen as punishing an ethnic Chinese person who is regarded as a conglomerate. He uses expressions such as there being "political mileage" for the administration and being seen to punish "that sort of person"

32 Lindsey expressed the view that there was no prospect that the applicant would receive a fair trial if extradited to Indonesia. He referred to the dysfunction which he perceived in the Indonesian judicial system due to political influence and corruption and concluded that as a result "any defendant in a case involving the State is unlikely to be acquitted". He then suggested that this was particularly true for a high profile ethnically Chinese business person or conglomerate because of an anti-Chinese agenda running among members of the government, and because such "scape goating" distracts attention from corruption scandals. Further, the applicant's association with Tunsil would make him a "scape goat". Lindsey considered that it was likely he would receive an especially heavy sentence due to his Chinese ethnicity. He expressed the view that the applicant's case would be politically significant and would be covered by the media in great details. The applicant's political significance was said to arise from his status as a wealthy Chinese businessman.

33 I do not find the evidence of Lindsey to be of significant weight on the specific question for determination; which is whether as a consequence of his ethnicity the applicant would experience prejudice at his trial or have his punishment increased for ethnic reasons. Lindsey's evidence is also highly generalised and speculative. Although it sets a general background of prejudice and a non-independent, corrupt system it does not greatly advance the applicant's position in relation to the specific question for consideration.

34 A further witness called by the applicant was Associate Professor Zifcak ("Zifcak") of the School of Law at Latrobe University. Zifcak principally teaches constitutional law and human rights law. He has a PhD in Politics and Public Administration. Since 1993 Zifcak has been Deputy Chair of the Australian section of the International Commission of Jurors and has prepared reports for that body on human rights and political trials in Indonesia and made several trips to Indonesia to observe the Indonesian legal system. He has also published other works on democracy, human rights and justice in Indonesia. Zifcak's general impression is that the judges in the matters he witnessed, which were anti-subversion trials, were uninterested in hearing the defence side of the argument. In April 1998 he returned to Indonesia as a member of a delegation in relation to the independence of the judiciary with respect to human rights and political prisoners. Zifcak outlined his impression from the visit that judicial corruption was endemic and said this was acknowledged by the Minister for Justice and by senior Judges. Zifcak also outlined what needs to be done to change the Indonesian system.

35 Under cross examination Lifcak conceded that there had been some indication of a movement towards reform by the Habibie government although he had reservations about the practical effect of this. As is the case with Lindsey's evidence Zifcak's evidence does not bear specifically or directly on the question of prejudice on the ground of Chinese ethnicity at trial. Rather it serves only as general re-enforcement of the evidence of corruption and executive interference said to permeate the Indonesian judiciary.

36 The final witness called by the applicant was Professor Lev ("Lev"). Lev was formerly a Professor in the Department of Political Science at the University of Washington in the United States. He was awarded a PhD at Cornell University in 1964. His PhD was in Comparative Politics focussing principally on Indonesia and Malaysia. Lev has also written extensively on the Indonesian legal system and has studied Comparative Law in relation to South East Asia for a considerable time in the order of forty years. In the course of his research Lev interviewed extensively those who work in the system such as judges, prosecutors, police advocates, court clerks and accused persons and has seen "hundreds" of trials in Indonesia. Similarly to the other witnesses called by the applicant, Lev referred to the historic growth of corruption and dysfunction in the Indonesian legal system. He referred generally to politically expedient decisions being provided where necessary and could only recall one political trial since 1978 where the accused had been acquitted. Money, more than legal argument, generally determine the outcome of proceedings.

37 When he was referred to the position of the ethnic Chinese within Indonesia, and the applicant's case in particular, Lev gave evidence broadly consistent with Coppel. Particularly he supported Coppel's view in relation to the current and historical "scape goating" of the Ethnic Chinese and the tendency of the state to punish them for political reasons. He agreed with Coppel that hostility and discrimination against the Chinese minority was still institutionalised in Indonesia today. He also agreed with Zifcak's observations in relation to anti-subversion trials. Further he said that any trial of the applicant in Indonesia would be subject to the same types of defects. An accused such as the applicant would be denied an independent assessment of any evidence he might call to counter the allegations against him. Lev asserted that he could not imagine, at the present time, that any panel of judges would seriously consider evidence in support of an acquittal even if the evidence were overwhelming. Lev believed that if the applicant's ethnicity, and the prejudice against the ethnic Chinese conglomerates were taken into account, the applicant's case would be prejudiced. He said, importantly, that while being close to those in power conferred some protection, the applicant's case would be improved if he was an indigenous Indonesian.

