The applicant submitted that the bail should be granted because there are special circumstances, namely:
(I) unusually onerous conditions of remand incarceration, which are unlikely to improve;
(II) the likelihood that those conditions will exacerbate the applicant's pre-existing mental health problems; and
(III) the applicants close, co-dependent relationship with his parents and their dependence upon him to assist them in the home.
It was further submitted that the applicant is not a risk of flight and that there are no other general discretionary considerations to refuse him bail.
In support of the proposition that his incarceration is unusually onerous the applicant relies upon his own evidence of his past and current incarceration. This is set out in his affidavit dated 17 August 2021. Following his arrest the applicant was taken to Parklea Correctional Centre on 7 June 2021. He spent 14 days in quarantine. The applicant states that he was then taken to what he described as Wing 2F where all inmates had a cell each. He said the inmates were held in their cells for 24 hours a day and only permitted to make a phone call. The applicant states that he asked for a nurse or a doctor every day to no avail. The applicants states that he remained in Wing 2F "for about 2 to 3 weeks" and then - and I quote - "… moved to another segregation unit, Unit 3A where I currently remain. I was told by one of the Correctives officers that I was here "for your protection" (see paragraph 13 to 14).
The affidavit dated 30 August 2021 of the applicant's solicitor, Sarah Khan, also addresses the issue of protective custody. She states that she made numerous enquiries with Corrective Services New South Wales to ascertain why the applicant was held in protective custody. She stated she was directed to the Intelligence team at Parklea Correctional Centre who advised - and I quote paragraph 8 of her affidavit dated 30 August 2021 -"…they were unable to provide any information regarding inmates, a subpoena will be needed."
In written submissions filed on behalf of the applicant it is accepted that "the likely explanation for the applicants isolation from other inmates is that his safety is at risk in custody". This is said to be because of the nature of the charge of him distributing devices - (the ANOM phones) developed by law enforcement agencies for the purposes of gathering intelligence about criminals. The written submissions filed on behalf of the applicant state: "…persons associated with promoting the devices to criminals may now be at risk of harm because their actions have led to numerous arrests and charges." (see [25] of submissions). Therefore the applicant is at a special risk of harm because he is known as someone who (even inadvertently) has assisted law enforcement. This reason places him in a significantly different and worse position compared with other inmates who may be the subject of extradition requests and an important factor relevant to whether special circumstances have been established. The applicant describes his cell and the custodial conditions at paragraphs 16 - 18 of his affidavit.
The applicant states that despite several requests he has not seen or been examined by nurse or medical professional. He states that he has significant health issues including mental health issues and physical issues in relation to his ears. In support of his submissions concerning his pre-existing mental health issues the applicant included in the affidavit a copy of his patient health summary in 2019 as Annexure A and also documents relating to his admission to St George Hospital 4 years ago on 29 August 2017 in Annexure B. Those documents disclose that after an episode he was taken to hospital and later released into the care of his parents on the basis that he was neither a mentally ill or mentally disordered person for the purposes of the Mental Health Act.
The affidavit dated 30 August 2021 of the applicant's solicitor, Sarah Khan, states that the applicant is yet to be assessed by nurse, medical practitioner or mental health practitioner despite requests in the form of two letters addressed to relevant persons at Parklea Correctional Centre. In addition Parklea Correctional Centre was placed in a strict lock down on 29 August 2021 as a result of a COVID outbreak.
The applicant relies upon a Psychiatric Report of Dr Olav Nielssen dated 14 August 2021. Dr Nielssen interviewed the applicant on 11 August 2021. He diagnosed the applicant to be suffering from a depressive illness, an anxiety disorder and a substance use disorder. Dr Nielssen was asked to provide opinions in relation to several questions. So far as the effects that the applicants conditions of custody might have on his mental state Dr Nielssen stated: "the sensory deprivation of solitary confinement would be expected to exacerbate any underlying mental condition, including anxiety, depression and perceptual disturbances such as auditory hallucinations.
On the question whether the mental health concerns would likely deteriorate as a result of the applicant remaining in custody Dr Nielssen opined:
"Apart from enforced sobriety, Mr Kumar's mental health is likely to be adversely affected by being held in custody because of the effect of the threatening environment in prison on a person with an anxiety disorder.
