Hellenic Republic v Konstantinou

THE BAIL APPLICATION 9 As noted, in accordance with s 15(1), Mr Konstantinou on 8 June 2010 was brought promptly before a magistrate. Mr Konstantinou through counsel then applied to be remanded on bail. He had only one opportunity to do so: s 15(3). After discussion between the magistrate, and counsel for both the Hellenic Republic and Mr Konstantinou, the bail application was to be pursued that day. It was listed to commence at 2:30 pm. It commenced a few minutes after that. 10 At the commencement of that hearing, counsel for the Hellenic Republic said: I just want to indicate to the court an intention that should evidence be called, that we would be seeking an adjournment at the conclusion of that evidence so that we may consider the factual circumstances that are put to you to seek instructions on those factual circumstances and consider whether there is any evidence that we may need to present to the court in support of bail being rejected in this circumstance. At that time, no adjournment application was made. Counsel for the Hellenic Republic suggested that it might be "beneficial for all" in the light of s 15(3) that the bail application be deferred until all parties have had time to properly consider what submissions might need to be made, taking into account the particular nature of bail applications under the [Act]. 11 The hearing proceeded. Evidence was given by Mr Konstantinou, his son, his step-daughter, and a solicitor who has known Mr Konstantinou for some six years or so. The Hellenic Republic did not seek to adduce any evidence. Counsel for Mr Konstantinou made submissions. Counsel for the Hellenic Republic then said: We would like to seek an adjournment of this matter so that we can consider the evidence that has been put before the court and take instructions on that, in particular, whether there is any evidence that we wish to [adduce] The magistrate said he intended to rule on the bail application that day. Counsel for the Hellenic Republic then made submissions on the bail application. 12 The magistrate gave immediate reasons for his ruling.

