THE PRIMARY DECISION
53 The decision under review was extensive, as were the submissions and material put before the Magistrate, including 52 pages of submissions for the applicant and 38 pages of submissions for the first respondent.
54 His Honour noted (at [19]) that the decision to remand the applicant in custody or release the applicant on bail is an administrative decision, not a punitive one. The Magistrate set out some background leading to the arrest of the applicant (at [45]-[60]), including the charges pertaining to the extradition request and then turned to consider the proper interpretation of 'special circumstances' within the meaning of s 15(6) of the Extradition Act. He noted that the expression appears in other Extradition Act provisions relevant to other stages of the extradition process, such as ss 19(9A), 21(2B) and 21(6)(f)(iv) of the Extradition Act. Then his reasons turn to the High Court decision of Cabal where the expression was examined, albeit in the context of s 21(6)(f)(iv).
55 As noted in Cabal and Vasiljkovic v Commonwealth (2006) 227 CLR 614 (at [60]), the phrase 'special circumstances' seems to have had its origins in extradition law of the United States. As the Magistrate recorded, in Cabal, in understanding the meaning of 'special circumstances', the High Court observed that 'valuable guidance' could be obtained from the United States cases.
56 The Magistrate discussed [61] of Cabal (set out above at [48]) and noted (at [66]):
The heart of the decision in Cabal, lies in what Gleeson CJ, McHugh and Gummow JJ set out were the two threshold conditions that must be fulfilled before bail could be granted in an extradition bail application. The threshold test or formulae was put in this way at [61]:
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.
(Emphasis added, citations omitted.)
57 He continued (at [67]):
At [62] in Cabal Gleeson CJ, McHugh and Gummow JJ also stated relevantly in part:
"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 …"
58 His Honour was of the view that the two conditions referred to in Cabal (at [61]) were a 'precondition to the grant of bail' and that bail principles in ordinary criminal cases were not fully applicable in extradition cases (citing Cabal at [45]).
59 His Honour drew on three points from Cabal. The first was that the High Court expressed the view that although the typical extraditee is a person who has fled from another country after committing a serious crime, granting bail to such a person provides a further opportunity to flee from the reach of the extraditing country. There is an ever present risk of flight in extradition situations, which provides the rationale for the 'special circumstances' requirement before bail is granted.
60 The second point identified by the Magistrate was that the Explanatory Memorandum of the Extradition Act and the objects of the Extradition Act had led the High Court in Cabal to accept that bail is ordinarily refused because there is a presumption that a person sought for international extradition is a flight risk (citing Cabal (at [63])). The onus is on an applicant to demonstrate that the grant of bail would be justified on the separate grounds of 'special circumstances' and that the person does not present a real risk of flight (citing Cabal (at [70])).
61 The third point was, given the presumption that a person sought for international extradition is a flight risk, the 'special circumstances' condition prevents persons being at liberty because there is a very high risk of persons sought for extraditable offences absconding. His Honour stressed, however, that the risk of flight was a separate condition and it is a mistake to conclude that because an applicant has not fled Australia, that the person is not a flight risk in the face of potential extradition. His Honour quoted the following extract from Cabal (at [65]):
…Persons who have fled the extraditing country to avoid justice are persons who are likely to flee again. But it is a mistake to think that a person is unlikely to abscond simply because that person did not leave the extraditing country "to avoid justice"...
(Emphasis added.)
62 His Honour also noted Robertson J's decision in Barney (at [16] and [22]), where his Honour explained that 'special circumstances' in s 15(6) of the Extradition Act is a statutory expression that does not carry the ordinary English meaning of its constituent words. As an expression, it must be understood in the statutory context of the Extradition Act and understood as stated by the High Court in Cabal.
63 What was much at issue in the argument before the Magistrate and in the application before this Court was the question of whether flight risk could be part of the special circumstances considered in s 15(6) of the Extradition Act. The applicant strenuously contended that it could.
