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Rahardja v The Republic of Indonesia S243/2000 [ 2001] HCATrans 660  (14 December 2001)

Sydney No S243 of 2000

B e t w e e n -

HENDRA RAHARDJA

Applicant

and

THE REPUBLIC OF INDONESIA

Respondent

Application for special leave to appeal

GLEESON CJ

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 DECEMBER 2001, AT 11.43 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MR T.A. GAME, SC and MR D. JORDAN, for the applicant. (instructed by Corrs Chamber Westgarth)

MR P. ROBERTS, SC: For the respondent, if the Court pleases, with MR T. REILLY. (instructed by the Commonwealth Director of Public Prosecutions)

GLEESON CJ: Yes, Mr Walker.

MR WALKER: Your Honours, anybody inside this country is entitled to the protection of its laws and that is especially acute when the object of the laws is to regulate the way in which one may lawfully be sent to undergo the rigours of another country's law - extradition. This case raises, in a combination which appears unprecedented, three questions arising from three different stages of the inquiries required by our Parliament to be undergone before such a large step is taken which has the effect, of course, of restricting the liberty of the person inside this country and sending the person back to the country requesting extradition for treatment in accordance with that country's legal system.

True it is that a treaty, of which your Honours are well aware, regulates the conduct as a matter of international law of the country, called the extradition country, to which the person would be returned, but in this case what is extraordinary about the third of the three points I wish to suggest to your Honours as fit for special leave is that it was common ground in the three judgments below, that is the administrative determination by the magistrate of the two judicial adjudications by Justice Tamberlin of the Full Court of the Federal Court, that the system to which the extradition warrant would commit my client is as to the administration of its justice dysfunctional; dysfunctional in elements which, in our submission, cannot but have satisfied, together with other circumstances which turned out to be common ground, the existence of an extradition objection, properly understood.

GLEESON CJ: Does that mean that nobody can get extradited to Indonesia?

MR WALKER: No, it does not, though it may mean that while so ever the justice system in Indonesia is in the state which the uncontested evidence during hearings in which the Republic was represented and could have presented evidence, while so ever the system is in that state, there must always be a difficulty so long as the other elements of an extradition objection can be made out and, understandably, and correctly so. The treaty has to do with one system giving up a person who is subject of the protection of our laws in order to undergo the rigours, that is, according to their tenor of another systems laws. The rigours of another systems laws should not and do not include, surely, the dysfunctional aspects of its administration.

Your Honours, I said there were three points and that the extradition objection is the third of those. If I may address the other two so as to address all three points in the order, as it were, that they would have emerged or do emerge in the process which my client underwent.

GLEESON CJ: Just before you leave that third point, are there concurrent findings - really at three levels, now - that your client would not be the subject of discrimination on the grounds of his race?

MR WALKER: Near enough, your Honour. There are concurrent findings that the material was not such as to require the magistrate to have been satisfied that there were substantial grounds for believing that he may be subject to that discrimination at his trial. I will come back to that question on the third of the points. The concurrency of the findings, of course, is in the usual appellate fashion, namely, three levels have looked at the same evidence and reached the same conclusion.

In order of process, and briefest of all, is what might be called the seal point. Your Honours have seen the papers. For convenience, the matter in question can be found set out on page 246 of the application book just after line 25 in paragraph 113 of their Honours' reasons. The point of course concerns the proper application of the gateway to admissibility of some very important documents, namely, the supporting documents called for under section 19(3) of the Act. Why I call them important documents is not only because they are essential in order that there may be an extradition, essential under subsection (2)(a) but also because in so far as they contain allegations with respect to conduct committed which would constitute an extradition offence, those documents contain critical matter which may not be contradicted, which is, as it were, conclusive against my client under section 19(5).

Therefore, bearing in mind that extradition is a big thing, it is not surprising that there have been rigours as to the admissibility by way of so-called due authentication imposed by our Parliament and they are imposed in familiar terms, including something as old-fashioned but current in legal understanding as a seal. The way the issue emerged, as your Honours are aware, is because resort was made to section 19(6), a facultative provision, as appears from its comparison with subsection (8) which allows for other means more familiar under the common law and the Evidence Act for proving matters and documents.

Subsection (6), of course, led to subsection (7) by way of specification of what it meant when the extradition country sought documents to be admitted on the grounds that they had been "duly authenticated". Prescriptive, strict and technical requirements are laid down in subsection (7) not subject to - and this is implicit in the reasoning of all three levels of judicial attention below in this case - any scope for flexibility or liberality.

