FEDERAL COURT OF AUSTRALIA

Bertran v Honourable Amanda Vanstone [1999] FCA 1117

EXTRADITION – Arrest on provisional arrest warrant – Bail pending determination of extradition proceedings – Special circumstances justifying bail – Whether applicant entitled to bail upon establishing special circumstances justifying bail – Whether discretion to refuse bail notwithstanding special circumstances justifying bail – Applicant would be entitled to bail in country seeking extradition in respect of offence for which that country requests his return – Whether a matter magistrate bound to take into account in determining whether special circumstances justifying bail exist.

Extradition Act 1988 (Cth) s 15(2), (6), 21(6)

Felton v Mulligan (1971) 124 CLR 367 applied

Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 cited

Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 cited

Fencott v Muller (1983) 152 CLR 570 cited

Re Wakin; Ex parte McNally & Anor [1999] HCA 27 cited

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied

Jarrett v Seymour (1993) 119 ALR 46 applied

Wu v Attorney‑General (1997) 79 FCR 303 considered

Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 considered

Holt v Hogan [No 1] (1993) 44 FCR 572 considered

Kainhoffer v Director of Public Prosecutions (1993) 48 FCR 9 considered

Re Nacif‑Borge 829 F Supp 1210 (1993) considered

Re Rouvier 839 F Supp 537 (1993) considered

Re Siegmund 887 F Supp 1383 (1995) considered

Re Morales 906 F Supp 1368 (1995) considered

Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 considered

Wright v Henkel 190 US 40 (1903) cited

MARCO PASINI BERTRAN v THE HON AMANDA VANSTONE, in her capacity as Minister for Justice for the Commonwealth, DAVID McDONNELL, in his capacity as Governor of Port Phillip Prison and BRIAN BARROW

V 240 OF 1999

SUNDBERG, MERKEL and FINKELSTEIN JJ

17 AUGUST 1999

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The applicant pay the first respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

SUNDBERG and MERKEL JJ

BACKGROUND

1                     The appellant is a citizen of the United Mexican States (“Mexico”).  He left Mexico on 31 August 1994 and has not returned.  On 18 January and 29 August 1996 warrants for his arrest were issued by a Mexican court.  The first warrant alleges two breaches of Art 112 s V pars (c) and (e) of the Law of Credit Institutions.  The second alleges a breach of Art 400 s II of the Federal Criminal Code.  The warrants have not been executed.  The appellant arrived in Australia on 14 April 1997.  He was placed in immigration detention on 11 November 1998.  On 27 November 1998, whilst in detention, he was arrested pursuant to a provisional arrest warrant issued under s 12 of the Extradition Act 1988 (“the Act”) on the application of Mexico.  Since then he has been in custody pursuant to orders for remand made by a magistrate under s 15(2) of the Act.  On 20 January 1999 Mexico requested the appellant’s extradition in reliance on the arrest warrants.  On 21 January the first respondent (“the Minister”) issued a notice pursuant to s 16(1) of the Act directed to the magistrate before whom the appellant was to be brought, stating that the request had been received from Mexico.  Copies of the notice and the supporting documents were served on the appellant’s solicitors in Australia on 22 January.

2                     Meanwhile the appellant’s legal representatives in Mexico issued proceedings known as “incidental suspension proceedings” in conjunction with what are known in Mexico as “Amparo Proceedings” ‑ proceedings challenging the lawfulness of the arrest warrants.  On 20 January and, in order to correct an error, again on 23 February, a Mexican court made interim orders that the execution of the arrest warrants be stayed upon the following conditions:

“(1)     Within three days of returning to Mexico, the Applicant must provide a bond in the sum of 500,000 Pesos ($50,000 US);

(2)               Within 48 hours of returning to Mexico, the Applicant must appear before the criminal judge before whom his case is listed, in order to submit his preparatory deposition; and

(3)               Within 48 hours of his appearance before that judge the Applicant is required to appear before the District Court to corroborate his earlier appearance.”

3                     On 3 March 1999 another Mexican court made a declaration to the effect that the warrant issued on 18 January 1996 was still in force and pending for execution.  On 5 March an application by the appellant for bail pursuant to s 15 of the Act was refused by the Magistrates’ Court constituted by the third respondent (“the magistrate”).  On 19 March the appellant commenced the present proceeding for relief under s 39B of the Judiciary Act 1903 and ss 21 and 23 of the Federal Court of Australia Act 1975, including:

·               an order requiring the second respondent to release him from custody, alternatively an order in the nature of mandamus requiring the magistrate to hear and determine his application for release on bail under s 15(6) of the Act according to law

·               an order quashing the Minister’s decision to issue a notice under s 16 of the Act

·               an order quashing the magistrate’s decision not to release the appellant on bail pursuant to s 15(6) of the Act

·               a declaration that the fact that the offences for which the appellant’s extradition is sought are not treated as serious offences under the law of Mexico, and that the extradition proceedings are being conducted upon the basis of two warrants that have been stayed by a Mexican judge, constitute or alternatively may constitute special circumstances within s 15(6).