64 That view was not accepted by the learned Magistrate who (at [74]) recorded that the applicant had relied on several United States cases identified in Cabal which had been described as giving 'valuable guidance' as to what might be 'special circumstances'. The applicant had also referred to Perram J's observation in Green (at [23]), where his Honour considered the expression 'special circumstances'. However, the Magistrate considered that when Perram J observed that the expression 'special circumstances' is to be interpreted by reference to notions which involve a 'keen appreciation of the United States jurisprudence', that his Honour was simply addressing an assertion by counsel for Mr Green that 'special circumstances' was to be interpreted 'according to its common understanding'. The Magistrate continued (at [75]-[77]):
75. Moreover, the Applicant's lead counsel during oral submissions took my attention to parts of many United States cases including as far back as the 1903 when the Supreme Court of United States decided in Wright v Henkel 190 US 40 that in foreign extradition cases courts power to admit person to bail in special circumstances. These cases have been mentioned in detail in the Applicant's Outline of Submissions at paragraphs [17]-[41] inclusive and further addressed in oral submissions.
76. It is particularly noted that lead counsel for the Applicant submitted in oral argument that there was "a question that lies between" the Applicant and the Respondent as to whether "an absence of a risk of flight is a special circumstance". Lead counsel for the Applicant claimed that the United States cases offer guidance to the answer to that question.
77. Lead counsel for the Applicant mentioned a number of United States cases but it is sufficient to note that by reference to an earlier case of United States case of America v Smyth (1992) 795 Fed Sup 973 at page 976 District Court Judge Caulfield considered that risk of flight as a special circumstance but also that the Judge was certain that the lack of flight risk alone did not constitute sufficient special circumstances. That view was again repeated in case[s] after Cabal namely Re Extradition of Santos 473 F Supp 2d 1030, 1043 (CD, Cal 2006) per Magistrate Judge Wistich. Lead counsel for the Applicant submits that fits with what the High Court has said about how to interpret the [Extradition Act]. From that guidance lead counsel for the Applicant contended that the risk of flight is a circumstance to be considered within the "rubric of special circumstances" but the lack of flight risk alone did not constitute sufficient special circumstances.
65 His Honour rejected the contention that an absence of flight risk could be part of special circumstances. His Honour regarded as being particularly significant that in Cabal (at [57]) the High Court stated:
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.
(Emphasis added.)
66 On this basis, the Magistrate was of the view that the absence of flight risk was not to be considered as a special circumstance, contrary to those United States cases which might suggest otherwise. His Honour said '[b]ut moreover and persuasively, Robertson J in [Barney] at [33] stated very clearly that in light of Cabal "flight risk does not play a part in a "special circumstances"["]'.
67 As his Honour understood this submission from the applicant, it was to the effect that his Honour was required to have regard to United States decisions in determining what were 'special circumstances'. This contentious submission was neither rejected nor accepted by the Magistrate, who noted that it was not suggested for the first respondent that it was impermissible to have regard to the United States cases or cases in any other foreign jurisdiction, but that it was not necessary or appropriate to have regard to the United States cases in this instance because the law was that stated in Cabal and applied in subsequent cases in this Court. His Honour noted that recently in Ghodskani, Moshinsky J considered the applicable principle relating to bail under the Extradition Act because of the issues relevant to flight risk raised in that case. His Honour did not consider the United States cases, although he restated the High Court's observation that those cases 'give valuable guidance as to what constitutes special circumstances'.
68 Before the Magistrate, the applicant contended that there was a broad consistency in approach to this topic between the United States cases and the Australian cases post-Cabal. His Honour said (at [83]):
At this level of decision making I accept it is unnecessary nor appropriate to definitively reach any concluded opinion whether it is necessary or appropriate to have regard to the United States cases.
69 As will be seen, the applicant takes issue with this approach, contending that in this instance the Magistrate should have had regard to the United States cases or, at the very least, should not have considered that he should not have regard to them. As I pointed out in oral exchanges with counsel, the Magistrate did not reach either of those conclusions, but simply said that he was not expressing a view. As it happens, the Magistrate did have regard to some United States cases, but perhaps not in a fashion that met the expectations or hopes of the applicant.
70 As will be discussed below, the Magistrate was an administrative decision-maker in this instance and was certainly not required to have regard to case law in the United States. The Magistrate was required to apply the legislation as construed by the courts of Australia, notably the High Court and this Court. If the High Court and/or this Court choose to consider United States decisions in explaining or construing certain provisions of Australian legislation, those courts do so acting in a judicial capacity, rather than an administrative capacity. That is sufficiently apparent from Cabal, where it was said (at [75]):
Schoenmakers and Holt have proved influential in the determination of a number of subsequent cases in the Federal Court. But, for the reasons we have given, the two cases contain statements which are wrong and which should not be followed. It is unnecessary to examine the reasoning or decisions in subsequent cases in the Federal Court. In some cases bail has been refused; in others, it has been granted. Earlier in this judgment, we stated the principles that should be applied in determining whether to grant bail under the Act. Together with the assistance to be gained from the United States decisions on "special circumstances", those principles will enable the Federal Court to produce a consistent body of case law on the bail requirements of the Act.
