R v Rivera [2003] NSWSC 6 | Case summary

Judgment 1 His Honour: This is an application for bail pursuant to s21(6) of the Extradition Act 1988 (Commonwealth). 2 A complaint having been filed charging the applicant with the murder of Kristina Garcia, a warrant for the arrest of the applicant was issued out of the Superior Court of California on 28 May 2002. The deceased was known to the applicant. She had been missing since 15 May 2002. Her body was found on 23 May 2002. The applicant flew from the United States to Sydney via Amsterdam and London, arriving in Australia on 27 May 2002 with a visitor's visa for three months. The applicant was ticketed to return to the United States in June 2002. However he remained in Australia. The applicant did not leave Australia on the expiration of the visitor's visa in August 2002. An application having been made on behalf of the United States for the issue of a warrant for the arrest of the applicant, the applicant was duly arrested on 19 September 2002. 3 An application for an order for the surrender of the applicant was adjourned on several occasions before coming on for hearing on 16 December 2002. On 16 December 2002, an order was made that the applicant was eligible for surrender to the United States of America in relation to an extradition offence and a warrant to that effect was issued pursuant to s21(9) of the Act. The applicant has applied to this Court pursuant to s21(1) of the Act for review of the order. The application is listed for directions on 10 February 2003. 4 Section 21(6) provides that, so far as is presently relevant, that, where such an application for review has been made, the court may order the release on bail of the person on such terms and conditions as the court thinks fit, "if there are special circumstances justifying such a course". 5 The meaning to be given to the phrase "special circumstances" in s21 of the Act is well settled by the authorities. The following is an extract from the judgment of Goldberg J in Cabal v United Mexican States [2000] FCA 7. 8 Section 3 of the Act sets out the principal objects of the Act, one of which is "to enable Australia to carry out its obligations under extradition treaties". In its original form s21(6)(f)(iv) did not require the threshold of the existence of "special circumstances" to be overcome before an applicant or an appellant could be released on bail. It simply allowed the Court to "order the release on bail of the person on such terms and conditions as the court thinks fit". Section15(6) as originally enacted did contain a requirement for "special circumstances". It provided: "A magistrate shall not remand a person on bail under this section unless there are special circumstances justifying such remand." The Explanatory Memorandum relating to the Extradition Bill 1987 contained the following statement in relation to the requirement for "special circumstances" in cl15(6): "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." The Explanatory Memorandum which accompanied the Extradition Amendment Bill 1990 said in relation to the amendment which introduced the requirement of special circumstances into s21(6)(f)(iv): "The purpose of this clause is to extend the presumption against bail which presently prevents a Magistrate remanding a person on bail 'unless there are special circumstances justifying such remand' (subsections 15(6) and 32(3)). The presumption is also to apply to the Supreme Courts of the States or Territories, the Federal Court or the High Court in the exercise of the power conferred by sub-paragraph 21(6)(f)(iv) to order the release on bail of a person who applies for a review of a Magistrate's order, or who appeals against an order made on that review or on any subsequent level of appeal." 9 In Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 at 74 French J presumed that the policy underlying the requirement of "special circumstances" in s21(6)(f)(iv) was the same as the policy underlying "special circumstances" in s15(6). I would, with respect, agree with this observation. 10 The manner in which the expression "special circumstances" is to be construed has been considered in a number of cases. In Schoenmakers v Director of Public Prosecutions (supra) French J said, in relation to "special circumstances" at 74: "The reference to special circumstances' in the context of this legislation imports a presumption against the grant of bail and puts the onus on the applicant to demonstrate that an order for bail would be justified. There are two stages in the decision-making process under s21 (6)(f). The first involves the threshold question whether there are special circumstances of the kind contemplated by the section. If that question is answered in the affirmative, the court must then consider whether, in the exercise of its discretion, it should make an order for release of the applicant on bail and, if so, upon what terms or conditions. The first question, whether there are special circumstances, involves a value judgment about which of the range of circumstances favouring the grant of bail are to be regarded as special and which are not. That is a judgment to be made by reference to two criteria; the general purpose of the provision imposing the requirement and broader community standards. The purpose of the special circumstances requirement imposed by s21 (6)(f) is apparent from the nature of the legislation and the terms of the explanatory memorandum relating to the 1987 Bill and the equivalent provisions in s15 . It is to reduce what is perceived as the very high risk of persons sought for extraditable offences absconding'. It looks in particular to the case where a person is in Australia to avoid arrest in the country in which he is alleged to have committed the offence." In Wu v Attorney-General of the Commonwealth (1997) 79 FCR 303 the applicant claimed that the request for her extradition was an abuse of procedure and invalid. Burchett J granted bail pending the hearing of her application. His Honour was not exercising power under s21(6)(f)(iv) of the Act but was rather exercising the Court's inherent power to grant bail independently of statute. His Honour observed that the provisions of bail in s15 and s21 of the Act reflected legislative adherence to the common law principle and continued at 306-307: "It seems to me that the common law's extreme care and caution' and the statute's special circumstances' are each intended to reflect the same matter - a high risk that a fugitive from his own country may fail to answer bail. This was expressly held to be the basis of the statutory provisions in Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 at 73-74, a decision of French J. It is a consideration which should be applied bearing in mind the importance of the international obligation undertaken by Australia when it enters into extradition treaties ..." Burchett J then considered decisions relating to expressions such as "special reasons" and "special circumstances" and said: "These expositions of comparable uses of special circumstances' support the view, which I hold, that the expression 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." 