FEDERAL COURT OF AUSTRALIA

Kurr v United States of America [2000] FCA 1236

Extradition Act 1988 s 21(6)(f)(iv)

Bertran v Minister for Justice (1999) 165 ALR 155 applied

Forrest v Kelly (Full Court, unreported, 20 December 1991) cited

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

McDade v United Kingdom [1999] FCA 509 cited

Tima v Republic of Hungary [1999] FCA 691 cited

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

ANTHONY KENNETH KURR v UNITED STATES OF AMERICA, ATTORNEY‑GENERAL OF THE COMMONWEALTH OF AUSTRALIA and MAGISTRATES’ COURT OF VICTORIA

V 644 OF 2000

SUNDBERG J

4 SEPTEMBER 2000

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

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

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

REASONS FOR JUDGMENT

1                     On 15 August 2000 a magistrate determined under s 19(9) of the Extradition Act 1988 that the applicant was eligible for surrender to the United States of America in relation to the extradition offences of racketeering (1 count), visa fraud (5 counts) and alien smuggling (5 counts).  He was committed to prison to await surrender.  On 28 August he applied for review of the magistrate’s decision pursuant to s 21(1) of the Act.  At the same time he applied for bail under s 21(6)(f)(iv).  That is the application now before me.  In the circumstances to which it applies, which include the applicant’s circumstances, the Court is empowered to order release on bail “if there are special circumstances justifying such a course”.

2                     There was no dispute about the law relating to applications under s 21(6).  It was recently discussed by a Full Court in Bertran v Minister for Justice (1999) 165 ALR 155, and both parties accepted the law as it was stated in the joint judgment of Sundberg and Merkel JJ in that case.  It is sufficient to say that the phrase “special circumstances” justifying release on bail 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”: (1999) 165 ALR at 161 and 165.

3                     The principal matters the applicant relied on to establish the existence of special circumstances were:

(a)                he is an Australian born Australian citizen

(b)               his family are resident in Australia and until his imprisonment he lived with his parents

(c)                he has continuing employment in Australia, though his job is not secure should he not obtain bail

(d)               he has no convictions

(e)                he co‑operated with the authorities investigating the matter prior to and at the time of his arrest

(f)                 he has been on bail for over nine months and has complied with all conditions and requirements of the grant

(g)                he has answered bail on all occasions

(h)                he is not in Australia as a fugitive from the United States

(i)                  the offences for which he is sought in the United States are founded on conduct committed entirely in Australia

(j)                 a co‑accused with weaker ties to Australia has been granted bail

(k)               he has an arguable case on the review of the magistrate’s decision.

4                     Factor (k) is a neutral consideration, and it was not suggested that I should attempt to predict whether the applicant would be successful on the review.  Since I am the docket judge, it would be inappropriate that I should express a tentative view of the outcome.  In those circumstances the parties agreed that I should simply assume that the applicant had an arguable case.

5                     The evidence relating to factor (j) is unsatisfactory.  It appears that the co‑accused was granted bail in circumstances which included the fact that he required surgery to his eye.  No detail was provided.  In those circumstances, the two cases are insufficiently similar for any useful comparison to be made.

6                     Based on factors (a), (b), (c), (e), (f), (g), (h) and (i), I am prepared to accept that the risk of the applicant absconding while on bail is not high.  Nevertheless, I do not regard that assessment as amounting to a special circumstance justifying the grant of bail.  The strongest factor to my mind is factor (h) (which is related to factor (i)).  But that factor, together with other conventional factors such as the existence of family in Australia, employment here, absence of convictions and compliance with bail conditions, has been unsuccessfully relied on in comparable applications.  See, for example, Forrest v Kelly (Full Court, unreported, 20 December 1991), Holt v Hogan [No 1] (1993) 44 FCR 572, McDade v United Kingdom [1999] FCA 509 and Timar v Rpublic of Hungary [1999] FCA 691.

7                     A matter to which importance has been attached in prior cases is the length of time the applicant is likely to remain in custody pending appeal or review.  Thus in Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 French J, in granting bail, was influenced by the fact that if not released Schoenmakers would have spent over a year in prison by the time his appeal was heard.  By contrast, in the present case, it should be possible for the principal application to be heard fairly soon.

8                     The applicant has not persuaded me that any of the matters relied on, or all of them taken together, constitute special circumstances justifying release on bail, and the application is refused.

Associate:

Dated:              4 September 2000