THE PRINCIPLES RELATING TO THE BAIL APPLICATION 13 Sections 15(2) and 15(6) of the Act are referred to in [5] above. They have been explained by the High Court (Gleeson CJ, McHugh and Gummow JJ) in United Mexican States v Cabal (2001) 209 CLR 165 (Cabal). 14 Cabal arose in circumstances slightly different from the present application. Two persons had been arrested under provisional warrants and remanded in custody. A magistrate had then decided under s 19 that they were eligible for surrender, and issued warrants committing them to custody to await surrender to Mexico. They unsuccessfully sought review of the magistrate's orders by the Federal Court under s 21 of the Act, and then sought special leave to appeal to the High Court. The application for special leave to appeal was referred to a Full Bench of the High Court. Before the application for special leave to appeal was heard, a justice of the High Court ordered that each be released on bail upon conditions, pending the hearing of that application. Section 21(6)(f)(iii) and (iv) empowers a court entertaining an appeal under s 21 to order that the person or persons being surrendered for extradition should remain in custody or "if there are special circumstances justifying such a course" ordering the release on bail of those persons until the appeal has been heard. The High Court decided that s 26(6)(f) did not give it power to grant bail until special leave to appeal had been given. However, it had power to grant bail as an incident of its appellate jurisdiction under s 73 of the Constitution. 15 It is common ground in the submissions in this matter that the High Court, in then setting aside the bail order, applied a test of eligibility for bail equivalent to the statutory prescription in s 21(6)(f)(iii) and (iv). It is also common ground that the test so applied is the same test as that to be applied by a magistrate in deciding under s 15(2) and (6) whether to remand on bail a person arrested under a provisional warrant. So much is apparent from their Honours' reasons at 183, [46] in Cabal. 16 When addressing the principles for granting bail in cases falling within s 15(6) or s 21(6) of the Act, after referring at 185, [52] to the "valuable guidance" given by United States cases, the Court said at 185-186, [52]: It is therefore accepted that special circumstances "need to be extraordinary and not factors applicable to all defendants facing extradition". It is not necessary that any particular circumstance should be regarded as special. Several factors in combination can constitute special circumstances justifying bail. (references omitted) The reasons then at 186-189, [53]-[56] refer to a number of factors which, in the United States cases, had been accepted as constituting special circumstances and factors which, in those cases, had not been regarded as constituting special circumstances. 17 As to the risk of flight, their Honours said at 189, [57]: In Australia, the existence of special circumstances is an essential condition of the grant of bail. It seems proper, therefore, to determine whether special circumstances exist before considering the question of flight, a matter that is highly relevant in the exercise of the general discretion. It may be going too far to say that, if there is any risk of flight, the Act requires that bail be refused, even if there are special circumstances. In a particular situation, the special circumstances may be so cogent that bail should be granted although there is a slight risk of flight. Nevertheless, to grant bail where there is a real risk of flight could only be justified in the most extraordinary circumstances. In the vast majority of cases, the proper exercise of discretion requires the refusal of bail if there is such a risk. To grant bail where a risk of flight exists is to jeopardise Australia's relationship with the country seeking extradition and to jeopardise our standing in the international community. They then referred to the rationale for refusing bail in extradition cases, namely Australia's interest in surrendering the person who is arrested under a provisional warrant in accordance with its treaty obligations, and noted at 190, [60] that a: typical extraditee is a person who has fled from another country after committing a serious crime, granting bail to that person provides a further opportunity for him or her to flee from the reach of the extraditing country" so that the ever present risk of flight in extradition situations was the rationale for the "special circumstances" requirement of s 15(6) of the Act and of s 21(6)(f)(iv) of the Act. 18 Hence, their Honours concluded at 191, [61]-[62]: Given this background and the rationale for the "special circumstances" condition, bail in extradition cases should be granted only when two conditions are fulfilled. First, the circumstances of the individual case are special in the sense that they are different from the circumstances that persons facing extradition would ordinarily endure when regard is had to the nature and extent of the extradition charges. This means that the circumstances relied on must be different in kind from the disadvantages that all extradition defendants have to endure. To constitute "special circumstances", the matters relied on "need to be extraordinary and not factors applicable to all defendants facing extradition". Secondly, there must be no real risk of flight. Absence of a real risk of flight is ordinarily a necessary but not a sufficient condition of bail. When there is a real risk of flight, ordinarily bail should be refused. Further, the risk of flight should be considered independently of the effect of the proposed bail conditions. In this area of law, the history and character of the defendant and the potential punishment facing the defendant are likely to be surer guides to the risk of flight than bail conditions - even rigorous conditions. A person, fearing punishment and inclined to flee, is unlikely to be diverted from that course by the prospect that his or her sureties may forfeit their securities or by stringent reporting conditions. Even if the defendant has to report twice daily to the police, he or she will have a period of twelve to fourteen hours in which to leave Australia. Even when special circumstances are proved and there is no real risk of flight, it does not follow that bail must be granted. For example, the defendant may pose a risk to the community or a particular individual. In addition, bail must become harder to obtain as the case proceeds through the judicial system. Once the magistrate has found that the defendant is eligible for surrender, public interest factors similar to those that require a convicted defendant to be imprisoned also require that a defendant in extradition proceedings be kept in custody. 19 In Cabal, the Court at 197, [78] agreed that the conditions under which the applicant for special leave to appeal had been held for 31 months, and his deteriorating psychological condition constituted special circumstances. However, their Honours concluded that the discretion to grant bail had miscarried because the single justice of the High Court had made no finding as to whether there was a real risk, independently of the effect of bail conditions, that the applicant would flee if released on bail. A second reason for setting aside the bail order is not relevant to the present application: there had been no finding that that applicant for special leave to appeal had made out a strong case for the grant of special leave to appeal and of any consequential appeal succeeding. Consequently, because the Court, re-exercising the discretion whether to grant bail, was not satisfied that, if the applicant were not released on bail, there was no real risk that he would flee from Australia, and because the prospects of securing special leave to appeal were not strong, bail was refused.

THE MAGISTRATE'S REASONS FOR GRANTING BAIL 20 His Honour referred extensively to the decision of the High Court in Cabal, and cited the passage at [61]-[62] set out above at [18]. He also referred to Article 9(3) of the International Convention on Civil and Political Rights (ICCPR), ratified by Australia which provides: Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power … He said that Mr Konstantinou is therefore: … entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment. and that he should interpret "special circumstances" in s 15(6) in a way that "acknowledges the international obligation Australia has under the ICCPR not to lock people up whilst on remand without a good cause". 21 As to the facts, his Honour found that Mr Konstantinou had been living at the same address for some 10 years, an address known to the prosecuting authority in the Hellenic Republic. He found that Mr Konstantinou suffers a range of health conditions: high blood pressure managed by medication, a stomach ulcer also managed by medication, and headaches and back pain from a car accident. He is at high risk of having a stroke. He is an invalid pensioner, living with his wife of many years in a house they own, including in the five years since the alleged offences. He accepted Mr Konstantinou has two children and a step-daughter, a grandchild and another grandchild about to be born of his son and his son's wife. He is a doting grandparent, in a close-knit family. He accepted Mr Konstantinou had no reason to suspect he was under investigation until he was arrested that morning. Apart from the normal distress of him being in custody, the magistrate found that would have "serious repercussions" for the family unit as he looks after the grandchild of his step-daughter two days a week, including one when his wife is working and more generally he does childminding of the grandchildren. His Honour also accepted, apparently, that Mr Konstantinou is generally of good character. 22 The magistrate's conclusions and orders are in the following passage:

