United States of America v Green

The issues which arise 10 Following Mr Green's arrest under the provisional arrest warrant the matter was governed by s 15 of the Extradition Act 1988 (Cth). Subsections (1), (2) and (6) provided: (1) A person who is arrested under a provisional arrest warrant shall be brought as soon as practicable before a magistrate in the State or Territory in which the person is arrested.

(2) The person shall be remanded by a magistrate in custody, or, subject to subsection (6), on bail, for such period or periods as may be necessary for proceedings under section 18 or 19, or both, to be conducted.

(6) A magistrate shall not remand a person on bail under this section unless there are special circumstances justifying such remand.

11 It will be seen that s 15(2) contemplates the possibility of bail being granted during the pendency of proceedings under ss 18 and 19. There is no need to set forth those provisions. They concern the processes by which a person who has been arrested on a provisional arrest warrant may be surrendered to the State requesting extradition. The power to admit Mr Green to bail conferred by s 15(2) is, however, subject to the limitation in s 15(6) that this shall not be done unless there are "special circumstances" justifying such remand. 12 The nature of a decision made by a magistrate under s 15(2) would appear to be of an administrative nature. Both parties assumed this to be so. That assumption is consistent with the view that the entire process conducted by a magistrate under Part II of the Act is administrative: Vasiljkovic v Commonwealth (2006) 227 CLR 614 at 626-627 [28] per Gleeson CJ, 636 [58] per Gummow and Hayne JJ (with whom Heydon J relevantly agreed); Pasini v United Mexican States (2002) 209 CLR 246 at 254-255 [16]-[18] per Gleeson CJ, Gaudron, McHugh and Gummow JJ, 264-265 [48]-[50] per Kirby J. Neither of those cases directly addresses the issue of whether a decision to remand on bail under s 15(2) involves an exercise of judicial power, rather, they focus on the process of surrender itself. Without expressing a concluded view, it is likely that a power to admit a person to bail takes its nature from the character of the officer in whom the power is reposed, here a magistrate acting persona designata: cf. Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 191. 13 It follows that the magistrate was not obliged to give reasons for his decision under s 15(2) for reasons are not a mandatory incident of administrative decision-making: Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 669 per Gibbs CJ (with whom Wilson, Brennan and Dawson JJ agreed). None of the significant statutory inroads into that rule presently apply: cf. s 25D of the Acts Interpretation Act 1901 (Cth) or s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). 14 Be that as it may, when the magistrate granted Mr Green bail he gave brief reasons for so doing. These reasons were recorded on the transcript as follows: Mr Green brings a bail application in respect to an extradition proceeding the United States have already given an indication in terms of the firearm matter, being a firearm on a rural property that was not appropriately secured. According to the material that has been placed before the court the prosecution case indicate that Mr Green was detained in the United States for a serious offence, ultimately he not attending court, removing himself from the United States back to Australia allegedly by reason of obtaining some form of an interim passport.

Since that date, it would appear as though he has been residing in the main in the Guyra area, working a property. I have already indicated that I am certainly not of the view on its own the working of the property and his need to be on that property would satisfy special circumstances. I also appreciate his parents desire to have their son working on the property and by reason of not only his work ethic but his specific skills, I'm certainly of the view there are other persons who could equally discharge those skills.

Perhaps what can be identified in terms of the first test in the Kable case of special circumstances is he comes from a close family unit and there is a desire from his father to ensure his ultimate attendance in court, no doubt subject to potential litigation but of course that is no doubt a factor that will be determined at the appropriate point in time.

I have already given an indication as to the passport matters based upon my very brief facts and the unlikelihood of a custodial term being forthcoming in respect of those but, of course, I make the observation of that at a very early point in time and certain circumstances may change. Another colleague of mine may well adopt a different attitude.

At this point in time in terms of special circumstances I am certainly satisfied that he does come within the definition of a person who has responsible parents who will endeavour to ensue his attendance at trial and based upon the security that is being recently offered I am of the view could ensure that he does not become a flight risk as far as one can determine that.

15 The United States' application to this Court is for orders in the nature of certiorari quashing the magistrate's decision to grant bail and mandamus compelling the magistrate to consider and determine Mr Green's application according to law. The United States says that certiorari should issue because of the commission by the magistrate of jurisdictional error consisting of two errors of law committed in the course of reaching his decision. The first was said to consist of his conclusion, on the facts as found by him, that there existed special circumstances within the meaning of s 15(6). The second, so it was submitted, was the magistrate's decision to take into account the bail conditions he proposed to impose on Mr Green in assessing whether there was a flight risk. 16 Because the magistrate was acting in an administrative capacity it follows that any error of law which caused him to reach a wrong conclusion affecting the exercise of his powers was a jurisdictional error: Craig v South Australia (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ.

