Under Section 19 of the Extradition Act 1988 (Cth) (‘the Act’), a magistrate must determine whether a person is eligible for surrender to a foreign country. Part of this assessment includes confirming whether dual criminality exists, that is, whether the conduct for which the person’s extradition is sought would amount to an offence in both Australia and the foreign country.
In the recent case of Liem v Republic Of Indonesia [2018] FCAFC 135, the Full Court of the Federal Court, considered whether money laundering could be viewed an extraditable offence when not explicitly listed, and the task of the magistrate in assessing dual criminality.
Background to the case
The Republic of Indonesia sought the extradition of Mr Liem for charges of embezzlement and money laundering. The magistrate determined that the appellant was eligible for surrender under Section 19 of the Act, a decision which was affirmed before a single judge in the Federal Court. The applicant then appealed both decisions to the Full Court.
The appellant raised two primary issues:
- The money laundering offence had been erroneously treated as an ‘extraditable offence’, and
- The statement of conduct was deficient with respect to establishing dual criminality.
Considerations by the Full Court
Extraditable offence
Article 2(1) of Australia’s treaty with Indonesia provides a list of offences for which extradition may be granted. Money laundering is not expressly listed under this article and the appellant contended that it therefore could not be considered an extraditable offence.
In considering this, the Full Bench had regard to the purpose of the treaty, namely to “make more effective the cooperation of the two countries in the repression of crime”, and that the drafters of the treaty needed to employ terminology capable of covering the criminal law under two very different legal systems. They noted that Subsection 20 of the article combined a range of offences of a particular character including “any offence involving fraud”.
The Full Bench found that money laundering, which involves the hiding or disguising the origin or source of assets, could fairly be seen as “involving fraud”. Accordingly, it could fall within the ambit of Article 2(1)(20) and be considered an extraditable offence.
Statement of conduct
The appellant also asserted that the statement of conduct was deficient, because it does not allege, with sufficient specificity, facts which could be identified as the “hide or disguise” elements of the money laundering offence.
Under Section 19(3)(c)(ii) of the Act, a statement of the conduct must form part of the supporting documents before the Section 19 magistrate or judge. This statement of conduct must be of a “sufficient specificity, clarity and coherence in order to serve its purpose”, it cannot be so vague that the relevant acts and omission of the alleged offence cannot be identified (Matson v United States). This level of specificity is to enable the determination of the dual criminality requirement, which in turn provides the foundation for ascertaining the scope and content of the speciality assurances required before a person is surrendered.
The Full Court held that a Section 19 magistrate should delve into detail of a conduct statement, in order to compare the acts and omissions alleged with those of an Australian offence in order to satisfy the dual criminality requirement. This task must be undertaken for each of the alleged offences. In this case, though the magistrate did not undertake this task, the single judge on appeal did. Disagreeing with the appellant, the Full Court found that the conduct statement was sufficiently detailed to perform this task. Based on the authorities presented by the respondent, the Full Court then found that it is not the magistrate’s duty to examine the legal elements of the Indonesian offence, and compare these to the statement of conduct. This is a matter for the prosecuting Indonesian court.
Conclusion
In finding that money laundering was an extraditable offence, the Federal Court took an expansive approach to the interpretation of the Treaty between Australian and Indonesia. However in reaching this decision the Full Bench stated that their interpretation did not give undue weight to the interests of the contracting States as against the interests of the individual.
With respect to the statement of conduct, the Full Court found that a magistrate should thoroughly interrogate the statement in order to ensure that the facts set out could meet the elements of the equivalent Australian offence, however it is not necessary to confirm that acts in the statement of conduct would meet the alleged Indonesian offence.