I find that in combination, all the circumstances are special circumstances. I separately find that there is no flight risk regardless of conditions that I am about to impose. I will of course, as a matter of prudence, impose further conditions to minimise any flight risk were I to be wrong in my finding that there is no flight risk. Finally, there are no prevailing circumstances of risk to the community or other matters that prohibit bail. I intend to grant bail in his own recognisance in the sum of $50,000 and two sureties to be members of his family at $10,000 each. That is not cash that is an obligation. I order that his passports be surrendered immediately to the Registrar of the Court to be held by the Registrar of the court until further order, that he not apply for any passport, that he not attend at any airport or other port of embarkation to leave Australia, that he not leave the State of South Australia, that he report to the Holden Hill Police Station every day between 9 a.m. and 5 p.m. and that is to commence tomorrow. I note that in fixing that reporting condition that it may be reasonable to apply to vary that at a later time. He is to reside at 4 Billabong Road, Para Hills.

CONSIDERATION OF THE APPLICATION 23 The Hellenic Republic accepts that it has no right prescribed under the Act to have the magistrate's decision on bail reviewed or to appeal from it. It accepts that it must demonstrate jurisdictional error on the part of the magistrate, as explained in Craig v South Australia (1995) 184 CLR 163 and more recently in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 so as to have the magistrate's decision quashed. 24 The Hellenic Republic accepts that, in that event, the question of bail under s 15(2) should be remitted to a magistrate for re-determination according to law. It also accepts that such a re-determination would be de novo, so that Mr Konstantinou should be able to adduce such material as he may be advised on that application. 25 Five grounds of jurisdictional error were asserted. I shall consider each in the sequence set out in the written submissions of counsel for the Hellenic Republic.

(1) Did the magistrate misinterpret the legislative requirement for "special circumstances" in s 15(6) of the Act? 26 The contention is that the magistrate erred in law so as to ask himself the wrong question by his reference to the ICCPR and its role in interpreting s 15(6) of the Act, and additionally therefore did so in a way which indicates he was performing a judicial rather than an administrative function. In substance, the contention is that the magistrate wrongly had regard to a presumption against detention in custody when considering the meaning of "special circumstances". 27 In that part of his reasons set out in [22] above, he has drawn conclusions on the bail application in terms apparently consistent with the proper approach to s 15(2) and (6) as explained in Cabal. His Honour found: · special circumstances existed; · there was no risk of flight; and · in the exercise of his discretion, it was appropriate to grant bail. 28 However, in my view, his Honour's reasons indicate that he approached the meaning of "special circumstances" with an emphasis which is not consistent with that concept as explained in Cabal. That is because he interpreted that concept in the Act in a way "that acknowledges the international obligation Australia has under the ICCPR not to lock people up whilst on remand without a good cause". 29 As noted above, in Cabal the High Court at 195, [72] expressly said that it is an error in a bail application to take into account that there is a predisposition against unnecessary or arbitrary detention in custody. It said that in extradition cases, the general rule is that defendants are to be held in custody whether or not their detention is necessary. I have referred above to the reasons why that is the policy underlying the Act. 30 The magistrate, after referring to Cabal at some length (but not expressly to the passage at 195, [72]) and after making his findings of fact, did not go into detail as to why those findings lead him to the conclusion that special circumstances existed. Having regard to his comments about the relevance of the ICCPR to the meaning of "special circumstances", I conclude that he did as he said - interpret it in a way that acknowledges an international obligation not to confine persons in custody on remand without a good cause. For the reasons given, I do not consider that is consistent with the proper interpretation of "special circumstances" as explained by the High Court in Cabal. 31 Such an error amounts to jurisdictional error: Craig v South Australia (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ.