Dr Nielssen opined that at the time of the assessment the applicant appeared quite distressed and depressed. If the applicant was released into the community he would have access to a range of treatments which would address issues of substance addiction and individual counselling.
In a letter dated 18 August 2021 clinical psychologist Adam Worrall states that if the applicant was released he would be eligible to receive 20 sessions with a psychologist for his mental health issues. This treatment could occur until the applicant is able to attend a residential rehabilitation program for longer term treatment of his alcohol use disorder.
In addition to the conditions of the applicant's incarceration and his mental health the applicant also relies upon the hardship that will be suffered by his parents and family if the bail application is refused. The applicant relies upon the affidavit of his father Bob Kumar dated 16 August 2021 which sets out the extensive health issues suffered by his parents and how the applicant assists his parents in the home by performing various tasks such as cooking, cleaning and gardening. An arrangement was agreed by the family prior to the arrest of the applicant that he would live permanently with his parents and take on the responsibility of their care. It is submitted that the applicant's parents are struggling without the applicant's assistance and their position has been aggravated by the circumstances of the current lockdown.
[2]
The respondent's submissions
The respondent submitted with reference to several extradition cases that the matter relied upon do not either singularly or in combination establish special circumstances. I refer in more detail to the respondent's submissions later in the judgment. The respondent submitted that the applicant has not shown that his position is different from the circumstances that persons facing extradition would ordinarily endure when regard is had to the nature and extent of the extradition charges.
So far as the applicant's conditions of custody and access to medical assistance and psychological services the respondent relied upon two documents. Firstly, a letter from Director, Corrections Strategy and Executive Services of Corrective Services New South Wales dated 19 August 2021 to a Senior Legal Officer of the International Corporation Unit of the Australian Government Attorney-General's Department. Secondly, an email from St Vincent's Corrective Health dated 20 August 2021. So far as the first piece of correspondence is concerned the letter of 19 August 2021 states that all new inmates undergo mandatory quarantine for a period of 14 days. The procedure is overseen by what is described as Corrective Services NSW Coronavirus Command Post. The email referred to above contained a request to supply information concerning: the current access to medical services available to individuals held in custody at Parklea Correctional Centre including any mental health or other support services available by telephone; any mechanisms specifically implemented for inmates with pre-existing health and mental health conditions; and the frequency of medical check-ups or process for how requests could be made. The operations manager of St Vincent's replied to the email request with a long description of the services for patients at Parklea Correctional Centre. For example in the email it is stated that all patients received at Parklea as new receptions undergo a comprehensive reception health screening assessment to determine the level of health intervention required in the timeframe for further assessment. Inmates can request to see a nurse and seek medical advice. Psychological services are available to all inmates and inmates can self refer to see a psychologist or a mental health nurse and further "mental health nursing is available onsite 24 hours per day, seven days a week." The respondent submitted that the current complaint of the applicant concerning medical assistance can be remedied in the future based on these representations.
[3]
The case is "unusual"
The applicant submits that his case is unusual and this should be taken into account in determining the bail application. He submits it is unusual because the United States is not requesting the applicant be extradited in relation to an offence in which he is alleged to have committed any acts, nor arranged for any acts to be committed in that country. Rather the United States is seeking that he be removed from New South Wales and taken to the United States in relation to an offence which he is said to have committed the acts in New South Wales. However he has not been charged with any offence against Australian law. It was submitted that the applicant is not a person who left the jurisdiction to avoid justice. He resides in Sydney, has not set foot in the United States since a childhood holiday. The respondent submitted that the case is not an unusual and made reference to other extradition cases.