First issue - special circumstances 17 The expression "special circumstances" in the context of the Extradition Act 1988 (Cth) was considered by the High Court in United Mexican States v Cabal (2002) 209 CLR 165 ("Cabal"). Although the Court was examining the meaning of that expression in s 21(6)(f)(iv) of the Act it was plainly of the view that the expression in that provision bore the same meaning as it did in s 15(6): 209 CLR 190-191 [60]. 18 In Cabal the Court noted that the requirement of special circumstances seemed to have its origins in United States extradition law (209 CLR 183 [47]), a view confirmed by Gummow and Hayne JJ in Vasiljkovic v Commonwealth (2006) 227 CLR 614 at 637 [60]. For that reason, the United States cases about the meaning of that expression can "give valuable guidance as to what constitutes special circumstances": 209 CLR 185 [52]. The Court canvassed a number of situations which the United States cases had considered. For present purposes, four points were made which are pertinent. 19 First, a factor which applies to all defendants facing extradition cannot constitute a special circumstance: 209 CLR 191 [61] citing Matter of Extradition of Morales (1995) 906 F Supp 1368 at 1373 (SD Cal). 20 Secondly,it is not necessary to establish that any particular circumstance should be regarded as special; several factors in combination can constitute special circumstances justifying bail: 209 CLR 186 [52] citing Morales at 1373. 21 Thirdly, that extradition proceedings may be lengthy will not constitute special circumstances unless there has been some unusual delay: 209 CLR 186 [54]. The Court cited, inter alia, Hababou v Albright (2000) 82 F Supp 2d 347 at 351 (DNJ). In that case, the District Court refused bail even though the defendant's extradition hearing might have been delayed for at least a year because he had to answer criminal charges in the United States as well as the extradition charges. 22 Fourthly, the Court noted that there was authority for the proposition that special circumstances were established where there was a likelihood of delay, the defendant had no passport, was not a danger to the community and had responsible parents who would ensure his presence at trial: 209 CLR 188 [56]. The Court cited the District Court's decision in Beaulieu v Hartigan (1977) 430 F Supp 915 (DC Mass) and noted that that position had been affirmed by the Court of Appeals for the First Circuit at (1977) 554 F 2d 1. 23 The question of whether "special circumstances" were established on the facts taken into account by the magistrate was a question of law: Hope v Bathurst City Council (1980) 144 CLR 1 at 7 per Mason J (with whom Gibbs, Stephen, Murphy and Aickin JJ agreed); Ergon Energy Corp Ltd v Commissioner of Taxation (2006) 153 FCR 551 at 563-564 [46]‑[47] per Sundberg and Kenny JJ. Mr Williams SC, who appeared for Mr Green, submitted that the expression was to be construed on the basis that the words were used according to their common meaning. If correct, this meant that review of the magistrate's interpretation was available only if it was unreasonable. However, I perceive nothing in Cabal which would indicate that the expression "special circumstances" is to be interpreted according to its common understanding. To the contrary, the burden of Cabal is that the expression is to be interpreted by reference to notions which involve a keen appreciation of the United States jurisprudence. 24 It is useful then to turn to the facts found by the magistrate. He accepted the following matters: (a) Mr Green was working on a property in the Guyra area and that he needed to be on that property; (b) his parents desired to have him work on the property by reason both of his work ethic and his skills; (c) other persons could, however, provide those skills; (d) he came from a close-knit family unit; (e) there was a desire on the part of his father to ensure his ultimate attendance at court; (f) it was unlikely that he would receive a custodial sentence in relation to the passport offences but another magistrate might take a different view; and (g) he had responsible parents who would endeavour to ensure his attendance at court. 25 The magistrate was of the view that (a) and (b) did not constitute special circumstances. My reading of his reasons suggested that he thought (d) went some way toward establishing special circumstances. The precise reasoning of the magistrate is not entirely clear but consistent with the injunction in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJagainst over-zealous parsing of administrative decision-makers' reasons I would incline to the view that it is more likely than not that the magistrate took each of the matters in paragraphs (a)-(g) into account and, treating them compendiously, decided that together they made out special circumstances. 26 Where a decision-maker is under an obligation to state the findings of fact upon which a decision is based - as, for example, the Administrative Appeals Tribunal is by force of ss 43(2)-(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) - it may be inferred from the absence of a particular finding of fact in the Tribunal's statement of reasons that the Tribunal did not take that factual matter into account: Minister for Immigration v Yusuf (2001) 206 CLR 323 at 330 [5] per Gleeson CJ, 338 [37] per Gaudron J and 346 [69] per McHugh, Gummow and Hayne JJ. In this case, however, the magistrate was not under an obligation to state the factual matters he took into account or even to give reasons for his decision. Quite apart from his written reasons it is possible that it may be inferred that he took other matters into account. Such inferences may be drawn from the material which was before him and the way in which the bail application was conducted. 27 I would infer from these materials that the magistrate also took into account the fact that Mr Green no longer had his United States passport. The evidence before him was to this effect and it was the subject matter of an express submission to him by counsel for Mr Green. Importantly, it was the subject of a written submission by the United States which linked the non-possession of a passport to the High Court's decision in Cabal. 28 I would also infer that the magistrate took into account the fact that the Australian passport offences were likely to delay the extradition proceedings. Counsel for Mr Green submitted to the magistrate that the usual practice was for the domestic offences to be determined in advance of the extradition proceedings. He submitted that the delay for those offences could be 12 to 18 months. The magistrate noted in argument that the matter might be shortened by Mr Green entering a plea. The United States submitted that Mr Green could speed up the process by consenting to the offences being tried summarily and submitted that "a usual amount of delay does not qualify [as] special circumstances". In those circumstances, I conclude that it was not really in issue before the magistrate that the passport offences would delay the extradition. I do not infer, however, that the magistrate took into account a finding that that delay was exceptional in nature. 