(2) Did the magistrate err in finding "special circumstances" existed? 32 Clearly, the magistrate determined the existence of special circumstances from a combination of factors. They included Mr Konstantinou's health problems, his family circumstances, his character, and his personal circumstances. 33 The Hellenic Republic accepts that it is legitimate to have regard to a combination of factors in reaching such a decision. But it argues that the particular combination of circumstances do not, or could not, properly fall within the scope of s 15(6), even though they may not be common to others who may be subject to processes under the Act, but that they are "the types of circumstances which would be taken into account on an ordinary domestic bail application". 34 Because I have concluded that the magistrate's decision about the existence of special circumstances was erroneously coloured in the way referred to, it is not possible to determine whether error 2 as asserted is made out. 35 However, it may be helpful to make some observations on the matter. Putting aside the misdirection, the Hellenic Republic has not persuaded me that a magistrate, properly applying s 15(2) and (6) of the Act, could not properly have concluded that the combination of matters found by him did amount to special circumstances. Every case will be different. The analysis of the various United States cases by the High Court in Cabal serves to highlight that point. Some cases will be clearer than others. No package of circumstances can, or should, be said to be necessary to exist before s 15(6) is enlivened. See also the observations of Perram J in United States of America v Green [2009] FCA 638 at [34]-[37]. As French J (as he then was) said in Republic of Ireland v O'Donoghue [2004] FCA 1753 at [16], the assessment of whether special circumstances exist is "in a sense evaluative in character". 36 Each case must be assessed in its own particular circumstances. The circumstances upon which bail might be given where a person is charged domestically with a crime are not, of themselves, circumstances upon which s 15(6) may be enlivened: see Cabal at [72]. However, it does not follow that circumstances, or some circumstances, which are relevant to a bail decision in a domestic context may not also be relevant to the existence of "special circumstances" under s 15(6). 37 As the matter is to be returned to a magistrate, and apparently Mr Konstantinou will apply for bail under s 15(2) and it will be necessary for his application to be considered afresh, it is not appropriate to take this aspect further.

(3) & (4) Whether the magistrate erred in his approach to considering whether there was a flight risk in relation to Mr Konstantinou, or erred in his finding that he did not present a flight risk 38 The contention is that the magistrate's finding that Mr Konstantinou presented no flight risk was wrongly influenced by him observing that Mr Konstantinou did not fit closely the description of the sort of person set out in the Explanatory Memorandum to the Bill to introduce s 15(6) to the Act. 39 I do not consider that the magistrate fell into such an error. He was obliged, in the light of s 15(2) and (6) as explained in Cabal, to determine whether Mr Konstantinou presented a flight risk if he were not remanded in custody. He did so. He expressly did so, without taking into account the conditions on which bail might have been granted: cf Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70. 40 His Honour is not shown to have erred in a way which amounts to jurisdictional error in reaching his finding of fact on this topic. His observation that Mr Konstantinou did not fit closely the description of the sort of person which might be prone to flight if granted bail is an aside in his reasons. In any event, it is obvious that some persons arrested on a provisional warrant issued under s 12 of the Act are more obviously flight risks than others. But the magistrate did not let that obvious matter wrongly colour his conclusion of fact on this topic. He did not find merely that Mr Konstantinou presented a less obvious risk of flight than others. Nor did he find that, because Mr Konstantinou did not fit the typical characterisation of the person described in the Explanatory Memorandum, he did not present a flight risk. He made a positive finding that he did not present a flight risk. 41 In my judgment, on the evidence, that finding of fact was rationally available to be made. The matters referred to by the magistrate concerning Mr Konstantinou's circumstances were capable of supporting that conclusion. He is not shown to have overlooked the nature of the charges or their seriousness or the potential penalties which might be imposed if he is found guilty of them. His Honour's conclusion of fact, in my view, was, in addition, made without legal error of the kind contended for by the Hellenic Republic.