In determining the issue of bail under s 15(6) of the Act it is erroneous to take into account whether the applicant could be regarded as an extraditable person: United Kingdom v Forsyth (No 2) [2003] FCA 1072 at [28]. The submission that the case is unusual must be assessed and considered with reference to the principles declared by the High Court in United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165. The court did not indicate that a class of extradition case such as the present should be treated differently. The High Court in a discussion of the Act referred at [58] to "an era where much crime is transnational". The charge faced by the applicant alleges a transnational crime committed by an organisation of which he was allegedly a Distributor (known as ANOM) and the use of encrypted telecommunication devices. It alleges a serious crime which carries a maximum of 20 years imprisonment. The fact that the applicant has not visited the United States or that the conduct purportedly occurred outside the United States does not change the transnational nature and seriousness of the charge. While I accept that the applicant is not as the High Court described it in United Mexican States v Cabal at [60] "…the typical extradite…who has fled from another country after committing a serious crime" I do not consider this case to be an unusual one given the objects of the Act referred to by the High Court in Cabal. There have been other extradition cases such as Tsvetnenko United States of America [2019] FCAFC 74 where similar charges have been alleged under the United States Criminal Code. In that case the defendant was charged as a participant in conspiracy to commit wire fraud and money laundering. He immigrated to Australia in 1992 as a 12-year-old and had lived in Australia from that time until the extradition proceedings.
[4]
Unusually onerous conditions on remand
Section 53 of the Extradition Act makes provision with respect to conditions of imprisonment and treatment of persons imprisoned. Section 53 provides:
The laws of a State or Territory with respect to:
(a) the conditions of imprisonment of persons imprisoned in that State or Territory to await trial for offences against the law of that State or Territory;
(b) the treatment of such persons during imprisonment; and
(c) the transfer of such persons from prison to prison;
apply, so far as they are capable of application, in relation to persons who have been committed to prison in that State or Territory under this Act. [emphasis added]
The applicant relies upon his conditions of incarceration in support of a finding of special circumstances within the terms of s 15(6). By its terms s 53 of the Act has the effect that the Crimes (Administration of Sentences) Act 1999 (NSW) applies on the basis that it governs both the conditions and treatment of the applicant.
The fact that the applicant was required to quarantine for 14 days when he was taken into custody is not unusual. It is an arrangement that applies to all persons remanded during the current pandemic. His situation is not different from the circumstances that persons facing extradition would ordinarily endure.
There are statutory provisions which govern protective custody and separation of inmates or unconvicted people. For example s 11 of the Crimes (Administration of Sentences) Act is headed "Protective custody of inmates" and provides:
(1) The Commissioner may direct that an inmate be held in protective custody if of the opinion that the association of the inmate with other inmates constitutes or is likely to constitute a threat to the personal safety of the inmate.
(2) The Commissioner may also direct that an inmate be held in protective custody if the inmate requests the Commissioner in writing to do so.
(3) The governor of a correctional centre may exercise the Commissioner's functions under this section in relation to the correctional centre and, on each occasion he or she does so, must notify the Commissioner of that fact and of the grounds on which the protective custody direction was given.
Another provision is s 78A(2) which provides:
"An inmate or group of inmates in a correctional centre may be held separately from other inmates in the correctional centre for the purposes of the care, control or management of the inmate or group of inmates."
Section 53 of the Act and the above provisions were not referred to in the submissions. I only refer to these legislative provisions as a reference point. It is not known officially whether any of these provisions have been applied to the applicant. The bail application has proceeded solely on the basis of the affidavit evidence from the applicant and his solicitor. There is no evidence - documentary or otherwise - from Parklea Correctional facility where he is currently held which addresses the issue. There is no reference to policy or operational documents concerning protective custody or segregation. In this case the applicant has submitted that he has been placed in protective custody but he has not been informed why that has occurred by the Correctional facility even after a request from his solicitor. The applicant does however suggest that it is because of the nature of the charge and alleged factual circumstances he is wanted for in the United States. See paragraph [21] above.
The decision of Barney v United Kingdom [2012] FCA 51 is instructive because it addresses s 15(6) and protective custody. This case is similar to Barney v United Kingdom where the defendant was held in maximum security and the magistrate said all persons subject to an extradition warrant may be held in maximum security: Barney v United Kingdom at [40]. Robertson J said [41]:
It is relevant in my view that the custody is protective custody. It is also relevant that there was no material enabling a comparison to be made to show that the circumstances relied on were different in kind from the disadvantages that all extradition defendants have to endure. Her Honour had to assess whether the applicant's conditions in protective custody were so extraordinarily harsh or so harsh as to constitute special circumstances. On the evidence before the Magistrate, and the absence of comparative evidence, it was open to her Honour to conclude as she did that the conditions did not constitute special circumstances.