Subsection (7)(a) is a not in contest. The documents in question did purport to be signed by a relevant officer, Noor Muhammad Aziz, however, paragraph (a) and paragraph (b) are subjoined by the conjunction "and" - cumulative requirements. Paragraph (b), as to its second alternative, was what was in question in the case. The documents in question, known as the "English bundle" in the Full Court's reasons, had to purport to be sealed with an official or public seal. The nature of the official or public seal was again laid down by Parliament in subparagraph (i), namely, the question of departmental, et cetera, status of the seal.

That matter is important only because it shows that the content lexical or iconic of the seal had to be made known to the magistrate in order for subsection (7)(b) to be complied with.

GLEESON CJ: Did the resolution of this issue turn upon the inference of fact that we see on page 248 at line 18?

MR WALKER: Completely, your Honour. That inference of fact is an inference which uses the document whose admissibility depends upon due authentication to prove matters necessary to demonstrate its due authentication.

CALLINAN J: Mr Walker, does the federal Evidence Act apply?

MR WALKER: Yes, it does but was not resorted to by the Republic.

CALLINAN J: But would it not it permit reference to the contents of the document itself to assist in the identification of the nature and, indeed, the authentication of the document?

MR WALKER: I am sorry, I cannot remember the second number, your Honour.

GUMMOW J: I do not know the relevant section, but I think there is one.

MR WALKER: It is restricted to matters under the Evidence Act where matters have to be found about, for example, a document under the Evidence Act. There is a provision whose number may come to me in a moment, your Honour, that permits the document to be looked at - 183, we think - however, that is - - -

CALLINAN J: But you say it does not apply here?

MR WALKER: Because this is a matter which is not called for under the Evidence Act. Subsection (7) is not a provision of the Evidence Act, so that it is simply a question to be adjudicated on the voir dire, as it were, in the argument about admissibility, "Is this duly authenticated?" That breaks down in this case to the simple question, "Did it purport to be sealed with an official or public seal?" As your Honour the Chief Justice identified, it was resolved against us by using the document whose admissibility depended upon due authentication to prove one of the integers of the status of having been duly authenticated, and did so not by reference to it purporting to be sealed but, as we would paraphrase the reasoning, by inferring that it had once been sealed.

GLEESON CJ: But that was because of the nature of the argument to which they were respondent, was it not? The argument was that the seal could not authenticate the translation of itself.

MR WALKER: That is right, of itself.

GLEESON CJ: Yes.

MR WALKER: Because the question was whether the document was authenticated. That broke down, relevantly, to whether the document purported to be sealed. That speaks as at the time the magistrate looks at it. It does not speak as of some anterior time to that. It is not a narrative about the document that the seal authenticates but the document.

GLEESON CJ: Now, how would you authenticate the translation of the seal?

MR WALKER: The ordinary way would be to call an interpreter which has been done in other cases. It could have been done in this case but was not done in this case. That is the first point. In our submission, it is very important because of the high seriousness of the incontestable facts which then emerge under subsection (5) by reason of the tender of those documents. Of course it is technical to adapt language used apparently against us in argument below but it is none the worse for being technical and, in our submission, it is the kind of technicality upon which extradition law in its proper and rigorous application should depend. These are treaty obligations.

The second point concerns another matter critical to the operation under the treaty system of the extradition agreement and is the specialty point concerned with the offence or offences from which a person may be extradited and is, at the end of the process, selected to be extradited.

As your Honours as aware, under section 19(9) a selection required of "one or more of the extradition offences". In this case it was clear from the material produced by the Republic by way of the statutory requirement under section 19(2) that there were two offences in question. The two offences in question both relate to banking provisions. May I take your Honours to the way in which the material emerged by which the confusion about which we complain was created. Your Honours will find, firstly, the warrants starting at page 3 and at page 4 a reference with respect to what becomes known as the first offence, about line 10, to the offence being a banking crime:

with intentionally caused a false record to be entered in the accounts and in the report, to Bank Indonesia (Indonesian Central Bank) as mentioned in the article 49 clause (1)(a) of The Indonesian Banking Law -

Your Honours will find that law in English text at page 12 of the book where one finds again the alternative and the possibilities by which that offence may be brought about. One then has to look at the conduct, because it is a system about extradition for conduct alleged to be criminal, and as your Honours appreciate, a matter not germane to this case but critical to the system, namely, dual criminality depends upon the analysis of the conduct alleged.