4                     On 29 March the appellant applied by motion for an order that he be released from custody, alternatively that he be released pending the hearing of his substantive application, and an order that the Court hear and determine, amongst other things, his claim to the declaration sought in that application.  The motion was supported by affidavits which disclosed that the offences alleged against the appellant are not treated as serious offences under the Mexican law relating to bail, and that in consequence he would ordinarily be entitled to bail in Mexico.  The affidavits also disclosed that the warrants for his arrest are provisionally stayed in Mexico.  Also on 29 March, the provisional stay and the conditions of the stay were made final until the determination of the Amparo Proceedings.  The stay orders have no extra‑territorial effect, and thus do not operate unless the applicant is in Mexico.  There is thus no inconsistency between the stay orders and the order of 3 March 1999 confirming that the arrest warrant issued on 18 January 1996 is still in force and pending for execution.

THE LEGISLATION

5                     Upon the arrest of a person on a provisional arrest warrant issued under s 12(1) of the Act, the person must, in accordance with s 15(1), be brought as soon as practicable before a magistrate.  Sub‑sections (2) and (6) of s 15 are as follows:

“(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 sections 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.”

Where the Minister receives an extradition notice from an extradition country in relation to a person, the Minister may by notice in writing directed to a magistrate state that the request has been received: s 16(1).  When a s 16(1) notice has been issued in relation to a person in remand under s 15, and application is made to a magistrate by the person or the extradition country for proceedings to be conducted in relation to the person under s 19, the magistrate is required to conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence for which surrender is sought.

MAGISTRATE’S DECISION

6                     The magistrate posed the question before him as follows:

“What I must determine firstly is whether special circumstances do exist in this case and if they do exist either singly or seen in their entirety they are such that they outweigh the implicit presumption in sub‑section (6) that ordinarily bail ought not be granted in these circumstances.”

He then listed the matters that were relied on by the appellant as “special circumstances”.  Two of them are

·               The offences for which extradition is sought are not regarded as serious offences in Mexico and are such that execution of the warrants in Mexico have for the time being been stayed.

·               If bail is refused the appellant may remain in custody for 12 months or more.

The magistrate then said:

“The fact that a Judge in Mexico has guaranteed the applicant his liberty, subject to certain conditions, upon his return to that country or that by definition these offences are not regarded as serious in Mexico does not in my view establish a special circumstance.

Certainly for the purposes of extradition proceedings the Parliament does regard the offences as serious and on any objective view offences that carry a maximum penalty of 10½ years imprisonment are serious offences.

I reject the notion that there is an issue of equality of justice here.  Whatever constitution guarantees might be given to the applicant whilst within the jurisdiction of the Republic of Mexico that has little relevance or application in these proceedings brought under an Act whose primary purpose is to enable Australia to fulfil its obligations under extradition treaties and facilitate the return of the applicant to Mexico in custody unless special circumstances exist that would justify displacing the presumption against the granting of bail.”

The magistrate thought that only one of the other matters relied on by the appellant qualified as a special circumstance.  This was his possible detention in custody for twelve months or more.  But the magistrate did not regard that circumstance as displacing the presumption that bail ought not be granted.  He said the evidence was overwhelming that the appellant was trying to avoid detection by Mexican authorities and would not answer his bail:

“Not only did the applicant enter Australia and take up residence with a false passport, there is evidence of the seizure of other false passports, birth certificates and identity cards from the applicant’s premises that would facilitate further ‘flight’.  There is evidence of the bribing of public officials to avoid apprehension.

Moreover there is evidence that the applicant has access to substantial sums of money evidenced by living expenses of approximately $300,000 per month for the applicant, Mr Cabal and their families, accessed from a company account to which the applicant was a signatory of which he was a director.”

Accordingly the magistrate refused bail.

BEFORE THE PRIMARY JUDGE

7                     The primary judge accepted the appellant’s submission that in dealing with a bail application under s 15(2) a magistrate is required to consider, amongst other things, the particular circumstances of an applicant by reference to what may be described as “broad community standards”.  Her Honour did not agree with the submission that the magistrate had misconstrued s 15(2) and (6) and had failed to ask himself the correct question, or that he had so misapplied a relevant criterion that his exercise of discretion wholly miscarried.  Her Honour rejected the proposition that the magistrate was bound to find that an entitlement to bail in Mexico and the existence of the stay orders constituted special circumstances.  She thought that while those matters, in combination with other facts raised by a particular case, might constitute special circumstances, generally they would not.  Her Honour said:

“In the context of extradition proceedings, a primary concern is to ensure that a person eligible to be extradited is delivered to the requesting country, providing the requirements of the Act and Regulations made under it are satisfied.  In this case, Mexico has requested Mr Pasini’s return to Mexico in order that he can stand trial.  The fact that he would be entitled to bail in Mexico where he would be subject to the law of Mexico and the jurisdiction of its courts is, it seems to me, of limited relevance to his application, under s 15(2), for bail in Australia.  Similarly, it seems to me to be of limited relevance to the matters raised by sub‑s 15(2) and sub‑s 15(6) that, if he were to return to Mexico, then he would enjoy the benefit of a stay of execution of the arrest warrants (assuming he complied with the conditions of the stay orders).  The fact is that Mr Pasini is not in Mexico and is resisting his return to that country where he is required to stand trial.”