29 Once that is accepted, the facts bear some similarity to those in the case referred to by the High Court, that is, Beaulieu v Hartigan (1977) 430 F Supp 915 (DC Mass). The similarities include the apparent possibility of a delay caused by the passport matters, Mr Green not having any passport and his having responsible parents who would ensure his presence at the trial. The High Court's recitation of the facts in Beaulieu included, however, an additional element which was that the applicant for bail was not a risk to the community. The magistrate in this case did not make an express factual finding about that matter. 30 I do not think that it is open to me to infer the making of such a finding by the magistrate. There was material before the magistrate capable of supporting a conclusion in either direction on the issue. Mr Green had been charged in the United States with rape and reckless endangerment of life and here with a firearm offence which could readily have formed the basis for a finding of fact that he was a risk to the community. On the other hand, the offences in the United States were said to have been a number of years ago, there was no other evidence of any further violent behaviour and the firearm offence - which related to keeping a registered weapon in an unsecured state in a bedroom - was capable of being seen as trivial in the context of a farm. 31 The United States expressly disclaimed the notion that the identification of the matters making up special circumstances were jurisdictional facts which this Court could or should determine for itself. Accordingly there can be no justification for proceeding other than on the basis that the magistrate did not take into account any possible risk to the community. This unfortunate collocation of negatives is not the same, it should be noted, as a finding that he was a risk to the community. 32 It follows that the High Court's interpretation of Beaulieu v Hartigan does not directly apply because one of the factual components - a finding of an absence of risk to the community - is itself missing. 33 Mr Lloyd SC, who appeared for the United States, submitted that the High Court's reliance upon Beaulieu v Hartigan as authority for the proposition that the circumstances identified in that case could constitute special circumstances was in error. The High Court's reference to the decision is a reference to the District Court's decision. However, the High Court also noted, in footnote 97 at 209 CLR 188 that the District Court's decision was "affirmed (1977) 554 F 2d 1 (1st Cir)". Mr Lloyd submits, and I accept, that this is wrong. In fact, the Court of Appeals for the First Circuit vacated the District Court's grant of bail and remanded the matter as can be seen at (1977) 554 F 2d 1. Be that as it may, I do not think that I should, or can, depart from the High Court's interpretation of Beaulieu v Hartigan. This is because one cannot tell whether the High Court was approving the District Court's decision (regardless of whatever decision was made by the Court of Appeals for the First Circuit) or whether it was approving the District Court's decision because that decision was perceived to have been upheld by the Court of Appeals. The resolution of that debate is not for a single judge of this Court. 34 The question of whether special circumstances are made out is then uncontrolled directly by anything said in Cabal. Perplexingly for those who must apply the special circumstances test, the acceptance in Cabal that multiple non-special circumstances may constitute, taken together, special circumstances is unaccompanied by any hint as to how the cumulative effect of such circumstances is to be assessed. For example, it is possible to take three elements from the list of cases set out by the High Court which do not constitute special circumstances (209 CLR 187-288 [55]) and to pose the question whether, taken together, the combined circumstances became thereby special. Cabal does not exclude the possibility that such a combination of elements may constitute special circumstances but it provides no direct guidance as to how specialty, in those circumstances, is to be divined. 35 The only guides seem to be, first, that the circumstances need to be extraordinary in the sense used in Morales; that is "extraordinary and not factors applicable to all defendants facing extradition" (209 CLR 185-186 [52], 191 [61]). The second is that that comparison probably also invites some contrast with the position of persons facing similar charges. So much, I think, flows from the statement in Cabal that the circumstances should be "different from the circumstances that persons facing extradition would ordinarily endure when regard is had to the nature and extent of the extradition charges" (209 CLR 191 [61]). Both statements are difficult to apply too. Do the words "not factors applicable to all defendants facing extradition" explain the word "extraordinary" or are they, rather, expressed in apposition? If the latter, then Cabal stands for the proposition that "special" means "extraordinary", which is difficult to reconcile either with the text of s 15(6) or the length of the Cabal decision itself. If the former, then the test is easy to apply - are this extraditee's circumstances different to the circumstances of all other extraditees? - but, satisfaction by an extraditee of such a test need hardly mean that his or her circumstances deserve the appellation "extraordinary" or even "special". The problem is that every extraditee's circumstances differ from every other extraditee's circumstances in some way. The real task at hand is to ascertain the relevant distinctions from the irrelevant ones, a task in which, I confess, I am not much assisted by words such as "extraordinary" or "special". 36 It seems to me that the preferable reading of Cabal is that it requires factors not applicable to all defendants facing extradition in some way which is relevant to the concept of "specialty". This is what the passage at 209 CLR 191 [61] seems to say. The addition of the word "extraordinary" is not intended, I think, to be a superaddition to the word "special". 37 Approaching the matter that way it seems to me that having a close family unit who will seek to ensure Mr Green's presence at the eventual hearing, being needed on the farm, having no passport, being confronted with domestic offences which may take some time to come to trial and the proceedings quite possibly not resulting in a custodial sentence are a set of factors which are not, in combination, possessed by extraditees generally or by extraditees sought on rape and reckless endangerment charges. Further, I think they sufficiently differ from the position of other extraditees (both generally and in the case of extraditees facing rape and reckless endangerment charges) to be called special and, if necessary, extraordinary. I would conclude, therefore, that there are special circumstances within the meaning of s 15(6).

