Matson (Baron) v Keenan

1. The applicant's application for bail is dismissed.
2. The applicant pay the first and third respondents' costs of the application for bail. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 The applicant applies for bail pending the determination of his application for judicial review of decisions made by the first and second respondents pursuant to ss 16 and 12 respectively of the Extradition Act 1988 (Cth) ("the Act"). 2 On 21 May 2014, the third respondent requested the extradition of the applicant from Australia to the United States of America. On 4 September 2015, the first respondent signed a notice of receipt pursuant to s 16(1) of the Act stating that the extradition request had been received. On 17 September 2015, the second respondent issued an extradition arrest warrant under s 12(1) of the Act. 3 The applicant was brought before a magistrate on 26 October 2015 and remanded in custody under s 15(2) of the Act. He has remained in custody since that time. 4 On 15 January 2016, a magistrate determined that the applicant was eligible for surrender to the third respondent. His Honour ordered, pursuant to s 19(9) of the Act, that the applicant be committed to prison to await surrender or release. The applicant then applied to this Court for review of the Magistrate's orders. 5 On 26 July 2016, the applicant filed his application for review of the first and second respondents' decisions under ss 16 and 12 of the Act. 6 On 21 October 2016, I ordered that the applicant's application for review of the Magistrate's decision under s 21(1) of the Act be dismissed: Matson v United States of America [2016] FCA 1245. The applicant has since appealed against that judgment. 7 The Court issued referral certificates for legal assistance pursuant to r 4.12 of the Federal Court Rules 2011 (Cth) in respect of both the application for review of the Magistrate's decision and the present application. Both proceedings were delayed due to difficulties in the applicant securing pro bono representation. The applicant eventually obtained counsel. The present application was set down for hearing on 12 December 2016, but was adjourned until 10 February 2017 because of time constraints on the applicant's counsel and difficulties in obtaining instructions from the applicant while he remained in custody. The applicant is unrepresented in his application for bail. 8 The first and third respondents accept that the Court has the power to grant bail pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth). They submit that the considerations relevant to granting bail are the same as those for the grant of bail under s 21(6)(f) of the Act. I accept that submission. The applicant remains in custody as a result of the Magistrate's order under s 19(9) of the Act. Section 19(9A) requires that a magistrate must not release a person on bail unless there are special circumstances justifying such release. Where an application for review is made under s 21(1) of the Act, the Federal Court may only grant bail under s 21(6)(f) where there are special circumstances. The Full Court may only grant bail under s 21(6)(f) pending an appeal where there are special circumstances. The application for review of the first and second respondents' decisions under ss 16 and 12 of the Act is, in its effect, a collateral attack on the Magistrate's decision under s 19 of the Act. It would subvert the object of s 21(6)(f) if the applicant were granted bail in this application without demonstrating special circumstances justifying his release. 9 In United Mexican States v Cabal (2001) 209 CLR 165 ("Cabal"), the High Court said: [61] 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... [62] 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. Before a Federal Court judge grants bail, the defendant ordinarily will need to show that the application for review has strong prospects of success as well as special circumstances and an absence of risk of flight. (Citation omitted.) 10 The applicant relies on the following matters as constituting special circumstances: (a) He has been in custody for over 12 months, and is only in the middle stages of prosecuting his application and appeal. (b) He has been denied access to "proper legal facilities" to research and prepare a legal defence in what is a specialised area of the law. This is in a context where he does not have a solicitor instructing his pro bono counsel. (c) He has had difficulty communicating with his counsel to prepare his substantive proceeding, including problems with arranging legal visits, mail and drafting documents. (d) He has the burden of assisting his elderly and sick father who is also in custody in respect of the same charges. (e) The Attorney-General's Department has not made full disclosure of documents relevant to the making of decisions under ss 12 and 16 of the Act. (f) He has made complaints to the Commonwealth Ombudsman, Human Rights Commission and the Aboriginal and Torres Strait Islander Social Justice Commissioner, but is unable to adequately communicate with those entities while he is in custody. (g) He is of Aboriginal descent. (h) He has a pending constitutional challenge to the Act, not only in this proceeding, but also in his appeal against my judgment dismissing the application for review of the Magistrate's s 19 decision. (i) He alleges that the arrest warrant issued in the United States of America is invalid. 11 I do not consider that any of these matters, either alone or in combination, constitute special circumstances that justify the applicant's release on bail. 12 It is unfortunate that the applicant has spent over 12 months in custody, but delay does not, of itself, constitute special circumstances. In Cabal the High Court said: [66] The Federal Court also found that the 11 months spent in custody by Mr Schoenmakers constituted a special circumstance. The Court said that "it can never be regarded as anything other than a special circumstance that a person should have to spend a year in prison unconvicted of any offence." With respect, this statement cannot be accepted as a general proposition. Whether or not a delay of one year or more constitutes special circumstances depends on the facts of the particular case. If the extraditing country has prosecuted the proceedings without undue delay, it is unlikely that length of delay would itself constitute special circumstances. No doubt it is a hardship for any innocent person to be held in custody for a lengthy period. But detention for a lengthy period - particularly when the charges are numerous and complex and the defendant exercises his or her right to appeal against the order of committal - is not so special that it constitutes special circumstances. In any contested extradition proceedings, delay is inevitable. Delay will constitute special circumstances only when it is outside what could be regarded as the normal range for offences of the type and complexity the subject of the proceedings. (Citation omitted.) 13 The delays in the applicant's substantive proceeding are not due to any conduct of the third respondent. The matter was set down for hearing on 12 December 2016, but was adjourned on the applicant's application. Given that the application was filed only on 26 July 2016 and will be ultimately heard on 10 February 2017, the delay is not outside what could be considered the normal range. 14 While Mr Matson has filed an appeal against my judgment dismissing the application for review of the Magistrate's decision, any delay in the hearing of the appeal is not relevant to the present application for bail, which is sought pending the determination of this proceeding. 15 The applicant's complaint of delay by the third respondent between issuing the arrest warrant and the request for extradition does not constitute any special circumstance: see Republic of Poland v Ginter [2009] FCA 262 at [21]. The delay may be relevant to the exercise of the Minister's discretion under s 22(2) of the Act, but is not relevant to the application for bail. In any event, the evidence does not show that there was undue delay on the part of the third respondent. 16 The mere fact that there may be delay in the finalisation of the applicant's challenge to the extradition process as a result of his proposed constitutional challenge is not relevant. It is delay that is brought about by the conduct of his own case. It is not a special circumstance. 17 It may be accepted that Mr Matson has difficulties in conducting legal research and in communicating with and providing instructions to his counsel while he is in custody. These difficulties are no different to those of others in custody facing extradition. Similarly, his difficulties in prosecuting his complaints to various entities while he is in custody is not a special circumstance. 18 The applicant's complaint that the Attorney-General's Department has not disclosed all relevant documents is not relevant. If there is a complaint that there is a legal basis for full disclosure of documents and that those documents have not been provided, the applicant can pursue it. It is not a factor that constitutes a special circumstance for the purpose of this bail application. 19 The applicant has not identified any basis for the assertion that his Aboriginal descent makes his detention particularly arduous. The mere fact that the applicant is of Aboriginal descent does not constitute a special circumstance. 20 The fact that the applicant alleges that the arrest warrant issued in the United States of America is not valid does not constitute a special circumstance. 21 In summary, I am not satisfied that any of the matters relied on by the applicant, either by themselves or in combination, constitute special circumstances that would justify the applicant's release from custody on bail. This conclusion makes it unnecessary to consider whether the applicant is a flight risk, or his prospects of success in the substantive proceeding. 22 The application for bail will be dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.