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).