Bertran v Vanstone

legislative framework 9 Upon the arrest of a person under a PAW issued under s 12(1) of the Act, a person must, in accordance with s 15(1), be brought "as soon as practicable before a magistrate in the State or Territory in which the person is arrested". Subsections (2) and (6) of s 15 provide: (2) The person shall be remanded by a magistrate in custody, or, subject to subsection (6), on bail, for such period or periods as may be necessary for proceedings under section 18 or 19, or both, to be conducted. (6) A magistrate shall not remand a person on bail under this section unless there are special circumstances justifying such remand. Pursuant to s 16(1), the Attorney-General may, by notice in writing directed to any magistrate, state that he has received an extradition request from an extradition country in relation to a person. 10 The Extradition (United Mexican States) Regulations 1991 ("the Mexico Regulations") provide that Mexico is declared to be an extradition country: see reg 4. Regulation 5 of the Mexico Regulations provides: The Act applies in relation to Mexico subject to the Treaty on Extradition between Australia and Mexico done at Canberra on 22 June 1990 (being the treaty a copy of the English text of which is set out in the Schedule). The Treaty on Extradition between Australia and Mexico done at Canberra on 22 June 1990 ("the Treaty") is, as reg 5 indicates, set out in the Schedule to the Mexico Regulations. Article 2 of the Treaty provides that, for the purposes of the Treaty, "extraditable offences are those offences, however named, which are punishable under the laws of both Parties by a penalty no less severe than deprivation of liberty for a maximum period of at least one year". 11 Where a s 16(1) notice has been issued in relation to a person in remand under s 15 and upon certain other conditions being satisfied, s 19 of the Act provides that a 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". The other conditions are that application is made by the person or the relevant extradition country for proceedings to be conducted under s 19 and the magistrate considers that the parties have had reasonable time in which to prepare.

the magistrate's reasons for decision 12 According to an affidavit sworn by the applicant's solicitor, Mr Defteros, on 19 March 1999, the learned magistrate did not give written reasons for his decision. Mr Defteros was, however, present in Court when his worship gave his reasons and has stated on oath that the notes taken by his Articled Clerk are a correct record of what was said by the magistrate by way of reasons. The first respondent did not challenge the accuracy of those notes. There was little other evidence of what transpired before the magistrate. 13 The magistrate apparently stated his understanding of the matter for decision in the following terms: What I must determine firstly is whether special circumstances do exist in this case and if they do exist either singly or seen in their entirety they are such that they outweigh the implicit presumption in sub-section(6) that ordinarily bail ought not be granted in these circumstances. His worship went on to say: The fact that a Judge in Mexico has guaranteed the applicant his liberty, subject to certain conditions, upon his return to that country or that by definition these offences are not regarded as serious in Mexico does not in my view establish a special circumstance. … I reject the notion that there is an issue of equality of justice here. Whatever constitution[al] guarantees might be given to the applicant whilst within the jurisdiction of the Republic of Mexico that has little relevance or application in these proceedings brought under an Act whose primary purpose is to enable Australia to fulfil its obligations under extradition treaties and facilitate the return of the applicant to Mexico in custody unless special circumstances exist that would justify displacing the presumption against the granting of bail. 14 Before the magistrate, the applicant did not confine his claim that there were special circumstances justifying his remand on bail to the legal situation in Mexico. He also referred to the conditions in which he was incarcerated, the anticipated length of his incarceration, the conditions under which he met with his legal advisers and in which he was transported to and from court, as well as his conduct since his arrival in Australia. Only one of those matters amounted, in his worship's opinion, to a "special circumstance" and that was the applicant's "detention in custody for a period of time possibly approaching 12 months". That matter did not, in his worship's judgment, "overcome the presumption that bail ought not be granted". In this connection, his worship is recorded as saying: The evidence [that the applicant was trying to avoid detection by Mexican authorities] is in my view overwhelming. Not only did the applicant enter Australia and take up residence with a false passport, there is evidence of the seizure of other false passports, birth certificates and identity cards from the applicant's premises that would facilitate further "flight". There is evidence of the bribing of public officials to avoid apprehension. Moreover there is evidence the applicant had access to substantial sums of money evidenced by living expenses of approximately $300,000 per month for the applicant, Mr Cabal and their families, accessed from a company account to which the applicant was a signatory of which he was a director. Accordingly, the magistrate refused bail.