The statement of the conduct is to be found in the document which commences at page 7 has important prefatory or referential matter in those pages but starts the actual description of the offence at page 9, about line 29. The short point that your Honours have seen from our written outline is that when one looks at the one, two, three, four, five paragraphs under the heading "Offence 2" the following may be said: the first two paragraphs refer to what might be called "the 29 February 1996 report to the Central Bank offence" It had to do with the amount of loans to certain companies.

The third paragraph at the top of page 10 has to do with what might be called the "the 30 June 1996 public" that is press statement "offence". That has to do with, again, an amount lent, a different amount lent to the same companies. The fourth paragraph refers to a third episode, the December 1996 false record in accounts which has to do with an interest payment, with respect, again, to loans to those six companies. They are clearly three different matters.

The way in which Justice Tamberlin approached the argument about the impossibility of identifying the single offence from that material is found at 192 but does not advance matters because his Honour makes no discrimination between the three. In the Full Court there is a completely different - radically different approach taken which is discordant with the way in which the magistrate's extant order, that is the order that affects my client if he is to be sent back to Indonesia, would operate because the way in which the magistrate has dealt with matters, which your Honours could find at 171 and 200, means that it is the whole of those three episodes supposedly constituting the one offence for which he would under that heading be extradited.

When your Honours go to 235 in the Full Court, particularly, paragraph 78 at about lines 32 or so, it is clear that their Honours there, with respect, clearly accepting some merit in what we had been putting, looks at the three episodes and selects only the last "carefully and fairly", looking at the statement, selects only the last which would constitute the offence of falsifying bank records. In our submission, that is enough to demonstrate that there is confusion and imprecision in the matter about which there ought to be no room for imprecision or embarrassment with respect to a person being sent back to a dysfunctional system.

The second offence is in a somewhat different state. It appears on pages 10 and 11 of the book, the description which was put before the magistrate, and your Honours will there see that there are two so-called declaration which might be read as undertakings by my client, the first at the foot of page 10 on 21 January 1993, the second on page 11 of outline 14 on Anzac Day 1994 being undertakings or declarations to the Central Bank. But, one there finds at line 24 the apparent gravamen of the offence, namely, a loan contrary to that declaration.

One needs, however, to read it in accordance with authority in light of what appears on page 8 at about line 26 where there is an Article 11 clause 4 offence of lending more than 10 per cent of capital. The 10 per cent of a bank's capital is obviously a matter which as to its absolute sum is going to vary from time to time, depending upon the loans outstanding and the capital of the bank which is why the conclusion of the Full Court at 235 to 236 that this is a continuing offence is absolutely no answer to the confusion and imprecision argument which we relied upon.

That brings me to the last and most and most important of the matters which is the extradition offence. Your Honours are aware that in the judgment of the Full Court there are matters which are alarming about Indonesia's administration of justice contained on pages 227 and 228 to be gathered from evidence which their Honours said in paragraph 52:

was not inherently improbable -

was not contradicted and -

ought to be accepted for whatever, on a fair reading, it is worth.

One then has propositions 1 to 5 in paragraph 53 which are hair raising, together with their Honours description of the administration of justice in that country being a deplorable state. What their Honours did was to distinguish between generalised or institutionalised discrimination and the trial or punishment phase and to distinguish between discrimination generally against Chinese in the whole system, including the governmental and official system, including as to decisions to prosecute, but saying that when it came to trial everybody suffered from the same generalised dysfunctional state of the administration of justice.

CALLINAN J: When did we make our treaty with Indonesia, do you know?

MR WALKER: I am sorry, your Honour?

CALLINAN J: What is the date of the treaty with Indonesia?

MR WALKER: In 1992, I think, your Honour, and regulations were made in 1994.

CALLINAN J: Is there any evidence as to the state of the Indonesian justice system in 1994?

MR WALKER: No, but, inferentially, a lot of the material extends back from independence, your Honour.

CALLINAN J: So the Australian Executive knew about this when it made the treaty?

MR WALKER: Yes, but they knew about it in light of what the Act provides, namely, that if a person satisfies the court that there are substantial grounds for believing that there may be discrimination at his trial by reason of his race that is an extradition objection. Their Honours in the Full Court accepted that that is necessarily future, hypothetical and to a degree, speculative and, in our submission, what could not be done is simply to say that because you cannot name a single Chinese for a system that does not include reporting, to enable that, there are not substantial grounds for believing that you will be prejudiced by reason of your race when you are Chinese, official Indonesia discriminates against the Chinese, the judges respond to the Executive Government's desires and the whole trial system is corrupt and dysfunctional. May it please your Honours.