Her Honour observed that it was for the magistrate to determine whether special circumstances were established, and that in doing so he had to evaluate all relevant factors by reference to the applicable criteria, including broad community standards.  She concluded that it was open to the magistrate to find that the only special circumstance was the one he had identified, and that the real risk of flight by the appellant outweighed that circumstance.  Her Honour dismissed the motion.  Because of the conclusion to which she had come, her Honour did not need to deal with a submission by the Minister that the Court lacked jurisdiction to entertain the motion.  The present appeal is from the dismissal of the motion.

JURISDICTION

8                     The first respondent’s submission as to lack of jurisdiction was renewed on the appeal.  In our view the Court had jurisdiction to deal with the motion.  The Court has jurisdiction under s 39B(1A)(c) of the Judiciary Act “in any matter … arising under any laws made by the Parliament”.  The same words are employed in s 76(ii) of the Constitution, which empowers Parliament to confer original jurisdiction on the High Court.  In Felton v Mulligan (1971) 124 CLR 367 at 382‑383 Menzies J said:

“It is to be observed from s 76(i) and (ii) of the Constitution that there is a difference between a matter arising under a law and a matter involving the interpretation of a law.  A matter may involve the interpretation of a law without arising under that law.  Thus, for instance, if, upon a claim for damages for negligence at common law, it became necessary to interpret some statutory provision imposing some duty upon the defendant, the litigation would involve the interpretation of the statutory provision but would not arise under it.  A matter arises under a law when it is necessary in litigation to determine whether that law confers a right or affords a defence which is an issue in the litigation.  A matter arises under a law of the Parliament when in a proceeding it is necessary that there should be a decision upon a claim made by one of the parties to the litigation which is based upon that law.  It is to be observed that there is a difference between a “proceeding” arising under a law and a “matter” arising under a law.  A “proceeding” arises under a law only when it is authorised by that law ….  A “matter” need not be a “proceeding”; it may be part of a proceeding, eg a defence that the law authorizing the proceeding is unconstitutional.  So it is that a matter may arise under a law made by the Parliament in a proceeding which does not arise under that law.”

Other members of the Court expressed views to the same effect.  See per Windeyer J at 387‑388, per Walsh J at 408‑409 and per Gibbs J at 415‑416.

9                     Although the notice of motion raised three issues, only one was pursued.  This was the claim for a declaration that the fact that the offences for which extradition is sought are not treated as serious offences under the law of Mexico, and the fact that the warrants of arrest on which the extradition proceeding are based have been stayed in Mexico, constitute or may constitute special circumstances within the meaning of s 15(6) of the Act.  In par 5 of the application it is asserted that the magistrate’s decision that those facts do not constitute special circumstances within s 15(6) was an error of law and in excess of his jurisdiction.  The appellant based his claim to relief on s 15(6).  The “matter” raised by the motion was whether s 15(6) conferred the right claimed.  It thus arose under s 15(6) for the purposes of s 39B(1A)(c).  Put another way, the “matter”, being the litigious or justiciable controversy between the parties (Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 290 per Mason, Brennan and Deane JJ; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; Fencott v Muller (1983) 152 CLR 570; Re Wakin; Ex parte McNally & Anor [1999] HCA 27 at par 135 per Gummow and Hayne JJ), was whether the magistrate had heard and determined the appellant’s application for bail under s 15(2) in accordance with law.  On either view, the primary judge had jurisdiction to entertain the matter.

OBJECTION TO COMPETENCY

10                  The first respondent objected to the competency of the appeal on the ground that the judgment below was an interlocutory judgment for the purposes of s 24(1A) of the Federal Court of Australia Act, an appeal from which requires leave.  In addition it was said that the time within which leave to appeal could be granted had expired.  See O 52 r 10(2)(b) of the Federal Court Rules.  On the hearing of the appeal counsel for the Minister indicated that if leave to appeal were given, there would be no objection to an extension of time.

11                  The appellant did not submit that the orders appealed from are not interlocutory in nature, and we will assume they are.  However a number of factors point to the appropriateness of granting leave to appeal.  First, the judgment appealed from determines a substantive issue, and not merely a point of procedure.  See Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 400 and Jarrett v Seymour (1993) 119 ALR 46 at 49.  Secondly, the case involves an important point of construction of s 15(2) and (6) of the Act and a related issue as to the applicability to s 15(6) of decisions under s 21(6).  It appears that the proper construction of s 15(2) and (6) has not been judicially considered, though the meaning of the words “special circumstances justifying … release on bail” in s 21(6) has been examined in other cases.  It is appropriate that the question of construction be considered by a Full Court.  Thirdly, supposing the decision appealed from to be wrong, substantial injustice would result if leave were refused.  If the appellant were to succeed on the appeal, the magistrate’s decision would be quashed and he would be ordered to reconsider the application for bail in accordance with law.  If as a result of that reconsideration he were to grant bail, each day the appellant spends in custody awaiting the opportunity to put his case is a partial denial of the fruits of his assumed success.  Indeed, it is possible that his success on the appeal could be rendered nugatory if it were to be resolved after the determination of the other issues raised by the application, any of which, if determined in the appellant’s favour, could see him released.  It is also possible that his success could be rendered nugatory if the appeal were to be heard after a decision had been taken under s 19.  We regard this as a clear case for the grant of leave to appeal.