11 In Bertran v Minister for Justice (1999) 165 ALR 155, Sundberg and Merkel JJ cited this passage with approval and said at 161: "In our view that is what the phrase special circumstances justifying such remand' in s15 (6) means - circumstances different in some way that provides a reason for a more favourable view of the grant of bail than that attending the ordinary run of extradition cases where a person might be expected to be remanded in custody." As I observed recently in von Arnim v Federal Republic of Germany [1999] FCA 1747 at [17], some care must be exercised in applying authorities in relation to s15(6) of the Act to circumstances under s21(6) of the Act. However, in my opinion, these observations of Sundberg and Merkel JJ apply to the expression "special circumstances" in s21(6)(f)(vi) of the Act. Indeed at 164 Sundberg and Merkel JJ were generally in agreement, inter alia, with the observations of French J in Schoenmakers v Director of Public Prosecutions (supra) to which I have referred in par 10 above. 12 In Bertran v Minister for Justice (supra) Finkelstein J concurred with the majority in dismissing the appeal but took what may be regarded as a view narrower than the majority in his approach to "special circumstances". His Honour said at 168: "However, in recognition of the fact that detention may cause an arrested person to suffer injustice, bail may be granted in special circumstances'. In my opinion this does not mean that the arrested person need only show something that does not exist in an ordinary case. It means more than that. To justify the grant of bail the arrested person must establish circumstances that are of sufficient weight to overcome the important reason why bail should ordinarily be refused. Accordingly bail will ordinarily be refused unless the arrested person would suffer serious injustice if remanded in custody. What will constitute serious injustice must be determined on a case by case basis. It will include circumstances as diverse as a risk of serious deterioration of health if the arrested person is remanded in custody and cases where it is highly probable that the arrested person is not eligible for surrender." There is force in his Honour's observation but it does not, in my respectful opinion, pay sufficient regard to the fact that in order for something to be "special" there must be established some norm or fact by reference to which it can properly be characterised as "special". It seems to me that this approach does not pay sufficient attention to the content of "special". For example, in Jess v Scott (1986) 12 FCR 187 the Full Court in considering the content of the expression "special reasons" in O 52 r15(2) of the Federal Court Rules which allows the Court to extend the time for filing a notice of appeal said at 195: "It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served." I therefore approach the question whether special circumstances exist for the purposes of s21(6)(f)(iv) by asking, consistently with the authorities to which I have referred, whether the circumstances relied upon are different from the circumstances which ordinarily apply where a person is in custody pending extradition proceedings and which by their nature warrant a more favourable view in relation to the grant of bail. 13 The applicants submitted that I should construe "special circumstances" somewhat differently. They pointed out that in The Shorter Oxford English Dictionary 3rd ed "special" had a number of meanings including: "1. Of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality, or degree ... 3. Marked off from others of the kind by some distinguishing qualities or features; having a distinct or individual character ..." The applicants submitted that in construing "special circumstances" in s21(6)(f)(iv) I should adopt the latter definition of "special" and ask what marks off the circumstances from other circumstances and what are their distinguishing features or qualities. I do not, however, consider that this approach is consistent with the authorities to which I have referred. 14 The authorities establish that the determination of whether bail should be granted under s21(6)(f)(iv) involves a two-step process. In essence, the establishment of special circumstances is a threshold but once overcome there is a residual discretion in the Court. As the majority (Sundberg and Merkel JJ) said in Bertran v Minister for Justice (supra) at 163: "Special circumstances must exist before bail can be granted, but there is a discretion to be exercised after special circumstances are found. It is not inappropriate to describe the first step as a condition precedent to the exercise of the jurisdiction to grant bail: see Holt (at FCR 379) and Kainhoffer (at FCR 13). It is a condition precedent in the sense that it is a requirement that must be satisfied, though its satisfaction does not conclude the decision-making process because there is still a discretion to be exercised." 15 What are "special circumstances" will vary from case to case and there is no rigid demarcation between what circumstances are special and what circumstances are not. In Holt v Hogan (No 1) (1993) 44 FCR 572 Cooper J considered the requirement of the existence of special circumstances and said at 579 that it involved a consideration: "... whether the circumstances are such as to displace the ordinary rule against bail because the personal and other public interests underlying the proven circumstances outweigh the statutory interests and concerns evident in ss3 and 21 (6)(f)(iv) of the Act . Certain matters which touch a particular applicant, for example the time already spend in custody and the time the applicant faces in custody until the Court can determine the merits of the appeal, are matters that may be given considerable weight although in themselves they may not be decisive of the outcome in any particular case." In Schoenmakers v Director of Public Prosecutions (supra) French J said at 74-75: "In my opinion 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." In that case his Honour found two special circumstances which justified the release of the appellant on bail pending the hearing of his appeal, namely his particular connection with Australia and the fact that there was