What appears to be accepted by the parties is that the applicant is being held in protective custody in a cell segregation unit, Unit 3A. It was his evidence that his cell is divided into two parts, each of the same 2 x 2.5m dimensions, he has a television but no heating inside his cell and his locked in there for 23 hours and 30 minutes of the day. It is not clear whether these conditions may change in the future because there is no official information on the issue. I am unable to conclude on the evidence - which comes only from the applicant - that the conditions of protective custody are so extraordinarily harsh or so harsh as to constitute special circumstances. It may be considered to be a highly unfortunate state of affairs by the applicant that he has been placed in protective custody but it does not constitute special circumstances. In coming to that conclusion it is useful to refer to the Full Federal Court statement in Tsvetnenko United States of America [2019] FCAFC 74 that the circumstances of the case:
"…must take the case out of the ordinary when it comes to the disadvantages of being remanded in custody during the course of extradition proceedings (for charges of the kind involved in the particular case). The disadvantages must be of a kind that makes the particular instance extraordinary or exceptional.
The expression "charges of the kind involved in the particular case" has to be given meaning and effect. The reason put forward that the kind of incarceration that the applicant is enduring relates to the nature of the charges. It cannot be the case that persons wanted for allegedly facilitating transnational crime can establish special circumstances and should be granted bail because they may be, or are, required to be placed in protective custody. On the contrary the use of protective custody is not unexpected given the facts alleged and the nature of the charge. By way of example if the applicant was wanted for a child sexual abuse offence it would be expected that his conditions in custody would be assessed and adjusted in light of the nature of the charge and any risks to his safety. This approach is what was envisaged by the High Court in Cabal. The applicant has not shown that his conditions are in the words of the High Court in United Mexico States v Cabal at [61] 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."
[5]
Exacerbation of the applicant's pre-existing mental health problems
I turn now to the second matter relied upon which is framed as exacerbation of the applicant's pre-existing mental health problems. Imprisonment causing a serious deterioration of health has been held to constitute special circumstances: Cabal at [53] quoting the US decisions of Salerno v United States 878 F 2d 317 (9th Cir 1989); United States v Taitz 130 FRD 442 at 446 (SD Cal 1990). I find that the evidence concerning the applicant's mental health falls short of "serious deterioration". Dr Nielssen's opinion quoted earlier does not say there will be a serious deterioration of health. He opined that the applicant's mental health was likely to be adversely affected by being held in custody. It is to be noted that prior to his arrest the applicant was not suffering any significant mental health conditions and he was not on any medication or other treatment. The issues raised do not fall with the expression "special circumstances".
The evidence of the applicant and his solicitor quoted earlier suggests that he has not received any treatment for his mental health. During his consultation with Dr Nielssen the applicant said it was still the case. Dr Nielssen noted other prisoners reported long delays in obtaining access to doctors. However the material relied on by the respondent from Corrections NSW and St Vincent's set out earlier suggest that the applicant's mental health and other issues can be managed and treated in custody. The applicant's submission that his position is not likely to improve cannot be assumed. In that respect the case is factually similar to Heslehurst v Government of New Zealand [2000] FCA 937. Mr Heslehurst had severe mental conditions. He suffered from an adjustment disorder and depression and the court accepted on the evidence before it that the condition could be managed in custody. The courts have also accepted that extradition and being remanded in custody can cause anxiety and depression, and "would cause depression in any normal person": Haddad v Lyon [2003] FCA 1623 at [20]. To the extent that the evidence suggests that the applicant's mental health has been adversely affected by his incarceration this places him in no different position from a person held in custody facing extradition proceedings. See also O Donoghue v Ireland [2009] FCA 394 at [7].
[6]
The applicant's close, co-dependent relationship with his parents
During the course of argument counsel for the applicant accepted that this circumstance alone was not sufficient to establish special circumstances. The submission as framed was that this was another circumstance which could go to establishing special circumstances in combination with other matters. The law has always accepted in the context of bail decisions and sentencing law that refusing bail or sentencing a person to imprisonment will often result in hardship to third parties. For example in R v Edwards (1996) 90 A Crim R 510, Gleeson CJ said at 515:
There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, as senior counsel for the respondent acknowledged in argument, it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so.