38 Lev also referred to the case of Eddie Tunsil and expressed the view that his ethnicity was "very helpful" to the government, and that this affected the way he was dealt with. Under cross examination he could give no example, apart from his allegations in the Tunsil case, of an ethnic Chinese who had been prosecuted since the current economic crisis began in 1997, despite the alleged practice of "scape goating" following the banking and economic collapse. Nor could he recall any case in Indonesian legal history where anybody, be they ethnic Chinese or indigenous Indonesian, had been charged with a fraud of this magnitude. Further, when pressed, Lev's knowledge of the Tunsil case, the facts and reasons for conviction, were very vague and uncertain.

39 I note that Lev agreed with Counsel that five indigenous Indonesians were charged in the Tunsil affair but he he did not "have the slightest idea" what happened to them. Lev said that it was not true that ethnic Indonesians were not charged and tried but they were not paid as much attention as an ethnic Chinese. He also accepted that Tunsil was able to buy his way out of goal. Although he refers to the Tunsil case he concedes that he did not follow the case very carefully and that it was not a case in respect of which he did any special research. Nor did he know what the evidence the government held against Tunsil. He referred to a prominent Indonesian, Admiral Sudomo, who was not prosecuted however he had no material to indicate that Admiral Sudomo was involved or guilty. In my view the evidence of Professor Lev does not advance the applicant's case.

40 In this case it is important not to lose sight of the specific question for determination. That is, are there substantial grounds for believing that the applicant, taking into account all the circumstances, including his ethnicity, the judicial and social system in Indonesia, and the magnitude of his alleged crime, may be prejudiced or punished or otherwise adversely differentially treated by reason of his Chinese ethnicity. Despite the voluminous evidence in relation to the social and longstanding culture of discrimination against ethnic Chinese in Indonesia, that specific question was not adequately addressed by the experts in the evidence. I do not think there is any substantial evidence that this applicant may be prejudiced at his trial on the ground of his Chinese ethnicity, or would be treated any differently from any other Indonesian accused of similar crimes.

41 Professor Lev expressed the view that the entire Supreme Court should be pensioned off and those Judges of the Supreme Court who are in fact capable and honest should be reappointed, and new judges should be appointed from outside the judicial system. This presupposes that there are a number of judges who should be reappointed and who are in fact capable and honest. It seems to cut against the broad and somewhat extreme position advanced by the four witnesses that the whole system was dysfunctional and it would be impossible to obtain a satisfactory trial uninfected by ethnic considerations

42 It is true that no evidence was led by the respondent to counter the evidence given by the applicant's four witnesses despite instructions being obtained from time to time during the course of cross examination by Counsel for Indonesia. However this does not require that this evidence of the applicant should be accepted as determining the question. The onus of establishing an extradition objection is on the applicant. For the reasons given above I consider that the assertions by the expert witnesses are not of sufficient substance in this case to make good the applicant's contention.

Authentication

43 The applicant submits that the supporting documents have not been "duly authenticated" in accordance with s 19(7) of the Act and were therefore inadmissible pursuant to s 19(6) of the Act.

44 I have already considered this aspect of the matter on an interlocutory basis in my earlier decision on the bail application: Rahardja v Republic of Indonesia [1999] FCA 1413 at [10-22]. There I concluded that there was a reasonable argument to the effect that the documents had been duly authenticated.

45 Relevantly, section 19(7) sets out two requirements which must be satisfied in order for documents to be "duly authenticated". First, they must purport to be signed or certified by a judge, magistrate or officer of Indonesia. Second, they must be purport to be sealed with an official or public seal. An "official" or "public" seal must be a seal of the extradition country or of a Minister, Department of State, or Department or Officer of the Government of the extradition country. In the present case the supporting documents consist of one bundle in the Indonesian language and another bundle in English, said to be a translation of the Indonesian bundle. I will refer to the latter as the English translation. A yellow ribbon binds all the pages of each bundle and is then sealed with a wax seal. The seal is not legible and has deteriorated considerably.

46 In my earlier judgment I referred to the reasons of Hill J in Prabowo v Republic of Indonesia (1995) 61 FCR 258. In that case his Honour was concerned with a seal where the language on the seal could not be read. His Honour said, at 268:

"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."

47 His Honour concluded in that case that the documents had not been authenticated. He said at 270-271:

"Extradition is a very serious matter and involves the liberty of the subject. Thus strict compliance with the formalities prescribed by Parliament will be essential. It is not as if it would have been difficult to comply in the present case with s 19(7). All that needed to have happened was that a translator give evidence on oath as to what the seal purports to be."

48 The applicant relies on the judgment in that case to support the proposition that the documents in the present case had not been authenticated. The applicant also refers to the decision of the Full Court in Zoeller v Republic of Germany (1989) 23 FCR 282 at 290 where the Court said:

"While a document duly authenticated under s 19(7) is admissible in evidence it can only be acted on if it is understood. For a Tribunal to act upon the document, applying its own understanding of the foreign language uncommunicated to the parties would involve an abuse of natural justice." (Emphasis added)

49 In the later case of Federal Republic of Germany v Haddad (1990) 21 FCR 496 at 499 the Full Court said:

"We have ... 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."