the case law 15 Applicants for bail under s 15(2) of the Act cannot succeed unless they first establish "special circumstances justifying … remand" on bail: s 15(6). That requirement is sometimes described as a "condition precedent" to an exercise by the Court of the power to remand on bail: see Kainhoffer v Director of Public Prosecutions (1993) 48 FCR 9 at 12 per Spender J. 16 The Act does not state expressly what are "special circumstances" for this purpose. In settling upon the relevant criteria by reference to which such a judgment may be made, it is, I think, necessary to consider, first, the objects of the Act, which are set out in s 3, and the purpose of subs 15(2) and subs 15(6). The explanatory memorandum which accompanied the Extradition Bill 1987, set out in Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 at 73-4, explained the "special circumstances" requirement in clause 15(6) in the following terms: "Subclause (6) provides that a person shall not be granted bail unless there are special circumstances. Such a provision is considered necessary because experience has shown that there is a very high risk of persons sought for extraditable offences absconding. In many cases the person is in Australia to avoid arrest in the country where he is alleged to have committed the offence, ie the person left the jurisdiction to avoid justice". In evaluating whether there are special circumstances shown, the first consideration is, therefore, the purpose of the special circumstances requirement, namely, to take account of "the very high risk of persons sought for extraditable offences absconding": cf Schoenmakers 30 FCR at 74 per French J; Holt v Hogan (No 1) (1993) 44 FCR 572 at 578 per Cooper J; and Kainhoffer 48 FCR at 13 per Spender J. 17 Plainly enough, the risk of absconding is not the only consideration. In Schoenmakers, French J also referred to the need to evaluate the factors relied on as constituting special circumstances (in that case, for the purpose of s 21(6)(f)(iv)) by reference to "broad community standards", including the "presumption in favour of liberty and against deprivation of liberty without just cause": 30 FCR at 75. Cooper J adopted the same approach in Holt v Hogan (No 1) 44 FCR at 579. His Honour added in that case: In considering the circumstances of a particular applicant for bail one does not exclude those circumstances which ordinarily would fall for consideration on an application for bail where a person is charged domestically for the commission of a crime in this country. All personal circumstances are taken into consideration, notwithstanding that some or all of them will again fall for consideration if special circumstances are established as a condition precedent to the exercise of a jurisdiction to grant bail. 18 Ultimately, whether any factor or group of factors will amount to "special circumstances" (when account is taken of the statutory purpose and the circumstances of the case, measured in part at least by broad community standards) will depend upon whether the relevant magistrate is satisfied that that factor or those factors justify departing from the position in the ordinary case where bail will not be granted: cf Holt v Hogan (No 1) 44 FCR at 579. As Burchett J said in Wu v Attorney-General of the Commonwealth (1997) 79 FCR 303 at 307 the expression "special circumstances" "refers to circumstances different, in some way that provides a ground for considering a grant of bail more favourably, from those of the ordinary case of a fugitive remanded in custody". See too McDade v United Kingdom (unreported, R D Nicholson J, 15 February 1999). 19 I accept, as the applicant's counsel submitted, that "special circumstances" may be demonstrated by a single factor or by a combination of factors: cf Wu 79 FCR at 307. It is unnecessary, if not impossible, to compile an exhaustive list of those circumstances which are relevantly special. The Act, in s 15(2) and s 15(6), requires the magistrate, who is charged with making the decision as to bail, to consider all the facts pertaining to any bail application, before determining whether there are special circumstances which take the case out of the ordinary and justify remand on bail: cf R v Giordano (1982) 31 SASR 241 at 243 per King CJ (with whom Zelling and Matheson JJ agreed) and Forest v Kelly (unreported, Lockhart, Ryan and Heerey JJ, 20 December 1991). A similar approach is taken in determining whether "exceptional circumstances" exist justifying a grant of bail for the purposes of ss 4 and 13 of the Bail Act 1977 (Vic): see Application of Michael Kanfouche (unreported, Smith J, 4 April 1991); Application of Matthew Thomas (unreported, Hampel J, 2 October 1996) and Application of John Moloney (unreported, Vincent J, 31 October 1990). If the relevant magistrate decides that there are such special circumstances, then it falls to him to consider whether to remand the applicant on bail and, if so, upon what terms and conditions: see Schoenmakers 30 FCR 74 per French J and Holt v Hogan (No 1) 44 FCR at 580 per Cooper J.