(Emphasis added, citations omitted.)
71 The Magistrate also noted (at [86]):
Whatever else can be said about the United States cases as a guide to determining the existence of special circumstances it is clear that the United States cases also recognise that the absence of flight risk alone cannot be a special circumstance justifying a grant of bail. In Australia whether capable of being with the rubric of special circumstances or not the fact that there is not a real flight risk that is also not of itself enough to grant bail in extradition cases.
(Emphasis in the original.)
72 His Honour outlined the consecutive steps that he was following in reaching his decision. He said (at [88]-[93]):
88. First, in determining the existence or otherwise of "special circumstances" depends on the particular facts of the case and the entirety of the circumstances of the Applicant: Taylor v United States of America [2012] FCA 366. Plainly, applications for bail under the [Extradition Act] are based on a factual matrix that inevitably will "always raise matters of difficulty and sensitivity", as recognised French, Marshall and Kenny JJ stated in McDade v United Kingdom [1999] FCA 1685 at [16].
89. It follows as part of the first step that having considered the whole of the circumstances that are found to exist then, applying the law as stated in Cabal, the circumstance/s must necessarily then be within (or outside) the statutory expression "special circumstances" justifying a grant of bail. The circumstances need to be extraordinary in the sense used in Cabal at [52] and [61] citing Re Extradition of Morales (1995) 906 F Supp 1368 at 1373 (Morales) (SD Cal); that is "extraordinary and not factors applicable to all defendants facing extradition". That also probably invites some comparison or contrast with the position of persons facing similar charges: Untied [sic] States of America v Green per Perram J at [35].
90. This first step involves an assessment of an evaluative character of all the circumstances so found to exist as was aptly described by French J (as he then was) in Republic of Ireland v O'Donoghue [2004] FCA 1753 at [16]. Further, it is clearly recognised that it is not necessary to establish that any particular circumstance should be regarded as special and that several factors or circumstances in combination can constitute special circumstances justifying bail (see Cabal at [52] citing Re Extradition of Morales (1995) 906 F Supp 1368 at 1373 (Morales) (SD Cal) as applied other Federal Court decisions including Untied [sic] States of America v Green per Perram J at [20]). Indeed it has also been consistently said that "No package of circumstances can, or should, be said to be necessary to exist before s 15(6) is enlivened"': see Mansfield J Hellenic Republic v Konstantinou at [35].
91. Applying the law in Cabal the onus is on the Applicant to provide evidence that (i) circumstances exist that are different in kind from disadvantages that all persons facing extradition have to endure, and (ii) those circumstances justify remand on bail on that basis.
92. In the second step I also make clear is that, if after engaging in the evaluative assessment of the whole of the circumstances and if finding that either singly or combination circumstances do exist that properly characterised are within the meaning of special circumstances the Applicant must also further satisfied the condition that there is no real risk of flight.
93. If upon concluding there are special circumstances and no real risk of flight in a third step I must also consider the exercise of my discretion to make an order that the Applicant be remanded on bail as being appropriate and if so on what terms or conditions.
73 The Magistrate recognised (at [94]) that the applicant contended his circumstances were special, either singularly or in combination. There were 10 such circumstances stressed and the Magistrate proceeded to examine each of them in sequence and then collectively.
74 The general opposing submission from the first respondent was that the matters raised, individually and collectively, were not uncommon in extradition cases. The first respondent supplied a table (not before this Court) setting out Federal Court and High Court authorities on bail in matters arising in the Extradition Act and the circumstances relied on in those cases. This table was only provided as an indication of what might or might not constitute 'special circumstances'.
75 The first respondent submitted that the pressures pointed to on behalf of the applicant, in one form or another, were faced by many people who were detained, whether it be pending trial or pending extradition. It was emphasised that the circumstances faced by the applicant were no different from those faced by others facing extradition and did not, alone or in combination, satisfy 'special circumstances' within the meaning of s 15(6) of the Extradition Act.