50 In the present case there is no certificate or affidavit of any translation of the wording on the seal which as I have indicated is broken and indecipherable.

51 In my view, however, those cases are distinguishable because the documents on their face did not contain a translation or notation as to the meaning of the language on the seal. I note that under s 19(7)(h) it is the document that must purport to be authenticated by a seal of a certain type. There is no express requirement as to what must appear on the face of the seal. In the present case on the English document there appears below the broken illegible seal the words:

"Translation of red seal:

`Directorate General for Legal Affairs,

Department of Justices Republic of Indonesia.'

JAKARTA, 24 June 1999

Ag. DIRECTOR OF CRIMINAL LAW

(signature)

NOOR MUHAMMAD AZIZ

REG NO. 040033020"

52 The expression "purport" is a term which refers to the impression or message conveyed by a particular writing or sign. In the Macquarie Dictionary, 2^nd ed, the expression "purport" is defined to include among its meanings the following:

"(b) Profess to be or do; be intended to seem, appear ostensibly to be"

53 In my view the English document satisfied s 19(7)(b) because when it was presented to the Court the red seal had clearly been affixed and the translation was present alongside the seal. Accordingly, on its face the English document does purport, in the sense of professing, to be sealed with the seal of the Directorate General for Legal Affairs of the Department of Justice of the Republic of Indonesia. The translation is in English and can be understood. It is placed above the signature of the Director. There is no evidence to the contrary. While it is true that there is no evidence as to when the translation was placed on the English document this does not affect what the English translation purports to say. The translation has been properly authenticated and I reject the submissions of the applicant on this point.

Insufficiency

54 The next matter raised concerns the alleged insufficiency of the supporting documents. The applicants submits that in order to render a person eligible for surrender s 19(2)(a) requires that the "supporting" documents in relation to the "offence" must be produced. These documents are defined in s 19(3). This section requires the production of a warrant or duly authenticated copy of the warrant for the "arrest of the person for the offence". An additional requirement under s 19(3)(c)(ii) is the provision of "a duly authenticated statement in writing setting out the conduct constituting the offence for which extradition is sought." The submission developed on this wording is that the "offence" has not been properly identified in the documents. In support of this argument attention is drawn to Article 8 of the Treaty, which when read with s 22 of the Act, requires that a person extradited shall not be detained for any offence committed before the extradition other than the offence for which the extradition was granted. It is said that proper identification of the offence for which extradition is sought is necessary to ensure that his provision is compiled with. This distinction is said to be separate from that of establishing dual criminality.

55 The warrants relate to an offence under the Indonesian Banking Law. With respect to the first warrant it is said that neither the date, place or time of the alleged offence is specified, nor is the particular conduct from which it can be discerned how the warrant relates to the conduct alleged in the Statement of Acts and Omissions. It is said an examination of the Statement of Acts and Omissions does not assist the respondent because although it purports to allege one offence it in fact discloses three separate offences committed on three separate dates. It is also said that the language used in the warrant improperly alleges two offences under Article 49 cl 1(a) of the Indonesian Law. In relation to the second warrant it is said that it is similarly defective. Further in respect of the offence in the second warrant it is said that the wording failed to specify which Indonesian Banking Law the Bank is alleged to have contravened.

56 It is therefore submitted that the warrants and statements of alleged conduct failed to identify the "offence" for which the extradition is sought with sufficient precision. It is said that it is unclear which offences ground the two warrants and there is doubt as to the basis on which the request for extradition has been made. This amounts to non-compliance with the requirements for supporting documents under s 19(2)(a).

57 In my view there is no substance in these submissions. Whether a s 19(3)(c)(ii) statement adequately sets out the conduct constituting the offence is a matter of practical judgment: see McDade v United Kingdom (1999) FCA 1868 at par 13-17. In this case the conduct is sufficiently identified. There is no requirement that there should be a separate statement of the conduct constituting each offence.

58 The contention that the offences are duplicitous is a matter for Indonesian law and is not a matter for this Court.

59 As to Article 8 of the Treaty it is to be noted that this imposes an obligation on the requesting state and does not operate as a constraint on the extradition of the person to that state. As Counsel for Indonesia submits this is a matter for the Indonesian authorities.

Conclusion

60 In this matter the extradition objection in my view has not been made out on the evidence presented to the Court. There is no substance in the submissions either as to insufficiency or the authenticity of the supporting documents. I therefore consider that the orders made by the learned Magistrate should be confirmed.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated: 16 May 2000

Counsel for the Applicant:	T Game SC and D Jordan
Solicitor for the Applicant:	Ron Kessels
Counsel for the Respondent:	P Roberts SC and T Reilly
Solicitor for the Respondent:	Director of Public Prosecutions (Commonwealth)
Date of Hearing:	28 and 29 March 2000
Date of Judgment:	15 May 2000