united states authorities 20 The applicant sought to support his case further by reference to decisions of judges of the District Court in the United States of America. These cases were In Re Gannon 27 F.2d 362 (1928), United States v Taitz 130 F.R.D. 442 (1990), In the Matter of Extradition of Nacif-Borge 829 F. Supp. 1210 (1993), In the Matter of Extradition of Rouvier 839 F. Supp. 537 (1993), In Re Extradition of Siegmund 887 F. Supp. 1383 (1995) and In the Matter of Extradition of Morales 906 F. Supp. 1368 (1995). There is apparently no legislative equivalent to s 15 (or s 21) of the Act in the United States. The federal common law rule in that country is, it seems, that bail is not ordinarily granted in extradition cases although it may be granted if special circumstances are shown and there is no risk of flight: cf Wright v Henkel 190 US 40 (1903), Salerno v US 878 F.2d 317 (9th Cir 1989), Taitz 130 FRD 442 (1990), Rouvier 839 F. Supp. 537 (1993), Siegmund 887 F. Supp. 1383 (1995) and Morales 906 F. Supp. 1368 (1995). 21 The applicant relied on the approach of the Court in Nacif-Borge and in Morales. Both cases concerned an application by a Mexican national for bail pending extradition proceedings from the United States. In Nacif-Borge, the Court held, at 1221, that the fact that bail would have been available in Mexico, had the fugitive been arrested there, was a special circumstance warranting consideration of bail pending extradition. That factor alone did not, it must be noted, constitute the sole justification for a grant of bail in that case. 22 Nacif-Borge extended the holding in Taitz in which the Court held that the fact that bail would have been available to a person in South Africa facing extradition to the United States was a special circumstance, to be considered with other special circumstances, in relation to an applicant for bail in the United States facing extradition to South Africa. (There is nothing in the present case which might show whether bail was available to a person in Mexico facing extradition to Australia.) 23 The approach favoured in Nacif-Borge was, however, rejected in Rouvier and Siegmund. The Court in Rouvier declined to accept that the availability of bail in respect of the underlying offence in the requesting country was a special circumstance justifying bail pending extradition proceedings. The Court said, at 541, that such a rule would "force courts to make searching reviews of foreign laws to determine whether bail is appropriate for a given defendant in a given country for a given offense". Subsequently, the Court in Siegmund also declined to follow the approach in Nacif-Borge and, after referring to Rouvier, wrote at 1387: "We note that an extradition treaty between sovereign nations is essentially a contract, and the concern in an international extradition case is not to mirror the internal bail practices of the requesting country, but, rather, to deliver the extraditee to that country if the conditions precedent to extradition, as set out in the treaty, are satisfied. To say that the extraditee would have been granted bail in the requesting country had he been arrested there, or that he will be granted bail once returned there, thus misses the point." That reasoning is, I think, of some assistance in considering the position in relation to the present application. 24 Siegmund is not, however, an end of the matter in the United States. In the case of Morales, which was decided some months later, the Court was persuaded by the reasoning in Taitz to hold that the entitlement of a person facing extradition to the United States to bail in Mexico was a special circumstance. So, too, was the availability of bail in Mexico in respect of the underlying offence, as held in Nacif-Borge, although the Court in Morales observed, at 1376, that the latter matter would not of itself "justify Morales' release on bail, [but] in combination with the other factors mentioned [and they were numerous], it contributes to this Court's finding 'special circumstances' justifying bail in this case". If it matters, I do not read Morales as an unqualified endorsement of Nacif-Borge and, in any event, as the first respondent pointed out, Morales was apparently decided without the Court's attention having been drawn to Rouvier and Siegmund.