CONSTRUCTION OF S 15(6)

12                  The explanatory memorandum which accompanied the Bill which became the Act explains the “special circumstances” requirement in clause 15(6) as follows:

“Subclause (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, ie the person left the jurisdiction to avoid justice.”

13                  Wu v Attorney‑General (1997) 79 FCR 303 involved an application for bail in reliance on the Court’s inherent power to grant bail in an extradition case independently of statute.  Burchett J referred to the “extreme care and caution” attending the exercise of the power at common law, and continued (at 306‑307):

“It seems to me that the common law’s ‘extreme care and caution’ and the statute’s ‘special circumstances’ are each intended to reflect the same matter – a high risk that a fugitive from his own country may fail to answer bail.  This was expressly held to be the basis of the statutory provisions in Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 at 73‑74, a decision of French J.  It is a consideration which should be applied bearing in mind the importance of the international obligation undertaken by Australia when it enters into extradition treaties.”

His Honour went on to consider the meaning of “special circumstances” in the common law context, which he thought was reflected in ss 15 and 21 of the Act.  After reviewing decisions on that expression in other contexts, he said:

“These expositions of comparable uses of ‘special circumstances’ support the view, which I hold, that the expression refers to circumstances different, in some way that provides a ground for considering a grant of bail more favourably, from those of the ordinary case of a fugitive remanded in custody.”

14                  In our view that is what the phrase “special circumstances justifying such remand” in s 15(6) means – circumstances different in some way that provides a reason for a more favourable view of the grant of bail than that attending the ordinary run of extradition cases where a person might be expected to be remanded in custody.

15                  If s 15(6) stood alone, we would not have thought that a person who establishes special circumstances justifying remand on bail was necessarily entitled to bail.  The sub‑section would appear to posit a necessary but not sufficient condition for the grant of bail.  However, when sub‑ss (2) and (6) are read together, this impression dissipates.  Under sub‑s (2) a person is to be remanded in custody “or, subject to sub‑section (6), on bail”.  Thus, if special circumstances justifying bail are made out, bail is to be granted.

16                  For the applicant it was argued that once special circumstances are established, the magistrate’s discretion is to be exercised in the light of all relevant factors.  Reference was made to Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 at 74 and Holt v Hogan [No 1] (1993) 44 FCR 572 at 579.  Those cases were decided under s 21(6) of the Act, and some caution must be exercised in using them in relation to s 15(6).  Section 21 deals with the review by this Court or a Supreme Court of a magistrate’s order under s 19(9) that a person is, or under s 19(10) that a person is not, eligible for surrender to the country seeking extradition.  Section 21(3) confers a right of appeal to the Full Court of this Court from an order of the Court on the review.  Sub‑section (6) provides in part as follows:

“Where the person or the extradition country:

(a)               applies under subsection (1) for a review of an order;

(b)               appeals under subsection (3) against an order made on that review; or

(c)               appeals to the High Court against an order made on that appeal;

the following provisions have effect:

…

(f)                if:

(i)                 because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has not been released ….

…

the court to which the application or appeal is made may:

(iii)             order that the person be kept in such custody as the court directs; or

(iv)             if there are special circumstances justifying such a course, order the release on bail of the person on such terms and conditions as the court thinks fit;

until the review has been conducted or the appeal has been heard.”

Schoenmakers held both Australian and Dutch citizenship.  He had been born in Western Australia and had lived half his life there, where he had substantial family connections.  At the time of his application for bail under s 21(6)(f)(iv) he had been in custody for twelve months awaiting the determination of his appeal against extradition.  French J granted the application.  After referring to the passage in the Explanatory Memorandum which we have set out, and observing that while there was no comparable explanation in relation to “special circumstances” in s 21(6) the underlying policy was presumably the same, his Honour said (at 74):

“The reference to ‘special circumstances’ in the context of this legislation imports a presumption against the grant of bail and puts the onus on the applicant to demonstrate that an order for bail would be justified.  There are two stages in the decision‑making process under s 21(6)(f).  The first involves the threshold question whether there are special circumstances of the kind contemplated by the section.  If that question is answered in the affirmative, the court must then consider whether, in the exercise of its discretion, it should make an order for release of the applicant on bail and, if so, upon what terms or conditions.”

Cooper J adopted the same approach in Holt v Hogan [No 1] at 579‑580, as did Spender J in Kainhoffer v Director of Public Prosecutions (1993) 48 FCR 9 at 13 and 15.

17                  Section 21(6)(f) undoubtedly involves a two step process.  The court “may … if there are special circumstances justifying such a course, order the release on bail …”.  Special circumstances must exist before bail can be granted, but there is a discretion to be exercised after special circumstances are found.  It is not inappropriate to describe the first step as a condition precedent to the exercise of the jurisdiction to grant bail.  See Holt at 379 and Kainhoffer at 13.  It is a condition precedent in the sense that it is a requirement that must be satisfied, though its satisfaction does not conclude the decision‑making process because there is still a discretion to be exercised.  Section 15(6) does not involve two distinct steps.  As we have said, when sub‑ss (2) and (6) are read together, the person “shall be remanded … on bail” when there are special circumstances justifying remand on bail.