76 Adopting the numbers the applicant adopted, the Magistrate evaluated each of the circumstances as follows.
(i) the applicant has long known and opposed extradition proceedings and has made no effort to avoid them or to escape or flee
77 The Magistrate generally accepted that submission. His Honour did not, however, attach any weight to the first respondent's failure through Australian-based solicitors to give notice of the proposed arrest. His Honour accepted that the applicant had since July 2016:
(a) known of pending charges against him;
(b) known of the prospects of an extradition request and the consequential extradition proceedings; and
(c) had not made an effort to leave Australia, thereby trying to flee to a jurisdiction which did not have an extradition treaty with the first respondent, such as Russia.
78 His Honour held (at [110]):
… I take the view that I must recognise and act on what the High Court clearly states in Cabal, that in my evaluation, these matters bearing on the question of flight risk [do] not play a part in "special circumstances".
79 The Magistrate did not regard the United States decision of In re Mitchell (1909) 171 F 289 (SD NY) as being binding on him. He also accepted the first respondent's submission that the applicant's offering to act in a cooperative manner was not of itself a special circumstance. He did not consider that this cooperation was different in kind from the disadvantages that all extradition defendants had to endure in considering special circumstances. There was nothing special or extraordinary in offering to cooperate. In that regard, his Honour considered he was reaching a conclusion consistent with that of Collier J in Taylor. His Honour said (at [112]-[113]):
112. I am reinforced in reaching that conclusion in my assessment by noting that in Taylor v United States of America [2012] FCA 366 Collier J reach a similar view when considering a bail application pursuant that ss26(6)(f)(iv) of the [Extradition Act] pending a judicial review of a decision by a magistrate under s19 of the [Extradition Act] that the Applicant Taylor was eligible to be surrendered to the Respondent. In that application the Applicant Taylor had like this Applicant relied on similar factors including that he had after being charged remained in contact with United States authorities and extensively cooperated with in relation to the charges. Whilst the Applicant in this case referred to what Collier J had stated at [25] in this respect I also note what His [sic] Honour said at [29] part of which reads:
".... The fact that Mr Taylor had co-operated with the US authorities prior to and following the indictment, while potentially testament to his good character, is not unusual or a "special circumstance":
I note that Collier J citied in that respect O'Donoghue v Ireland [2009] FCA 394.
113. To constitute "special circumstances", the matters relied on "need to be extraordinary and not factors applicable to all defendants facing extradition["].
80 His Honour concluded (at [114]):
Accordingly, in my evaluative assessment I have not been satisfied by the Applicant that having known since July 2016, being a relative long time, of the prospect or proposed extradition proceedings and not making any effort or attempt to escape or flee is not in itself a special circumstance or circumstances. The same can be said of the implication that the Applicant has been cooperative with authorities.
(ii) the offences for which the applicant's extradition is sought are 'bailable offences' under the laws of Western Australia and the laws of the United States
81 His Honour did not agree that this was a special circumstance. The applicant had relied on a 2010 United States decision of United States of America v Castaneda-Castillo (2010) 739 F Supp 2d (D Mass).
82 His Honour noted that the applicant had not identified any Australian authorities to support the submission that being bailable offences in both jurisdictions was a special circumstance. His Honour drew on Cabal and Ghodskani, saying (at [122]-[124]):
122. Whether the charged offences pending against the Applicant are bailable in Australia does not in my opinion properly go to the question of whether under the law declared in Cabal there exists special circumstances. I do not accept that the United States cases displace what was said in Cabal at [72] namely in part:
" ...In extradition cases, the general rule is that defendants are to be held in custody whether or not their detention is necessary. Only when there is something special about a defendant's circumstances can the question of bail be considered. For that reason, it is erroneous to take into account "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".["]
123. As pointed out in the Respondent's submissions this position was reiterated by what was said in Ghodskani v Untied States of America by Moshinsky J at [18] stated:
"[In Cabal] At [72], the High Court acknowledged that a court may take into account those circumstances that ordinarily would fall for consideration on an application for bail where a person is charged domestically for the commission of a crime. The High Court said that such circumstances "may be taken into account in considering the exercise of discretion after special circumstances have been established". It was emphasised, however, that "they can play no part in determining whether the applicant has established special circumstances".
124. Applying the law in Cabal and in my evaluative assessment I have not been satisfied by the Applicant that the offences for which the Applicant's extradition is sought are "bailable offences" under the laws of Western Australia and the laws of the United States of America is not in itself a special circumstance or circumstances.