challenge made by the applicant 25 There was evidence before the magistrate, in the testimony of the applicant's Mexican lawyer, Alberto Conrado Zinser Cieslik, that, under Mexican law, save in circumstances not presently relevant, bail will be granted where the relevant offence is not classified as serious. Legislation in Mexico classifies what crimes are serious for this purpose. According to Mr Zinser's evidence, the crimes referred to in the Mexican arrest warrants relating to Mr Pasini are not classified as serious and, in consequence, once in Mexico, Mr Pasini would be entitled to bail. It was not disputed that the discrimination between serious and other crimes under Mexican law is for the limited purpose of the disposition of a bail application in a Mexican court. As the first respondent noted the offences referred to in the arrest warrant of 18 January 1996 each carried a maximum penalty of seven and a half years' imprisonment, whilst the offence referred to in the arrest warrant of 29 August 1996 carried a maximum penalty of three years' imprisonment. 26 There was also evidence before the magistrate, in the testimony of Mr Zinser and Mr De La Guardia, legal attache for Mexico, as to the effect of the orders made in Mexico on 20 January and 23 February 1999. That evidence was to the effect that the orders of 20 January and 23 February have no effect in relation to Mr Pasini while he remains outside Mexico. On entry into Mexico, a stay of execution under the Mexican arrest warrants would take effect, although breach of any of the conditions of the stay would result in suspension being revoked. The thrust of the evidence would seem to be that Mr Pasini would not be subject to arrest under the warrants at the moment he entered Mexico. Instead, pursuant to the orders, he would have two days in which to appear before the criminal judge before whom his case is listed, in order to submit his preparatory deposition. He would have the additional time specified in the orders to comply with the balance of the stay conditions. At the same time, counsel for Mr Pasini conceded, for present purposes, that the "provisional stays were not intended to prevent [his] extradition". 27 The case presented by Mr Pasini's counsel is that the magistrate failed to have proper regard to broad community standards, as he was required to do, when he failed to hold that (1) Mr Pasini's entitlement to bail in Mexico and (2) the stay orders were, or amounted to, special circumstances, for the purpose of s 15(6) of the Act. In so doing, counsel submitted, the magistrate misconstrued the relevant provisions and failed to ask himself the correct question. Alternatively, if his worship did have regard to community standards, he so misapplied the criterion that his exercise of discretion wholly miscarried. Community standards were, so counsel said, offended by the fact that Mr Pasini was refused bail pending the hearing in Australia of the surrender proceedings under s 19 of the Act, whilst he would be entitled to bail if he were in Mexico. Counsel submitted further that community standards were similarly offended by the fact that Mr Pasini was denied bail, notwithstanding that the execution of the arrest warrants in Mexico had been stayed. Had the magistrate properly instructed himself, so the argument ran, he would necessarily have found that Mr Pasini's entitlement to bail in Mexico and the stay orders constituted special circumstances, either by themselves or in conjunction with the other facts pertaining to Mr Pasini's case. 28 Counsel for the first respondent submitted in turn that (1) the Court had no jurisdiction to grant the relief sought; (2) the claim was not justiciable (or there was no cause of action); and (3) the circumstances in question were not special circumstances, alternatively it was open to the magistrate to find that they were not. 29 After the hearing of this matter on 15 April 1999 (the applicant's solicitors having properly requested the earliest possible date, the applicant being held in prison), applicant's counsel submitted supplementary written submissions concerning the matter of jurisdiction. Leave was sought, in paragraph 1, to make them. The respondents, by letter dated 20 April 1999, submitted that it was inappropriate for further submissions to be made. The applicant replied, by letter dated 21 April 1999. 30 As it turns out, the conclusion I have reached with respect to the special circumstances requirement in s 15(6) makes it unnecessary to deal with the matter of jurisdiction and justiciability and I express no opinion about those issues. did the magistrate misconstrue subsections 15(2) and 15(6)? 