18                  In Schoenmakers French J said of the “special circumstances” step in s 21(6)(f) (at 74):

“whether there are special circumstances, involves a value judgment about which of the range of circumstances favouring the grant of bail are to be regarded as special and which are not.  That is a judgment to be made by reference to two criteria; the general purpose of the provision imposing the requirement and broader community standards.  The purpose of the special circumstances requirement … is to reduce what is perceived as ‘the very high risk of persons sought for extraditable offences absconding’.  It looks in particular to the case where a person is in Australia to avoid arrest in the country where he is alleged to have committed the offence.”

Of “broader community standards” his Honour said (at 75):

“A presumption in favour of liberty and against deprivation of liberty without just cause runs through the traditions of the common law ….  That presumption must, of course, give way to specific statutory provisions, but where those provisions do, as in the case of the Extradition Act, allow for normative judgments of the special circumstances under which bail may be granted, then the presumptions arising under the common law and in relevant international instruments may be taken into account.”

His Honour identified two special considerations which justified Schoenmakers’ release on bail.  The first was his connection with Australia and the absence of evidence to suggest that he was here as a fugitive.  The second was the fact that, if not released, he would have spent over a year in prison by the time his appeal was heard.

19                  In Holt Cooper J expressed views similar to those of French J.  At 578‑579 his Honour said:

“In my view the correct approach is to start by identifying the policy and public interest underlying the provisions of the Act.  The principal objects of the Act are set out in s 3 ….  Additionally, one bears in mind the concern of the legislature … that experience has shown that there is a very high risk of persons sought for extraditable offences absconding ….

Against these matters one then identifies and weighs the particular circumstances of the applicant for bail keeping in mind broad community standards including a predisposition against unnecessary or arbitrary detention in custody.  In considering the circumstances of a particular applicant for bail one does not exclude those circumstances which ordinarily would fall for consideration on an application for bail where a person is charged domestically for the commission of a crime in this country.  All personal circumstances are taken into consideration ….

The special circumstances which the applicant for bail must establish are those which satisfy the Court that it is justified in departing from the presumption implicit in s 21(6)(f)(iv) of the Act that ordinarily bail is not to be granted ….  Of course, unless the Court was satisfied that it was not probable that the applicant would abscond, it is hard to imagine any situation where special circumstances would be made out.  But in assessing that probability regard may be had to the personal circumstances of the applicant and the ability of the Court to impose conditions which maximise the likelihood that an applicant will answer bail.  It is not in my view that the circumstances are so exceptional or special that it is not probable that the applicant will abscond which is the sole or appropriate test required by s 21(6)(f)(iv), but rather whether the circumstances are such as to displace the ordinary rule against bail because the personal and other public interests underlying the proven circumstances outweigh the statutory interests and concerns evident in ss 3 and 21(6)(f)(iv) of the Act.  Certain matters which touch a particular applicant, for example the time already spent in custody and the time the applicant faces in custody until the Court can determine the merits of the appeal, are matters that may be given considerable weight although in themselves they may not be decisive of the outcome in any particular case.”

20                  We are generally in agreement, with respect, with these observations and with those of French J in Schoenmakers about the way in which the Court should approach the issue of special circumstances under s 21(6)(f).  The fact that s 15(6) does not involve a two step process does not render them inappropriate to the construction of s 15(6).  Under s 15(6) one starts with the presumption implicit in the sub‑section, and explicit in the Explanatory Memorandum, that ordinarily bail is not to be granted.  One then asks whether an applicant has established the existence of special circumstances which displace that presumption.  One does not ask whether there are special circumstances in the abstract, but whether there are “special circumstances justifying such remand”.  In answering the question it is appropriate to take into account the particular circumstances of the applicant together with broad community standards including a predisposition against unnecessary detention in custody.

THE AMERICAN CASES

21                  The special circumstances described in the declaration sought by the appellant are the fact that the offences for which extradition is requested are not treated as serious offences under the law of Mexico, and the fact that the arrest warrants have been stayed.  However, the case before the primary judge and on appeal was conducted on the basis that the first of these facts involved the consequence that the appellant would be entitled to bail in Mexico.  For ease of exposition we will call all these facts “the Mexico facts”.  We were taken to four recent United States District Court decisions dealing with the situation where an applicant for bail pending extradition proceedings would have been entitled to bail in the country seeking extradition had he been arrested there.  There appears to be no legislative equivalent to s 15(6) or s 21(6) in the United States.  The federal common law rule is that bail is not ordinarily granted in extradition cases unless special circumstances are shown and there is no risk of flight or danger to the community.  In Re Nacif‑Borge 829 F Supp 1210 (1993) the Court summarized the common law as follows:

·               A presumption against bail exists in international extradition cases

·               Only special circumstances will justify bail

·               The person seeking bail has the burden of establishing an entitlement to bail

·               An elevated standard of proof must be satisfied

·               The person seeking bail cannot be “a risk of flight” or a danger to the community.

In that case the only special circumstance upheld by the Court was that the applicant would have been granted bail in Mexico (the country seeking extradition) if he had been arrested there for the offence for which Mexico wanted him returned.  He was therefore entitled to bail pending extradition so long as he was not “a risk of flight” or a danger to others.  It was held that he was not such a risk or danger.