In this case there is no question that if the applicant is refused bail a degree of hardship will be caused to his parents. And I refer to the matters described by Bob Kumar in his affidavit referred to earlier. The respondent's submissions on this issue must be accepted. In Haddad v Lyon [2003] FCA 1623 at [19] Emmett J remarked that "the hardship of incarceration … is an unfortunate consequence of the provisions of the Act." Each case must be considered individually. In United States v Green (2009) 257 ALR 252 the court considered a combination of circumstances amounted to special circumstances. These included having a close family unit who would seek to ensure the defendant's presence at a hearing and the applicant being needed on the family farm. There have been other cases where hardship to third parties has not constituted special circumstances: Haddad v Lyon (hardship to the defendant's spouse), O' Donoghue v Ireland [2009] FCA 394 (hardship to the defendant's wife and children on the basis he was the sole earner), Barney v United Kingdom (the applicant was engagement to be married), Taylor v United States of America [2012] FCA 366 (strong family and business ties) and Adamas v The Hon Brendan O Connor (No 3) [2012] FCA 365 (close connections to Perth where his family all reside in Western Australia). I have considered the evidence in the case on this issue and I find that the circumstances of the applicant cannot be considered to be different from the disadvantages that all extradition defendants would have to endure. The circumstances relating to his relationship with his parents and the impact of his incarceration on them do not constitute special circumstances. They are not uncommon in extradition cases.
[7]
The combination of circumstances
The applicant relies on the combined effect of the circumstances to establish the statutory criteria in s 15(6). The Full Federal Court decision of Tsvetnenko v United States of America [2019] FCAFC 74 contains a lengthy discussion of the High Court decision in Cabal particularly how a Magistrate is to approach a bail application where multiple circumstances are relied upon. The court held that where an applicant relies upon what it described as "non-special circumstances" it is the task of the magistrate to consider the circumstances in aggregate and reach a view as to whether as a whole they constitute special circumstances. After quoting various statements of the High Court in Cabal the Full Federal Court said:
Taken together, these statements require that a combination of non-special circumstances must go further than simply demonstrating distinctive aspects of the person seeking remand on bail that make them different from others facing similar extradition charges. Rather, the circumstances must be different in a respect and to a degree that means being remanded in custody will have adverse consequences that would not generally apply to those detained during the course of the extradition process. Further, they must take the case out of the ordinary when it comes to the disadvantages of being remanded in custody during the course of extradition proceedings (for charges of the kind involved in the particular case). The disadvantages must be of a kind that makes the particular instance extraordinary or exceptional. A particular combination of circumstances is not 'special' for the purposes of the Extradition Act provisions concerning bail unless they rise to that character. Otherwise, the circumstances fall within those which generally apply and bail must be refused. [Emphasis added]
Having considered the matters relied upon collectively I find they do not constitute special circumstances justifying remand on bail under s 15(6). This because each of the circumstances do not approach the exceptional category. When the circumstances are viewed in combination they do not take the case in what the full Federal Court described as:
"…out of the ordinary when it comes to the disadvantages of being remanded in custody during the course of extradition proceedings (for charges of the kind involved in the particular case).
[8]
Risk of flight
I turn now to the issue of flight. The High Court made clear in the passage cited earlier that if there is a real risk of flight bail should ordinarily be refused. The issue of flight is considered after the question of whether special circumstances have been established. In this case I have found that neither the individual circumstances of the case nor the combination of circumstances constitute special circumstances for the purposes of section 15(6).
It was submitted the applicant cannot be regarded as a real risk of flight. This is because it is highly improbable that the applicant would abandon his parents in light of his close relationship with them; he has no previous charges or convictions suggesting involvement or links to organised crime; his circumstances are modest and there is nothing to suggest that he has access to substantial sums of money which could be used to avoid justice; and there are currently very stringent restrictions on travel during the pandemic which affect every citizen in Australia and in New South Wales. Counsel for the applicant submitted that applying the Cabal decision at [61] the history and character of the applicant are important matters in assessing whether he is a flight risk. He is a 34-year-old man who suffers from alcoholism, who lives with his parents and who suffers from anxiety and depression. So far as the applicant's criminal history is concerned most of the offences on his criminal record are for driving offences. However there is no evidence of any links to organised crime. The applicant urged that I should make a finding that in accordance with the test in Cabal at [61] that there is no real risk of flight in this case.