31 I accept that, in considering a bail application under s 15(2) of the Act, a magistrate is called upon to consider, amongst other things, the particular circumstances of the applicant by reference to what may be described as "broad community standards". I also accept that a grant of bail under s 15(2) is not, when made according to law, inconsistent with Australia's obligations under the Treaty, performance of which is ensured by the Act and the Regulations made pursuant to it. The Act itself provides for a person facing surrender proceedings to be released on bail (although the special circumstances requirement in s 15(6) must first be met): cf s 21(6)(f)(iv). 32 I do not, however, accept the applicant's submission that the magistrate misconstrued the relevant statutory provisions and failed to ask himself the correct question, or that his worship so misapplied a relevant criterion that his exercise of discretion wholly miscarried. I cannot discern, in the magistrate's reasons, any failure to direct himself to the relevant criteria, including what might be called broad community standards. On the contrary, in rejecting the proposition that the circumstances of the applicant's case gave rise to "an issue of equality of justice", the magistrate was, it seems to me, directing his mind to the very proposition which the applicant has advanced in this Court. That is, that it offends community standards to deny the applicant bail when he would, or most probably would, be at liberty in Mexico. Further, having rejected that proposition, his worship went on to consider the other matters relied upon by the applicant (mentioned earlier). Those matters (which, it will be recalled, included the conditions and anticipated period of the applicant's incarceration) were covered by and relevant to the criterion of broad community standards. I think it tolerably clear that the magistrate was aware of the test he had to apply. The magistrate considered each of the matters relied upon by applicant and measured them against relevant criteria. 33 The only basis for a conclusion that the magistrate misdirected himself is (1) the absence of any express reference to broad community standards in his reasons, as recorded in the notes of Mr Defteros's Articled Clerk; (2) (as the applicant would have it) his worship's rejection of the two circumstances presently in question; and (3) the absence of any express reference to those circumstances being considered in the aggregate or with reference to the general discretion which fell to be exercised. 34 I do not accept that error is shown simply because the magistrate failed to use the same language as French J in Schoenmakers. It was unnecessary for him to do so. It was enough that his reasons disclosed, as I think they did, that, in making his decision, he directed his mind to the correct question and relevant criteria. 35 Secondly, I reject the proposition that the magistrate was bound to find that an entitlement to bail in Mexico in respect of the underlying offences, or that orders in the nature of the stay orders, established special circumstances. 36 If it matters, I am of the view that, generally speaking, an entitlement to bail of the kind relied on by Mr Pasini would not constitute a special circumstance justifying remand on bail under s 15(2) of the Act. The Commonwealth Parliament has determined to meet its obligations to Mexico under the Treaty by means of the regime established by the Act and the Regulations made under it. That much is reflected in the principal objects of the Act which include enabling Australia to carry out its obligations under extradition treaties and providing for proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited: s 3 of the Act. In the context of extradition proceedings, a primary concern is to ensure that a person eligible to be extradited is delivered to the requesting country, providing the requirements of the Act and Regulations made under it are satisfied. In this case, Mexico has requested Mr Pasini's return to Mexico in order that he can stand trial. The fact that he would be entitled to bail in Mexico where he would be subject to the law of Mexico and the jurisdiction of its courts is, it seems to me, of limited relevance to his application, under s 15(2), for bail in Australia. Similarly, it seems to me to be of limited relevance to the matters raised by subs 15(2) and subs 15(6) that, if he were to return to Mexico, then he would enjoy the benefit of a stay of execution of the arrest warrants (assuming he complied with the conditions of the stay orders). The fact is that Mr Pasini is not in Mexico and is resisting his return to that country where he is required to stand trial. 