United States of America v Kumar aka Valentine

The respondent's submissions

1. 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.
2. 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.

The case is "unusual"

1. 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.
2. 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.

Unusually onerous conditions on remand

1. 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]
2. 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.
3. 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.
4. 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.
5. 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."
6. 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.
7. 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.
8. 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.
9. 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."

Exacerbation of the applicant's pre-existing mental health problems

1. 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".
2. 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].

The applicant's close, co-dependent relationship with his parents

1. 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.
2. 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.

The combination of circumstances

1. 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]
2. 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).

Risk of flight

1. 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).
2. 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.
3. 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.
4. 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.
5. For these reasons the application for bail is refused.

Amendments 29 November 2021 - coversheet - corrected jurisdiction DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 November 2021