The respondent submitted that in considering the issue of whether the applicant is a real risk of fleeing it must be borne in mind that it includes flight within Australia and not just flight overseas. Further, I am not required to consider just how he might flee and the fact that he has not fled in the past does not mean it will not happen in the future.
In assessing the flight risk the High Court has made clear that the history and character of the defendant and the potential punishment are surer guides to the risk of flight than proposed bail conditions. The applicant is facing a serious charge which carries a maximum of 20 years imprisonment. I refer to the earlier description of the allegations against the applicant as an alleged participant in the ANOM organisation. In addition there is the applicant's own criminal history. The applicant's criminal history does not assist him in relation to the flight issue. He was convicted and sentenced for a driving offence of police pursuit under s 51B of the Crimes Act 1900 in October 2017. He was sentenced to full time imprisonment for that offence for a period of 15 months expiring in 2019. The applicant also breached a court licence disqualification order by driving in 2012 and 2017. Even if my finding that the applicant has not established special circumstances is considered to be erroneous I find that the applicant is a real risk of flight because of the nature of the charges and the potential punishment he is facing. Bail should also be refused on the basis he is a real risk of flight.
For these reasons the application for bail is refused.
[9]
Amendments
29 November 2021 - coversheet - corrected jurisdiction
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Decision last updated: 29 November 2021
Edwin Harmendra KUMAR aka VALENTINE (the applicant) has made an application for bail pursuant to s 15(2) and s 15(6) of the Extradition Act 1988 (the Act). The applicant is the subject of an Extradition Request by the United States of America presented on 21 July 2021. The applicant is wanted in the United States for a prosecution for an offence of Conspiracy to engage in a racketeer influenced and corrupt organisation (RICO Conspiracy) in violation of Title 18, United States Code, section 1962(d). A Grand Jury returned an indictment for the offence on 28 May 2021 and an arrest warrant was issued by a clerk of the United States District Court for the Southern District of California on the same day.
Extradition is the process of surrendering an alleged fugitive by one country to another country in whose jurisdiction the person is alleged to have committed an extraditable offence. The Commonwealth Attorney-General has given a notice of receipt of the Extradition Request to "a Magistrate" dated 27 July 2021 as required by s 16 of the Act: Pasini v United Mexican States [2002] HCA 3; 209 CLR 246 at [25]; Vasiljkovic v Commonwealth of Australia (2006) 227 CLR 614 at [21].
A provisional extradition arrest warrant for the applicant was issued on 4 June 2021 by a Magistrate of the Australian Capital Territory pursuant to s 12 of the Act. The warrant was executed in New South Wales on 7 June 2021 and the applicant was brought before Central Local Court in Sydney on that day. The applicant was remanded in custody pursuant to s 15. On 31 August 2021 the applicant made an application for bail before me at Central Local Court pursuant to s 15(2) and s 15(6) of the Act. He was again remanded in custody until today.
Section 51(xxix) of the Constitution confers a power on the Commonwealth Parliament to enact legislation on the subject of extradition. In Vasiljkovic v Commonwealth of Australia the High Court, in answering questions stated by the parties in a Special Case for the opinion of the Court, held that Part II of the Act - which includes provisions concerning bail - conforms with international practice and the Constitution and is not invalid on the basis that it purports to confer a power to deprive an Australian citizen of liberty otherwise than in the exercise of the judicial power of the Commonwealth. A decision concerning bail is an administrative decision: Vasiljkovic v Commonwealth of Australia at [58]. It is made in my personal capacity and not as a member of the Local Court of NSW: s 45B of the Act. The extradition process is marked by four stages under the Act: commencement; remand; determination by a magistrate of the eligibility for surrender of the wanted person; and finally an Executive determination that the person is to be surrendered: Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528. These proceedings are at the remand stage and counsel for the applicant indicated that the surrender stage will be contested.
I set out the allegation against the applicant below on the basis that it is relevant to the question of whether the applicant could be regarded as a real flight risk. It is also relevant to a submission by his counsel that his case should be characterised as an unusual extradition case.