GLEESON CJ: Thank you, Mr Walker. Mr Roberts, we would just like to hear what you have to say in relation to the second of the three points that Mr Walker raised concerning the identification of the offences, the specialty issue.

MR ROBERTS: Your Honours, I am assuming, in relation to the first of the offences that the same statement was published on more than one occasion. That does not mean, we respectfully submit, that an issue of duplicity arises.

GLEESON CJ: Can I ask you this: where do we find the statutory provision that relates to the first offence?

MR ROBERTS: Section 19(3)(c).

GLEESON CJ: Where, in our materials, do we find the Indonesian law, that is....the first offence?

MR ROBERTS: The Indonesian law, I am sorry. That is page 12 of the application book. Article 49 is set out.

GLEESON CJ: So it is making a false record in the accounts.

MR ROBERTS: Yes, and the suggestion being put is that, on one reading, at least, of the material, the false record - there is more than one repetition of the false statement, in a number of different records. Your Honours, we respectfully submit that adopting a cosmopolitan approach in relation to these sorts of questions - that is a pretty narrow idea in Anglo-Australian pleading, but duplicity arises if there is a situation where the same matter has been published, therefore it is said that this could or does constitute three offences, as opposed to one.

If it is not the case in Indonesian law - they say, it is only one offence - well, we respectfully submit, so be it. If they wish to treat it as one, that is a matter for them, and that is how they treated it. But this is not a matter of duplicity, or not being able to find the offence with which the person is charged. It is clear that what he is charged is only one offence; he is only liable to one penalty. This is the gravamen of the idea, in relation to looking at the offence, to be able to locate exactly what it is and what the liability would be in the foreign country. In this instance, if they treat it as one offence, which they have, then we respectfully submit that that is not a problem that could or should have troubled the lower courts who dealt with the matter.

GLEESON CJ: So that if we look at page 10, line 30, where somebody has - the remark on the side of the page, do you see that?

MR ROBERTS: Yes.

GLEESON CJ: That is what you say is the offence against Article 49(1).

MR ROBERTS: Yes.

GLEESON CJ: Yes, and what about the other one?

MR ROBERTS: It is a similar matter in relation to offence No 2. It just has slightly different elements. But, again, the idea that is being raised by our learned friends is a similar sort of idea, that implicit within, or explicit within, that statement by the police colonel, there are two statements that may have or do fall within the ambit of the statement and, therefore, they say there are two offences, but they are treated as one.

GLEESON CJ: Where do we find the provision of the Indonesian law relating to that offence?

MR ROBERTS: Same page, 12, your Honour: Article 49(2). Inherent in that is that, as your Honours will see, the required "actions to ensure the bank's compliance". It is implicit in that that it may relate to a number of matters.

GLEESON CJ: You mean, it is the making of the loans that constituted the breach?

MR ROBERTS: Well, in relation to No 2, its failure to take the action that is required - - -

GLEESON CJ: Which was a kind of negative action. It was not to lend any more money to these six companies.

MR ROBERTS: In effect, yes. Your Honours, this is a pretty narrow point, we respectfully submit, and the Full Federal Court was correct in its interpretation that there is no duplicity issue and certainly no issue which would cause this or any other court to find that there has been a failure to comply with the extradition law. If your Honours please.

GLEESON CJ: Thank you. Mr Walker.

MR WALKER: Your Honours, as to the first, that is, offence No 1, my learned friend's point is that this is merely the repetition, on three different occasions, of the same statement. The most cursory reading of the paragraphs to which I drew your Honours' attention, starting at page 9, line 30, and finishing on page 10, line 34, will show that that simply is not the case.

GLEESON CJ: The relevant law is a law about making entries in accounts, is it not?

MR WALKER: It is, and there are three different matters. The law permits of an offence being a record in accounts, or a record in a report, or in a document, or in a business activity report, or in a bank transaction report or account; categories which were, apparently, different in Indonesian law, hence, the alternatives. We have, in so-called offence 1, three different episodes; clearly, three different kinds of statement. The first is a report to the Central Bank at a particular date; the second is a statement to the press - a financial statement, apparently published in the press, again, with different substantive content; and the third is a notation in the Bank's record about an interest repayment, where, in fact, it is protested by the would-be prosecutors that there was no credit extended. So that is the opposite of making a loan.