(Emphasis added.)
(iii) the applicant has lived openly and notoriously under his true name and there has been no concealment of his identity
83 Again, in substance, his Honour accepted these factual submissions and noted that there were United States cases in which it was concluded that similar facts may constitute a special circumstance: Artukovic v Boyle (1952) 107 F Supp 11 (SD Cal) per Hall J. That case was decided in 1951 where Hall J in granting bail to a petitioner whom Yugoslavia sought to have extradited on a charge of 'having murdered or caused to be murdered' stated (at 15):
Another special circumstance is the fact that while [the petitioner] came to this country under an assumed name, shortly after his arrival ... he disclosed his true identity to the State Department ... Since that time and since he came to California he has lived openly and notoriously under his true name. His wife and his children likewise have lived openly and notoriously under their true names. His children have been attending school under their true names. So there has been no concealment of his identity here and no continued concealment, and there was a revelation of his true identity long before any demand was made, according to the evidence presented before me, for his extradition to Yugoslavia.
84 However, there were, in his Honour's view, far more pertinent Australian authorities from this Court in which it had been held that living openly and not as a 'fugitive' was not a special circumstance, citing Taylor (at [33]); United Kingdom v Forsyth (No 2) (2003) 132 FCR 418 (at [8]); O'Donoghue v Minister for Immigration and Citizenship [2010] FCA 1486 (at [33]); Republic of Poland v Ginter [2009] FCA 262 per Gilmour J (at [13(b)]); and Adamas v The Hon Brendan O'Connor (No 3) [2012] FCA 365 per Gilmour J (at [28(f)] and [29]).
85 In each instance, in those cases, living openly under the applicant's true name, together with other circumstances, did not amount to 'special circumstances'. His Honour was not satisfied the matters relied upon were extraordinary and considered they were not factors putting the applicant in a position different from other persons facing extradition. It was not unusual, his Honour said, for proposed extraditees to have been Australian citizens with family connections in Australia, known to have lived openly and not concealed from the authorities their identity, when facing extradition.
(iv) there is a 'serious risk of deterioration' of the applicant's health if he were remanded in custody rather than on bail
86 It was common ground that 'imprisonment causing a serious deterioration of health' may constitute a special circumstance.
87 His Honour was not satisfied however, on the evidence, that if the applicant were kept in custody and not released on bail during the extradition proceedings that there would be a serious deterioration to his health. The evidence did not show that the applicant's medical conditions could not be adequately managed in custody. His Honour examined the evidence on this topic closely, including further evidence from the Western Australian Department of Justice, Corrective Services, from which his Honour accepted that persons entering a custodial setting undergo a 'comprehensive nursing health assessment within 24 hours of admission'. Mental health services were also available. There was no cogent evidence that if further referral, treatment or placement was required, mental health services, such as clinical assessment treatment and management, ongoing monitoring and support, counselling and psychiatric services would not be available to the applicant in custody. There were also appropriate arrangements for the taking of medication in custody. His Honour accepted that such services would be more likely to be accessible if he were on bail.
88 His Honour said (at [152]-[153]):
152. If medically reviewed in a custodial setting I am also unpersuaded that counselling could not be provided despite the view of Dr Pascu that mental health and psychological services in prison are focussed on people with behavioural disturbances who create problems in prison.
153. After careful reflection and weighting [sic] the competing information I can accept that if the Applicant remains in custody and not receive psychological support that he will require there is likely to be an increase in his level anxiety and depression or put another way develop further depressive episodes. That is to be expected given the prospects that he may be held eligible for surrender and taken to the United States of America to face in due course trial on criminal charges in that country while separated from children and other loved ones. The deterioration of the Applicant's mental, in isolation from any other cause of any deterioration in his health, is no different from the disadvantages to be suffered in my assessment by any other extradite. In other words the deterioration of health on account of there is likely to be an increase in his level anxiety and depression or that he develops further depressive episodes I would not assess alone as being a special circumstance. If I am wrong in reaching that assessment I would observe that I would consider it as not being a cogent special circumstance.