The principles for granting bail under s 15(6)
Section 15(1) of the Act sets out a statutory scheme for remand in custody or remand on bail. It provides that a person who is arrested under an extradition arrest warrant is to be brought as soon as practicable before a magistrate in the State in which the person is arrested. Section 15(2) further provides that the person shall be remanded by a magistrate in custody, or, subject to s 15(6), on bail for a period necessary for proceedings under ss 15A,18 or 19 of the Act to be conducted. Section 15(6) relevantly provides:
"A magistrate… shall not remand a person on bail under this section unless there are special circumstances justifying such a remand.
Although other parts of s 15 have been amended since the enactment of the Act in 1988 the text of s 15(6) has not altered. The expression "…there are special circumstances justifying such a course" was later added in 1990 to s 21 by s 6 the Extradition Amendment Act 1990 (Cth). The Explanatory Note states that the amendment was to ensure that the special circumstances test for bail also applied to higher courts in the exercise of the power conferred by s 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 at any subsequent level of appeal. Section 49B provides inter alia that a decision under the Act of a magistrate to remand or release a person on bail may be made on such terms and conditions as the magistrate thinks fit.
The parties accepted in their written submissions that the High Court decision of United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165 (Gleeson CJ, McHugh and Gummow JJ) remains the leading case and sets out what the High Court itself described as "the principles for granting bail in cases falling within s 15(6)": at [46]. In that case under the underlined heading "The rationale for refusing bail in extradition cases" (at [58]) the High Court explained that if a person is found in Australia and an extraditable offence is alleged, Australia is obliged to return that person to the country seeking extradition. A failure by Australia to do so where there is probable cause for concluding that a person has committed an extraditable offence breaches the country's obligations under international law: United Mexican States v Cabal at [59]. The High Court then made express reference to the test in s 15(6) and referred in the following terms to the Explanatory Note when the provision was enacted:
"Sub-clause (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, i.e. the person left the jurisdiction to avoid justice." [Emphasis added by the High Court].
The High Court then set out the principles for granting bail in cases falling within s 15(6) at [61]-[62] in the following 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."[fn 99 Matter of Extradition of Morales 906 F Supp 1368 at 1373 (SD Cal 1995).] Second, 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. 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 12-14 hours in which to leave Australia.
Even when special circumstances are proved and there is no real risk of flight, it does not follow that bail must be granted. For example, the defendant may pose a risk to the community or a particular individual. In addition, bail must become harder to obtain as the case proceeds through the judicial system. Once the Magistrate has found that the defendant is eligible for surrender, public interest factors similar to those that require a convicted defendant to be imprisoned also require that a defendant in extradition proceedings be kept in custody.
In concluding statements at [72] the High Court referred to a "general rule that in extradition cases defendants are to be held in custody whether or not detention is necessary". The High Court stated:
In our opinion, it is an error in a bail application in an extradition matter to take into account that there is "a predisposition against unnecessary or arbitrary detention in custody". The Parliament has made it plain that bail is not to be granted unless special circumstances are proved. However unpalatable such a conclusion may be to the mind of the common lawyer, the Parliament believed that the fulfilment of Australia's treaty obligations makes the principles governing bail in domestic cases inapplicable in extradition cases. 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.
The applicant relies upon individual circumstances to establish special circumstances and a combination of circumstances. Earlier in the judgment the High Court, in the course of explaining the law in the United States which it regarded as instructive, said at [52]:
"It is not necessary that any particular circumstance should be regarded as special. Several factors in combination can constitute special circumstances.
Something must be said concerning the use of the past cases in this area of the law. Counsel for the applicant made reference to an appeal bail decision under the Bail Act (NSW) 2013 of DPP v Zaiter [2016] NSWCCA 247 at [30], [33]. He submitted that past extradition bail cases are not of precedential value and should be confined to the peculiar circumstances of the case. The respondent accepted the limitations of the use of past cases but submitted that these cases cannot be ignored. The submission of the applicant must be accepted. It is my task to apply the law to the particular circumstances of this case. Past extradition cases may however throw light on the factual issues raised but they must not be treated as binding precedents.