There are three statements, therefore, which are different in substance, as to their content, as well as different in time, as well as different in mode and audience of publication. The question arises, if my learned friend be correct and that Indonesian law should be held by your Honour interstitially from this record to regard that as constituting but the one offence: is this an offence where, unless they make out all the components of each of those three episodes, there is no conviction on anything, or, rather, as would appear from a fair and careful reading, to quote the Full Court, of the material, is it the case that each of the episodes is discrete, attracting the possible application of Article 49(1)(a) each on its own, self-contained? That being the reason, no doubt, the Full Court was driven to eliminating the first two, and isolating only the third, with no effect on the order which presently commits my client to be returned to Indonesia for trial.

GLEESON CJ: Where is the order?

MR WALKER: The order can be found in the following places. At 171, your Honours find the conclusion expressed by the learned magistrate, line 31:

I therefore determine that Hendra Rahardja is eligible for surrender to the Republic of Indonesia in relation to the Extradition Offences set out -

in the document, and your Honours have been taken to the relevant part of that document on pages 9 and 10 -

I propose to issue the warrant and make the necessary recordings -

and then, 200, something closer to the text emerges at the beginning of the Full Court's reasons, lines 31:

Mr Lulham made a determination that Mr Rahardja was eligible for surrender to the Republic of Indonesia in respect of two -

the number is important -

offences which he described as follows -

and, of course, those are taken from the warrant documents and the - - -

GLEESON CJ: The first one is, "falsifying bank records".

MR WALKER: Yes.

GLEESON CJ: Not falsifying bank reports.

MR WALKER: Yes.

GLEESON CJ: Now, that relates, as I would read it, to Article 49(1)(a), the first words.

MR WALKER: Yes, and your Honours need to go also to page 7 of the book, which is the beginning of the summary document, line 21:

he intentionally caused a false record -

And that word is picked up. It is singular there, but in Mr Lulham's order, your Honours will note that it was falsifying bank "records", in the plural -

to be entered in the accounts or in the reports, or in a document or in a business activity report -

et cetera. That is verbatim, and completely the words of 49(1)(a).

GLEESON CJ: Yes. It is not the words of a statute though.

MR WALKER: Then, when one goes back to page 4, which is the truly originating document, one simply has there at line 10:

intentionally caused a false record to be entered in the accounts and in the report, to Bank Indonesia -

a statement which certainly encompasses, in the clearest of terms, the first of the three episodes under offence 1, because that is the only one which is a report to Bank Indonesia. That is an imprecision, ambiguity and confusion between the warrant, the statement of the conduct constituting the offence, the determination by the magistrate, and the conclusion of the Full Court, which, in our submission, renders highly unsafe, for the purposes of this important international extradition system, the way in which my client is presently fated to be sent back to Indonesia.

As to the second offence, nothing that my learned friend has said indicates how it is that this becomes a continuum offence, bearing in mind that there are different dates, and it is, apparently, a question of proportion. Your Honours will have seen that, read charitably, it must be Article 11, clause 4, noted on page 8, line 29 and following, which must be the subject of the Article 49(2)(b) offence for which extradition is sought. And your Honours can see page 12 for that, because that refers to "provisions of other law applicable to the bank." The only clue as to what that other law applicable would be is 11(2), which has to do with the lending ratio.

Now, in our submission, again, the question arises: how does my client know whether every one of the matters referred to under offence 2 has to be proved, in order that any offence be proved, or whether it be enough that there was a breach after the second but not after the first declaration, or it be enough that there be a breach after the first but not the second declaration?

GLEESON CJ: Thank you, Mr Walker.

MR WALKER: May it please your Honours.

GLEESON CJ: Three points have been argued on behalf of the applicant. As to the first and third of those points, the decision of the Full Court of the Federal Court turned on the view taken of the facts of the evidence in the particular case; a view that was well open. As to the second point, the basis on which the Full Court dealt with the matter, when related to the description of the offences given by Magistrate Lulham, has not been shown to be in error.

There are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is refused.

Is there any question of costs arise?

MR ROBERTS: Yes, we ask for costs.

GLEESON CJ: Mr Walker, can you resist that?

MR WALKER: No, your Honour.

GLEESON CJ: The application is refused. The applicant must pay the respondent's costs of the application.

AT 12.18 PM THE MATTER WAS CONCLUDED