no evidence to suggest that he was in Australia as a fugitive and secondly, the length of time that he would have spent in prison without trial if he was not released pending the appeal. That period was in excess of one year. 16 The determination of whether "special circumstances" exist must be considered by reference not only to circumstances which are "special" in the sense to which I have already referred but which must also take into account what French J referred to in Schoenmakers v Director of Public Prosecutions (supra) as "broad community standards". In Holt v Hogan (No 1) (supra) Cooper J took a similar approach and said at 578-579: "In my view the correct approach is to start by identifying the policy and public interest underlying the provisions of the Act . The principal objects of the Act are set out in s3 ... Additionally, one bears in mind the concern of he legislature, in providing that special circumstances be established before bail is considered, as reflected in the Explanatory Memorandum which accompanied the Extradition Bill in 1987, namely that experience has shown that there is a very high risk of persons sought for extraditable offences absconding. As Foster J said in Schoenmakers (No 2), these circumstances dictate that the Court approach the matter with an attitude of circumspection. Against these matters one then identifies and weighs the particular circumstances of the applicant for bail keeping in mind broad community standards including a predisposition against unnecessary or arbitrary detention in custody. 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. The special circumstances which the applicant for bail must establish are those which satisfy the Court that it is justified in departing from the presumption implicit in s21 (6)(f)(iv) of the Act that ordinarily bail is not to be granted. This is the same approach taken at common law where special' or exceptional' circumstances must be demonstrated (see for example R v Ladd ; R v Murphy (1958) 75 WN (NSW) 431 at 432-433). Of course, unless the Court was satisfied that it as not probable that the applicant would abscond, it is hard to imagine any situation where special circumstances would be made out. But in assessing that probability regard may be had to the personal circumstances of the applicant and the ability of the Court to impose conditions which maximise the likelihood that an applicant will answer bail. It is not in my view that the circumstances are so exceptional or special that it is not probable that the applicant will abscond which is the sole or appropriate test required by s21 (6)(f)(iv), but rather whether the circumstances are such as to displace the ordinary rule against bail because the personal and other public interests underlying the proven circumstances outweigh the statutory interests and concerns evident in ss3 and 21 (6)(f)(iv) of the Act . Certain matters which touch a particular applicant, for example the time already spend in custody and the time the applicant faces in custody until the Court can determine the merits of the appeal, are matters that may be given considerable weight although in themselves they may not be decisive of the outcome in any particular case." 17 In Bertran v Minister for Justice (supra) the majority of the Court agreed with these observations, as they had with the observations of French J in Schoenmakers v Director of Public Prosecutions (supra) as to the manner in which the Court should approach the issue of special circumstances under s21(6)(f)(iv). The majority then made observations in relation to s15(6) of the Act which, in my opinion, are also applicable to s21(6)(f)(iv) of the Act. Their Honours said at 164: "Under s15(6) one starts with the presumption implicit in the subsection, and explicit in the explanatory memorandum, that ordinarily bail is not to be granted. One then asks whether an applicant has established the existence of special circumstances which displace that presumption. One does not ask whether there are special circumstances in the abstract but whether there are special circumstances justifying such remand'. In answering the question it is appropriate to take into account the particular circumstances of the applicant together with the broad community standards including a predisposition against unnecessary detention in custody." Of course, under s21(6)(f)(iv) one is not concerned with "special circumstances justifying such remand" but rather whether there are "special circumstances justifying such a course", namely the course of ordering "the release of [the applicant or appellant] on bail on such terms and conditions as the court thinks fit." 18 It is important, in my view, to take an overall view of the circumstances which attend upon the applicants' applications for bail when considering whether there are relevant circumstances. Individual or specific circumstances may not, of themselves, be special in any relevant way but an accumulation of non-special circumstances may well build up into an overall special circumstance or special circumstances. Further there may be an inter-relationship between different circumstances which will heighten the significance of each circumstance. 6 I respectfully agree with this statement as to the effect of the authorities. 7 The matters relied upon as allegedly constituting special circumstances in the present case were as follows.

(c) Oppressive conditions in prison. 12 The evidence is of complaint by the applicant on formal complaint forms that there has been a course of oppressive harassment by prison officers directed towards the applicant, including unnecessary strip searching, apparently in retaliation for other complaints, and a threat of placing the applicant where he might be beaten up or worse by a violent inmate. The complaint in relation to the last of these matters was made as recently as 17 January 2003. It was marked for the attention of the Governor of the gaol and a copy is being transmitted by Ms McGowan to the American Consulate. 13 I expect that the applicant's complaints will be appropriately investigated and that any action found to be necessary as a result of such investigation will be taken. Nonetheless, it appears, on the material before me, that the applicant has been subjected to tougher treatment than is reasonably to be expected under ordinary prison conditions, and that this might continue to be so. On the other hand, it has also to be recognised that prison conditions are, by their nature, unavoidably oppressive and demeaning to some degree. 14 These matters are relevant to the issue of special circumstances and are to be given due weight.

R v Rivera

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