22                  In Re Rouvier 839 F Supp 537 (1993) and Re Siegmund 887 F Supp 1383 (1995) other District Courts declined to follow Nacif‑Borge on this issue.  In Re Siegmund the Court said (at 1387):

“Finally, we note that an extradition treaty between sovereign nations is essentially a contract, and the concern in an international extradition case is not to mirror the internal bail practices of the requesting country, but, rather, to deliver the extraditee to that country if the conditions precedent to extradition, as set out in the treaty, are satisfied.  To say that the extraditee would have been granted bail in the requesting country had he been arrested there, or that he will be granted bail once returned there, thus misses the point.”

23                  The final case is Re Morales 906 F Supp 1368 (1995) in which the District Court for the Southern District of California, without referring to Rouvier or Siegmund, said that the fact that the underlying substantive offence was one for which bail was available under Mexican law would not alone justify Morales’ release on bail.  However, in combination with other factors, it contributed to a finding of special circumstances.

THE PRESENT CASE

24                  The magistrate was correct in law in not accepting that the decisions on the expression “special circumstances justifying … release on bail” in s 21(6)(f)(iv) were inapplicable to his task under s 15(6).  The only aspect of the s 21 cases that is inapplicable to s 15(6) is the two step approach they correctly hold is required by s 21.  In our view a fair reading of the magistrate’s reasons discloses that he did not adopt that approach.  He identified the reason behind s 15(6) as the very high risk of flight by those who are sought for extraditable offences.  He then posed the question for determination, namely whether special circumstances existed, and if they did, whether they outweighed the presumption that bail ought not be granted in an extradition case.  As appears from what we have said, we would not have posed the question in precisely that way.  However, although the magistrate’s formulation of the question broke the composite phrase “special circumstances justifying bail” into two parts, we do not think he was thereby caused to apply the wrong test or to err in the application of the correct test to the facts.  As a matter of substance, if not form, the magistrate was not considering the circumstances relied upon as special in the abstract.  Rather, he was considering whether those circumstances were capable of constituting circumstances which might dispose him to grant bail.  Thus, in rejecting the claim that the Mexico facts entitled the appellant to bail, the magistrate dealt with the matter as we think it should be, by saying that the policy of the Act is that persons whose extradition is sought are to be returned to the requesting country “unless special circumstances exist that would justify displacing the presumption against the granting of bail”.  Indeed it was no part of the appellant’s argument before us, or so far as we can tell before the primary judge, that in posing the question he did, the magistrate was in error.  Rather, the argument was that the Mexico facts constituted special circumstances, and that other factors relevant to the grant of bail, including the risk of flight, were to be taken into account in the exercise of the magistrate’s discretion.  We have given our reasons for rejecting that construction of s 15(6).

25                  The only complaint pressed on the appeal was that the primary judge was wrong in not concluding that the magistrate should have found that the Mexico facts were special circumstances justifying the grant of bail under s 15(6).  Whether something is a special circumstance justifying bail is a question of fact for the magistrate.  In the course of argument the appellant’s case was put in different ways.  One was that the Mexico facts “simply cannot be a matter which is irrelevant”.  Another was that those facts are “capable of amounting to special circumstances”.  Another was that the magistrate was “wrong in the way in which he dealt with issues concerning bail in Mexico”.  But counsel came to accept that in order to obtain the declaration sought it was necessary to establish a constructive failure on the magistrate’s part to exercise his jurisdiction.  The constructive failure propounded was his failure to take the Mexico facts into account in determining whether there were special circumstances warranting remand on bail, they being matters he was bound as a matter of law to take into account.  The Act does not specify the matters that must be taken into account in determining whether special circumstances justifying bail exist.  Accordingly, the appellant must establish that by implication the Act requires the domestic attitude to bail of the country seeking extradition to be taken into account by the magistrate when determining whether there are special circumstance justifying remand on bail.  The implication will be found, if at all, by reference to the subject‑matter, scope and purpose of the Act.  Cf Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 39‑40 per Mason J, with whom Gibbs CJ and Dawson J agreed.

26                  One of the principal objects of the Act is to enable Australia to carry out its obligations under extradition treaties: s 3(c).  The importance of this obligation was mentioned by Burchett J in Wu at 307.  The purpose behind the requirement of special circumstances in s 15(6) is to guard against the very high risk of persons sought for extraditable offences absconding.  However, these features of the Act do not carry the implication that in determining whether special circumstances exist, the decision‑maker must take into account that bail would be granted in the country seeking extradition.  Rather the emphasis in each case is on securing the return to the requesting country of the person sought, so that person can be dealt with in accordance with its criminal law and procedure, including its law as to bail.  In a particular case different views might be held about the relevance to the grant of bail under s 15(6) of, or the weight to be given to, the requesting country’s attitude to bail in respect of the underlying offence, as the divergent decisions in the United States demonstrate.  But neither the Act as a whole nor the particular provision in question implies that the fact that an applicant for bail under s 15(6) would have been granted bail in the requesting country had the applicant been arrested there, or will be granted bail once returned there, is a matter an Australian magistrate is bound to take into account in determining whether special circumstances justifying bail exist.