89 His Honour then proceeded to deal with the lumbar inflammatory disk and accepted that it would not be possible for the applicant to continue with his hydrotherapy program. I set this consideration out in full as there is a challenge to the fact finding (at [160]-[163]):
160. The evidence from Corrective Services which I accept makes clear that private health service providers such as physiotherapists provide services to person in custody but hydrotherapy is not available. Physiotherapy is a treatment that the Applicant has utilised in the past although he stopped such treatment for some unknown reason in the past over a year before being reviewed by Dr Hardcastle in April 2018. There is no evidence that physiotherapy would not be an effective substitute for hydrotherapy in combination with other exercises as recommended by Dr Hardcastle namely "some walking" and "upper limb exercises". There is nothing to suggest that those forms of exercise could not be undertaken or that physiotherapy if required could not be provided whilst in custody.
161. On the whole of the 2 reports of Dr Hardcastle, if remanded in custody I do accept the Respondent submission that Dr Hardcastle's opinion regarding the need for or timing of other treatments including injections and surgery remain unaffected. On my reading of Dr Hardcastle's report, realising that he last reviewed the Applicant in April 2018, there is no clear opinion that expresses that continued incarceration of the Applicant in custody is likely to cause a serious deterioration in the Applicant's health. If that was his opinion then I would have expected that opinion to be made abundantly clear or those legally assisting the Applicant to ensure that such opinion was made clear and known. The expression "would have an impact on [the Applicant's] treatment and rehabilitation specifically hydrotherapy" in my judgement falls significantly short of enabling me to draw a reliable inference that incarceration of the Applicant in custody is likely to cause a serious deterioration in the Applicant's health.
162. In my assessment, the Applicant has not shown that due to his lumbosacral inflammatory disc problem/medical condition, if he is kept in custody and not released to bail during the extradition proceedings, that his medical situation rises to a threshold that I am satisfied the Applicant would be caused a serious deterioration in his health. I am also of that mind even when that condition is considered in combination and account is taken of the circumstance that there is a likelihood of the Applicant developing further depressive episodes as described by Dr Pascu.
163. In respect to these asserted health concerns the Applicant has not shown that there is any special circumstance in their own respective/combined rights for the purposes of ss15(6) of the [Extradition Act]. As mentioned I certainly do not consider these to be cogent, if they are contrary, to my view special circumstances. The evidence suggests strongly that as a resilient young man these medical conditions can be managed by the Applicant with and the through the services provided by Corrective Services in the discharge of its duty of care while the Applicant remains in custody.
(Emphasis added.)
(v) the applicant's family background favours a grant of bail
90 His Honour accepted for the purposes of analysis:
(a) the applicant has a close supportive family that includes the support of the applicant's parents;
(b) despite their separation, the applicant and his wife remain amicable and mutually supportive and both are focused on protecting the wellbeing of their children in a cooperative manner;
(c) together with his wife, the applicant has had, until his arrest, an ongoing, regular, caring and supervisory role with each of their young children; and
(d) the applicant has developed natural loving bonds with his children and his children have, to varying degrees, grown dependent on his ongoing care and support which has resulted in negative or adverse impacts both emotionally and mentally on each of their wellbeing since the applicant has been absent and in custody.
91 His Honour also accepted that the applicant's wife and his mother had noticed changes in the applicant's children and that they each hold understandable concerns about the children's behaviour and how they might cope emotionally and mentally in the future in the absence of their father if the applicant remained in custody.
92 It was then noted that the applicant had pointed to several United States and Australian cases which had taken into account an extraditee's closeness with family members, some of whom were emotionally and mentally dependent on the extraditee, in finding 'special circumstances'. Although, his Honour noted that this was usually in conjunction with other factors.
93 It was observed, however, that there were, in contrast, decisions of this Court where family connections and dependency, both emotionally and financially, were not considered singularly or in combination to be 'special circumstances'. For example, in Taylor, Collier J had stated relevantly (at [29]):
I note Mr Taylor's contentions in relation to the prospective damage to his business affairs should he remain in custody until review of the decision of the Magistrate, however such unfortunate consequences are potentially applicable to any person seeking bail pending review of a determination of extradition eligibility. I also note Mr Taylor's close family and friendship bonds in his place of residence, but again these advantages are not unusual in respect of applicants in his position, as is clear from such cases as Barney v United Kingdom, Haddad v Lyon and O'Donoghue v Ireland.
(Emphasis added.)
94 His Honour noted, all those cases involved an evaluative assessment of the extraditee's family background and turned upon particular facts which existed in some cases and not others.