Discretion 38 The power to grant bail, therefore, arose and the magistrate did not exceed his jurisdiction simply by so concluding. 39 Mr Lloyd submitted that the magistrate had erred in his approach to the question of flight risk. There are two passages in Cabal dealing with this. The first is at 209 CLR 189 [57] and is in these terms: The risk of flight

In the United States, the practice is to consider the risk of flight and only then to consider whether special circumstances exist. If there is a real risk of flight, the application for bail is refused whatever the special circumstances may be. 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.

40 The second is at 209 CLR 191 [61] and is in these terms: 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 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.

41 Mr Lloyd submitted that the emphasised words show that flight risk was to be considered independently of the bail conditions imposed. The immediately following words suggest that the history and character of the defendant are a surer guide than bail conditions. Mr Williams forcefully submitted that the High Court could not have meant that bail conditions were entirely irrelevant to flight risk, that such a view was difficult to maintain at the level of principle and that there was a distinction to be drawn between major money laundering cases such as Cabal and cases such as the present. 42 It is not for me to pass on the wisdom of an approach that excludes entirely the possibility of bail conditions being relevant to flight risk; still less to meditate upon whether support for such a curious view might find a foothold in the blank face of s 15(2) itself. Instead, I am bound to implement what the High Court has said and what the High Court has said is, so it seems to me, quite clear. Bail conditions are not to be taken into account in assessing the risk of flight. 43 According to the transcript, the magistrate said: … and based upon the security that is being recently offered I am of the view could ensure that he does not become a flight risk as far as one can determine that.

44 Mr Lloyd said that this was a clear example of that principle being infringed. Mr Williams put four matters against this: (i) the need to avoid over-zealous reading of reasons for administrative decisions; (ii) the fact that the magistrate did not have to produce reasons at all; (iii) the fact that both parties had submitted that bail conditions could not be taken into account in assessing flight risk. It should not in that circumstance, he submitted, lightly be thought that the magistrate had ignored a proposition which both parties had expressly agreed to be correct; and (iv) the magistrate needed to assess flight risk to formulate the bail conditions in any event. Thus, so it was submitted, the interpretation of the magistrate's reasons needed to be approached on the basis that at some point that question had to be addressed. Its location in the reasons was unfortunate but understandable. 45 There is force in Mr Williams' submissions but in the end I am driven to the conclusion that the magistrate did take into account the bail conditions in assessing flight risk. This is, Cabal holds, an erroneous way of assessing flight risk which directly affected the outcome of the magistrate's deliberations. It follows that it was the commission of a jurisdictional error in the hands of the magistrate: Craig v South Australia (1995) 184 CLR 163.

Conclusion 46 The magistrate was correct in concluding that special circumstances were demonstrated. However, he erred in assessing flight risk by taking into account the bail conditions he proposed to impose. The United States is entitled to the relief it seeks. I will entertain argument as to costs. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate: Dated: 12 June 2009 Counsel for the Applicant: Mr SB Lloyd SC

Solicitor for the Applicant: Commonwealth Director of Public Prosecutions

Counsel for the First Respondent: Mr N Williams SC