27                  Even if the magistrate was bound to take the Mexico facts into account, on a fair reading of his ruling we think he did.  He said that the fact that a Mexican judge has guaranteed the appellant his liberty upon his return, subject to certain conditions, or that the offences with which he is charged are not regarded as serious, did not in his view “establish” a special circumstance.  The magistrate did not say that facts of that character can never be a special circumstance.  What he said was directed to the facts of the particular case.  He noted that the appellant’s “liberty” was subject to certain conditions‑ provision of a bond for US$50,000, prompt attendance before the judge hearing the criminal case, and attendance before the District Court.  When the magistrate said that the Mexico facts did not, in his view, “establish” a special circumstance, he plainly meant that the factors relied on did not come up to the mark.  He did not say that they were not relevant matters.  If there were any doubt as to whether the magistrate was, on the one hand, dismissing as irrelevant to special circumstances the attitude of the requesting country to bail for the underlying offence, or on the other, was expressing a view as to whether the Mexico facts amounted to a special circumstance, it is dispelled by what appears on the next page of the ruling.  There he said that the guarantee given to the applicant (ie liberty subject to certain conditions) has “little relevance or application” to a request for bail in Australia.  This shows that the magistrate did not consider the Mexico facts irrelevant, but rather that they were of little relevance.  Accordingly, if contrary to our view the magistrate was obliged to take the Mexico facts into account, we think he did, though he did not regard them as entitled to much weight in the case before him.  The weight to be attached to the Mexico facts was within his province.

28                  The declaration sought in the application was not only that the Mexico facts do constitute special circumstances, but that they may constitute special circumstances.  Although the notice of appeal asserts that her Honour should have held that the Mexico facts may constitute special circumstances, this was not pursued at the hearing of the appeal.  Counsel asked for a declaration that the Mexico facts are special circumstances, namely the order that in par 5 of the grounds of appeal it is said her Honour should have made.  Counsel sought orders 1 to 4 appearing under the heading “Orders Sought”.  They did not seek the declaration in order 5, namely that the Mexico facts “do or alternatively may constitute special circumstances”.  Accordingly we need not consider whether a declaration in the “may” form could ever be granted.

CONCLUSION

29                  The primary judge was not in error in concluding that the magistrate did not err in declining to accept that the Mexico facts constituted a special circumstance justifying bail under s 15(6).  The appeal should be dismissed with costs.

Associate:

Dated:              17 August 1999

On appeal from a single judge of the Federal Court of Australia

REASONS FOR JUDGMENT

FINKELSTEIN J:

30                  I agree with Sundberg and Merkel JJ that the appeal should be dismissed with costs.  Subject to the following brief observations, I also agree with their reasons.

31                  First I wish to say something concerning the operation of s 15(6) of the Extradition Act 1988 (Cth).  By s 15(1) a person who is arrested under a provisional warrant (as to which see s 12) must be brought as soon as possible before a magistrate.  The magistrate is required to remand the arrested person in custody or on bail pending proceedings under s 18 for a consensual surrender to an extradition country or proceedings under s 19 to determine whether the arrested person is eligible for surrender:  s 15(2).  However by s 15(6) the arrested person is not to be remanded on bail pending such proceedings “unless there are special circumstances justifying such remand”. 

32                  The need to show special circumstances for the grant of bail in certain situations is not new.  Under the common law when a person was arrested to answer an alleged crime he was required to be brought before a justice of the peace who would examine the circumstances of the crime alleged.  If the investigation showed that the accused may have committed the crime, he was either committed to prison or given bail.  Until 1275 all felonies were bailable.  By 3 Edw I c 15 justices of the peace were denied the right to grant bail for treason and certain other serious offences.  However, the Court of Kings Bench retained the power to grant bail for any crime whatsoever, although for a capital offence good reason had to be shown before the accused could be bailed.  What was intended in the case of a capital offence was that the accused must show special or exceptional circumstances that would justify the grant of bail:  see Re Anderson [1978] VR 322.  See now s 13(2) of the Bail Act 1977 (Vic) which provides:

“Bail shall not be granted to a person charged with treason or murder unless–

(a)               in the case of a person charged with treason – the Supreme Court or a Judge of the Supreme Court; or

(b)               in the case of a person charged with murder –

(i)           the Supreme Court;

(ii)               a judge of the Supreme Court; or

(iii)             the magistrate who commits the person for trial for murder –

is satisfied that exceptional circumstances exist which justify the making of such an order.”

33                  To determine the content of the requirement to show special circumstances justifying the grant of bail under s 15(2) it is, of course, necessary to have regard to the object of the Extradition Act.  That object is to deliver up persons found in Australia who have been charged with or convicted of certain offences committed in a country that has an extradition treaty with Australia.  The object of the Act is advanced if the arrested person is kept in custody pending proceedings under either s 18 or s 19.  As the United States Supreme Court observed in Wright v Henkel 190 US 40, 62 (1903):

“The demanding government, when it has done all that the treaty and the law require it to do, is entitled to the delivery of the accused on the issue of the proper warrant, and the other government is under obligation to make the surrender; an obligation which it might be impossible to fulfil if release on bail were permitted.”

However, in recognition of the fact that detention may cause an arrested person to suffer injustice, bail may be granted in “special circumstances”.  In my opinion this does not mean that the arrested person need only show something that does not exist in an ordinary case.  It means more than that.  To justify the grant of bail the arrested person must establish circumstances that are of sufficient weight to overcome the important reason why bail should ordinarily be refused.  Accordingly bail will ordinarily be refused unless the arrested person would suffer serious injustice if remanded in custody.  What will constitute serious injustice must be determined on a case by case basis.  It will include circumstances as diverse as a risk of serious deterioration of health if the arrested person is remanded in custody and cases where it is highly probable that the arrested person is not eligible for surrender. 