95 His Honour approached consideration of this topic in the following way (at [170]-[172]):
170. In my assessment, the family background that is characterised by the supportive relationships that pervade the Applicant's family dynamics, his caring supervisory focus on raising his young children who are dependent emotionally and mentally on the Applicant are not extraordinary or carrying a quality of speciality. As a parent the Applicant is fulfilling the expected responsibility of any and all normal parents whether separated or not from the other parent. These are circumstances, in my opinion generally which are applicable to all persons in the Applicant's position facing extradition. Inevitable there are unfortunate albeit regrettable impacts or pressures upon loved ones that flow from remaining in custody pending the determination of the surrender in accordance with the [Extradition Act] following an extradition request.
171. I have disciplined my mind to not allow the sympathy that I necessarily have for the Applicant's children to determine this application for bail other than in accordance with the law declared by High Court in Cabal. Despite the subjective views of the Applicant's wife and his mother the sad impacts suffered by his children since their daily physical connections with the Applicant have been severed are not so extraordinary that I would reach another conclusion other than to conclude that the family background do not come within the meaning of special circumstances. There is not any cogent medical or other expert evidence that sheds any significant insight into the psychological impact on either or both the Applicant children although common sense and experience of human affairs would suggest that there is likely to be to some extent such impact.
172. The regrettable impacts on the Applicant[']s parents and his wife are not underestimated and no doubt emotionally real for each of them. However, those circumstances, in my opinion generally are applicable to all persons in the Applicant's position facing extradition. Again the impacts on the Applicant[']s parents and his wife whilst regrettable are expected normal impacts or pressures upon loved ones that flow from remaining in custody pending the determination of the surrender in accordance with the [Extradition Act] following an extradition request.
(Emphasis added.)
(vi) the applicant is not and never has been a fugitive from justice
96 Despite citing a United States authority relied upon by the applicant (Re Extradition of Molnar (2002) 182 F Supp 684 (ND III)) in favour of this factor being relevant, his Honour took the view that the contention did not establish any 'special circumstances'. It was not extraordinary, he said, that offences were alleged to have occurred against the laws of another country by people who have not set foot in that country either at all or at the time of the alleged offending. The High Court recognised the 'transnational' nature of criminal activity in Cabal (at [65]) when discussing flight risk.
(vii) there is uncertainty regarding the merits of the request for the applicant's extradition
97 The Magistrate recorded that s 19 Extradition Act proceedings had yet been commenced. The applicant was only eligible for surrender if all of the requirements set out in that section were satisfied. No arguments had been advanced specifically on the merits of the request in the context of the bail application before the Magistrate. At this point, there was no decision under review where facts had been found. However, certain assertions were advanced to show uncertainty regarding the merits of the request for the applicant's extradition. His Honour was not able to evaluate them, but did not dismiss them. Ultimately, it came down to whether the fact that arguable contentions had been raised on the merits of the request was sufficient to constitute special circumstances. His Honour held it was not.
(viii) the applicant is not a flight risk
98 The applicant contended below, as he did before this Court, that because he has long known of the prospect of the extradition proceedings and made no effort to flee whilst living openly in his own name, that he had demonstrated that he was not a flight risk. Again, the applicant relied on United States authority in Molnar and Wroclawski v United States of America (2009) 634 F Supp 2d 1003 (D Ariz) per Murguia J. His Honour noted that against these cases the High Court in Cabal noted that there was United States authority that special circumstances did not exist when there was a low risk of flight: United States v Leitner (1986) 784 F 2d 159 (2nd Cir).
99 His Honour also had regard to what Robertson J said in Barney (at [33]) and the High Court's observations in Cabal (at [61]).
100 In Barney, Robertson J said that important to the evaluation was the fact that the applicant there accepted that, in light of Cabal, flight risk does not play a part in 'special circumstances'. In Cabal (at [61]) it was noted that there were two conditions to be met before bail was granted. First, 'special circumstances' must arise and secondly, there must be no real risk of flight. The Magistrate observed (at [191]):
… The risk of flight must as [sic] arise after the conclusion that there are special circumstances. That the risk of flight is separate and not in itself capable of being a special circumstance must be so and must arise from the High Court's statement "Absence of flight risk is ordinarily a necessary but not sufficient condition of bail".