(5) Whether the Hellenic Republic was not accorded procedural fairness by not being given a reasonable opportunity to prepare its case in response to the bail application 42 Although counsel for the Hellenic Republic did not refer to authority to support the premise that it was entitled to procedural fairness in the conduct of the bail application, I am prepared to assume that the magistrate in conducting the bail hearing was obliged to accord it procedural fairness. In R v Dudley Justices, Ex parte Director of Public Prosecutions (1992) 156 J.P.N. 618; The Times, 24 June 1992, the Court of Appeal (Mann LJ and French and Auld JJ) held that the inferior court had failed to treat the prosecution fairly by dismissing an information in the absence of the prosecution, when it was clear the prosecution had not been notified of the hearing but was nevertheless available after a short delay. 43 However, it is the content of the obligation to accord procedural fairness which is in my view the stumbling block to this contention succeeding. 44 The Hellenic Republic controlled the timing of the issue and service of the provisional warrant. It knew that, upon its service, Mr Konstantinou would have to be brought before a magistrate promptly. It knew that Mr Konstantinou may then apply for bail. It had the opportunity therefore to be prepared generally for any such bail application. 45 On the bail application, the Hellenic Republic was represented by counsel. It was familiar with the terms of s 15 of the Act. It was given the opportunity to be heard. It cross-examined the witnesses called on behalf of Mr Konstantinou. It did not seek to adduce evidence itself, although it could have. It made submissions on the law and on the facts. It does not suggest that the magistrate was other than impartial. 46 Counsel for the Hellenic Republic acknowledged that, on the bail application, it was not entitled to receive any pleading or other document in advance of the hearing setting out the facts and matters which Mr Konstantinou sought to establish or rely on. 47 One matter its written submissions indicate as material it may have wished to adduce in evidence is the circumstances of Mr Konstantinou's departure from Greece. It could readily have anticipated that topic and adduced evidence in relation to it. 48 Another matter its written submissions indicate that it may have wished to address is "full submissions" on the applicable legal principles. It could readily have anticipated that topic and prepared those submissions. Indeed, it is not apparent that it did not do so. 49 Another matter its written submissions indicate that it may have wished for more time to prepare its case on bail is so that, "at a practical level … [it could] fully and effectively test the evidence given by and on behalf of Mr Konstantinou". However, given the acknowledgment by its counsel referred to in [46] above, it cannot complain about the opportunity to do so which it was accorded. 50 In reality, the Hellenic Republic's complaint is really about the magistrate's ruling, after the final submissions on bail on behalf of Mr Konstantinou, to proceed to determine the bail application rather than to accede to a request for an adjournment so the Hellenic Republic could consider the evidence and "take instructions" on it and on whether there was any evidence it might wish to adduce. The written submissions indicate it may have wished to explore the nature and relative seriousness of Mr Konstantinou's medical conditions and the extent and adequacy of any medical treatment for them if he were in custody. 51 In my view, the refusal of an adjournment in those circumstances was properly within the discretion of the magistrate. It is clear that the bail application, once made, had to be dealt with promptly. The Act does not provide for Mr Konstantinou to have been remanded on bail pending the completion of the bail hearing. The Hellenic Republic made it clear that, in its view, he would have to remain in custody during the period of any adjournment. It did not clearly indicate the length of time for which it sought an adjournment. It was open-ended. The adjournment then proposed was to take instructions. It was unclear how quickly those instructions could be completed, or indeed if they could have been completed - they related to the matters raised by or on behalf of Mr Konstantinou, and so presumably depended on the cooperation of his medical advisors. Moreover, there was no assertion that any further evidence might be adduced. The adjournment was sought to enable instructions to be obtained as to whether any evidence might be procured and addressed. Even now, the Hellenic Republic's position is speculative. It has not identified any evidence which is now available to it, and which it would have adduced if given a short adjournment, on the bail application. I also note that it probably has the right - although the Act does not expressly spell it out - to seek to have had the bail order revoked by it, subsequent to the bail determination, if it obtained cogent evidence which put a significantly different complexion on any of the critical findings made by the magistrate. Section 15(3) limits Mr Konstantinou to one bail application except in certain circumstances. It does not in terms apply to the Hellenic Republic. 52 As the magistrate's bail order is to be quashed in any event, the Hellenic Republic will now obviously be in a position on the bail application to be reheard where in any event it has had the benefit of knowing the case he wants to present and to assemble the evidence it wants to adduce in opposition.

CONCLUSION 53 In the light of my conclusion on the first issue, I propose to make the following orders as suggested by counsel for the Hellenic Republic and acceded to by senior counsel for Mr Konstantinou in the event that the magistrate's decision is to be quashed: 1. An order in the nature of certiorari that the decision of the magistrate on 8 June 2010 to remand Mr Konstantinou on bail under s 15(2) of the Extradition Act 1988 (Cth) be quashed. 2. An order that Mr Konstantinou is to return to his former custody by surrendering himself to the Australian Federal Police at Level 8, 55 Currie Street Adelaide in the State of South Australia no later than 11 am on Tuesday 6 July 2010 to the intent that he be brought before a magistrate as soon as practicable in accordance with s 15(1) of the Extradition Act 1988. 3. An order that in the event Mr Konstantinou fails to comply with order 2 he may be taken into custody. 4. A declaration that the decision of the magistrate on 8 June 2010 to remand Mr Konstantinou on bail under s 15(2) of the Extradition Act 1988 was of no force and effect. 54 I will give either party liberty to apply on short notice in the event that any issue arises as to the proper implementation of these orders. I will also give either party liberty to apply on the question of costs. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.