34                  Further, I do not read s 15(6) as imposing a two step inquiry, viz (a) are there special circumstances that justify the grant of bail and (b) if there are such circumstances, should bail be granted.  This is an artificial distinction and one that is likely to lead to error.  Only one inquiry is called for by s 15(6).  The subsection imposes upon the magistrate an obligation to determine whether the facts, matters or circumstances that are put forward by the arrested person in support of his application for bail are so special that bail should be granted.  If they are, then no further inquiry is necessary.  In deciding whether the facts, matters and circumstances that have been put forward do justify remand on bail, the magistrate must take into account all of the factors that militate against bail being granted.  In other words, the magistrate must look to the whole of the circumstances of the case in deciding whether bail is justified.  This is not a novel method of exercising a discretionary power.

35                  Where a magistrate makes an order under s 19 that an arrested person is or is not eligible for surrender, an application for the review of that order may be made under s 21 and provision is made for appeals from the reviewing court.  Section 21(6)(f) provides that pending a review or appeal a court may:

“(iii)    order that the person be kept in such custody as the court directs; or

  (iv)    if there are special circumstances justifying such a course, order the release on bail of the person on such terms and conditions as the court thinks fit;…”

36                  Cases that have considered the power to grant bail under s 21(6)(f)(iv) have held that the consideration of the application does involve a two-step process: the cases are referred to by Sundberg and Merkel JJ in their joint judgment.  The first step is the establishment of a so called “jurisdictional fact” or “condition precedent”, namely that special circumstances do exist which might permit release on bail.  The second step is to determine whether those circumstances in fact justify release on bail.  Unlike the majority, I cannot discern any legislative intent that the approach to the grant of bail under s 21(6)(f)(iv) should be different from the inquiry to be undertaken under s 15(6).  On the contrary, I am of the view that          s 21(6)(f)(iv) does not call for a two-step inquiry for the same reason that I formed the opinion that no such inquiry is required by s 15(6).  The power under s 21(6)(f)(iv) is to be exercised, if at all, when all of the facts and circumstances of the case render it appropriate to disturb the ordinary rule that bail should be refused.

37                  The second matter I wish to address is the claim that the fact that the offences for which the appellant’s extradition is sought are not treated as serious offences and that the two warrants for his arrest have been stayed might constitute special circumstances under s 15(6).

38                  An extradition country may seek the surrender of a person in relation to an extradition offence:  s 18 and s 19.  “Extradition offence” is defined in s 5 as an offence against a law of an extradition country:

  “(i)    for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period not less than 12 months; or

   (ii)    if the offence does not carry a penalty under the law of the country – the conduct constituting which is, under an extradition treaty in relation to the country, required to be treated as an offence for which the surrender of persons is permitted by the country and Australia;…” 

Thus extradition is available in respect of a variety of offences ranging from the very serious to what in Australia are summary offences.  It would be both incongruous and, in my opinion, inconsistent with the object of the legislation if extradition offences could be divided into those which the extradition country regards as serious and those which it does not for the purpose of establishing special circumstances under s 15(6).  It is incongruous, because s 15(2) applies to any person who is arrested under a provisional warrant without regard to the nature of the extradition offence.  It is inconsistent with the object of the legislation, because the extradition country has been granted the right to apply for the surrender of a fugitive for both serious and not so serious offences. 

39                  This is not to suggest that the seriousness of the offence is not a matter to be taken into account for the purpose of deciding whether an arrested person should be remanded in custody or on bail.  It is difficult to see how a magistrate could properly determine whether the grant of bail is justified without regard to the nature of the offence.  For example, the issue may have a direct bearing on the likelihood of an arrested person absconding if bail is granted.  However, the fact that the seriousness of the offence falls to be considered as part of the totality of the circumstances of the case, does not require the conclusion that that circumstance is a special circumstance that justifies the grant of bail.

40                  The same is true of the fact that the two warrants have been stayed with the result that on his return to Mexico, the appellant will be released on bail.  It must be remembered that the object of the Extradition Act is to secure the return of a fugitive to the extradition country.  Whether the fugitive will be held in prison or released on bail pending a trial in the extradition country is a matter for the criminal courts of that country.  For the purpose of an application for remand on bail pending a decision as to whether the arrested person should be surrendered to the extradition country, the possibility of the grant of bail in the extradition country is a matter that might be taken into account, but it could hardly constitute a special circumstance justifying the grant of bail in this country. 

41                  It might be said that my treatment of the seriousness of the offences and the stay of the warrants is deficient in that it deals with those issues as if they were the first step in a two-step inquiry, a process that I have said is not open under s 15(6).  However my approach was dictated by the manner in which the issues were raised both before the magistrate and this court.  In reality, the true question that the magistrate was required to consider was whether, in all of the circumstances of the case, including the fact that the offences with which the appellant had been charged were not serious and that the warrants had been stayed, the appellant had shown that the demands of justice required the grant of bail.  The magistrate did consider the totality of the case and the conclusion that he reached is not vitiated by error. 

Associate:

Dated:              17 August 1999