101 His Honour took the view that the United States cases relied upon by the applicant were neither guides nor persuasive to the assessment of the special circumstances consideration given what the High Court said in Cabal.
102 Even, accepting for the purposes of this assessment that the applicant was not a flight risk, the Magistrate rejected that the circumstance was within the meaning of 'special circumstances' for the purposes of s 15(6) of the Extradition Act. He also noted that if the applicant were properly to be assessed as not being a flight risk, that circumstance alone was insufficient to justify a grant of bail even if guided by the United States cases.
(ix) the applicant (i) is a citizen of Australia; (ii) is sought for a crime that occurred (if at all) principally - if not exclusively - in Australia; (iii) would be eligible for bail if charged with a similar offence in Western Australia; and (iv) is not faced with opposition from the United States as to his release on bail
103 His Honour accepted that the applicant was an Australian citizen. He seemed to accept that he is alleged to have committed offences 'principally in the United States' as pleaded in the indictment (although, as discussed below, this seems to be an oversight as his Honour clearly understood from his reasons and the indictment that it was contended that while the purported offences were deemed to be in the United States, the applicant's activity was mainly in Australia).
104 He accepted that the applicant would be eligible for bail if similarly charged in Western Australia and probably would also be granted bail without opposition from prosecutors if he surrendered to a United States court.
105 Again, the applicant relied upon United States authority (Matter of Extradition of Sacirbegovic Unreported, United States District Court, SD NY, Maas USMJ, 2 July 2004 (2004 WL 1490219)). However, his Honour said that the applicant did not identify any Australian authority to support the submission that being charged with what would be 'bailable' offences in both jurisdictions constituted 'special circumstances'. His Honour rejected the contention that, 'being an Australia citizen charged with "bailable" offences in Australia and the United States' properly went to the question of whether under the law declared in Cabal there existed 'special circumstances'. He said he was reinforced in his conclusion by the additional view that the position of the United States prosecutors as to whether bail would be agreed to in a United States court was a matter concerning domestic bail in the United States and does not take into account the need for 'special circumstances' on the question of bail in an extradition context. His Honour followed what was said in Cabal (at [72]), namely:
[T]he general rule is that defendants are to be held in custody whether or not their detention is necessary. Only when there is something special about a defendant's circumstances can the question of bail be considered. For that reason, it is erroneous to take into account "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".
He noted that this position was followed by Moshinsky J in Ghodskani (at [18]). His Honour concluded that applying the law in Cabal, and in his own evaluative assessment, he was not satisfied 'that these combined circumstances or singly identified as item (ix) are a special circumstance or circumstances'.
(x) the applicant (i) has a close-knit family who will seek to ensure his presence at the eventual hearing; (ii) is needed by his family; and (iii) retains no passport
106 His Honour was of the view that those matters were matters which might ordinarily fall for consideration on an application for bail by a person charged with a domestic offence or go to the question of flight risk, which risk does not play a part in special circumstances. He reiterated what was said by Moshinsky J in Ghodskani (at [18]). He also referred to other decisions of this Court, including Ginter where Gilmour J said (at [22]):
The fact that the first respondent has no current Polish or Australian passport is not, inevitably, a barrier to flight. The case of Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 demonstrates this point. Schoenmakers had, as a condition of his bail, been required to surrender his passport to the Australian Federal Police. Nonetheless he managed to flee from Australia to Thailand upon his release on bail from extradition detention: Cabal at [67].
107 His Honour also cited Snedden v Republic of Croatia [2007] FCA 1902 (at [38]), where Cowdroy J, referring to Vasiljkovic (at [60]), stated that the provision of sureties by Mr Snedden's brother, sister and friend did not constitute special circumstances and did not 'outweigh the greater public interest in ensuring that Australia's treaty obligations are met'.
108 His Honour did note that Perram J, in Green (at [24]-[25] and [37]), took the view that a similar combination of factors may constitute special circumstance justifying bail. However, the Magistrate did not consider that the finding in Green was determinative of his own evaluation of the specific circumstances of the applicant. In his Honour's assessment the applicant having a close-knit family (which had already been considered as part of the family background) did not warrant the characterisation of extraordinary or special and, therefore, did not amount to special circumstances. That remained his view even when coupled with the circumstances that the applicant was needed by his family who would ensure his attendance at court, including by having sureties. Those circumstances were not extraordinary in his assessment and were not circumstances that put the applicant in a position different to other persons facing extradition.