37 It is unnecessary to decide whether, and, if so, when, an entitlement to bail in an extradition country in respect of an extraditable offence, or stay orders like those in this case, would combine with other factors to constitute "special circumstances" for the purpose of s 15(6) of the Act. An occasion might arise when, for example, stay orders of the kind made in Mexico in Mr Pasini's case would, when considered with other relevant matters, amount to such circumstances. Whether, in a given case, special circumstances are established depends on the entirety of the facts apposite to the application. 38 Comparison with decisions in the United States, which the applicant invited the Court to make, showed that there was no unanimity in that country on the principal issue raised in this case. The best that might be said was that the availability of bail in respect of underlying offences might contribute to a finding of special circumstances: see Morales. The reasoning in Siegmund and Rouvier would seem to foreclose even that possibility. 39 Subject to the availability of judicial review (as to which I say nothing) it is for the magistrate to whom application under s 15(2) of the Act is made to determine whether or not special circumstances are established for the purpose of s 15(6) of the Act. The Act commits that determination to him. In so doing, the magistrate has necessarily to evaluate all the factors apposite to the application by reference to the criteria to which I have referred. It was, I think, open to his worship to form the view in the present case that the only special circumstance, for the purpose of s 15(6), was Mr Pasini's anticipated length of incarceration. 40 Finally, it is not, I think, to be concluded that, having found there was a relevant special circumstance, the magistrate failed to have regard to the totality of the facts apposite to Mr Pasini's case simply because he failed to say expressly that he had done so. At the start of his reasons, his worship specifically set out the matters relied on by the applicant fairly and concisely. It is, in my view, scarcely likely that he did not turn his mind to them, especially when he came to consider his general discretion. The very generality of his prefatory question (did the special circumstance overcome the presumption against granting bail) might be said to point the other way. So too, it might be said, does the fact that his eventual conclusion was reached, having regard to the other evidence before him. Mr Pasini was, his worship found, "trying to avoid detection by Mexican authorities". His worship's findings indicated that he considered that there was a real risk of flight. That was plainly a relevant consideration and the applicant did not submit otherwise in this Court. 41 To adapt what was said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 in a different context, the reasons given by the magistrate are not to be scrutinised over-zealously to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: see also Commissioner for Corporate Affairs v Bracht [1989] VR 821 at 826 per Ormiston J and Cross v McHugh [1974] 1 NSWLR 501 at 503 per Hardie, Reynolds and Glass JJA. This is particularly so when no transcript of the magistrate's reasons is kept; the magistrate evidently gave an abbreviated summary of what he perceived to be the relevant findings; and there is no affidavit (or any other material) from him concerning his reasons. 42 I do not consider that there is any basis shown upon which it might be concluded that the magistrate misdirected himself by misconstruing s 15(2) and s 15(6), or that he so misapplied a relevant criterion that his exercise of discretion wholly miscarried. Accordingly, I would not grant the relief sought by the applicant, whether or not I have jurisdiction to do so. Subject to what counsel may say are the appropriate orders, I would dismiss the motion dated 29 March 1999 with costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate: Dated: 23 April 1999 Counsel for the Applicant: Mr K Bell QC with Mr S Shirrefs

Solicitor for the Applicant: Pryles and Defteros

Counsel for the First Respondent: Dr C Jessup QC with Mr P J Hanks and Mr W G Gilbert

Solicitor for the First Respondent: Australian Government Solicitor