FEDERAL COURT OF AUSTRALIA

Kalejs v Republic of Latvia [2001] FCA 676

EXTRADITION – person committed to prison pending surrender under surrender warrant – special circumstances justifying release on bail – whether advanced age and medical condition constitutes special circumstances

WORDS AND PHRASES – “special circumstances”

Extradition Act 1988 (Cth), ss 15, 16, 19, 21

Bertran v Vanstone (1999) 94 FCR 404 applied

Timar v Republic of Hungary [1999] FCA 1559 applied

Timar v Republic of Hungary [1999] FCA 691 referred

Bertan v Vanstone [1999] FCA 464 followed

Cabal v United Mexican States (No 5) [2000] FCA 525 referred

Cabal v United Mexican States [2001] FCA 97 referred

Holt v Hogan (No 1) (1993) 44 FCR 572 referred

KONRADS ALFREDS KALEJS v REPUBLIC OF LATVIA & ANOR

V 615 of 2001

KENNY J

MELBOURNE

6 JUNE 2001

THE COURT ORDERS THAT:

Pursuant to s 21(6)(f)(iv) of the Extradition Act 1988 (Cth), the applicant be released on bail until the review has been heard and determined on his own undertaking upon the following further conditions:

(1)       that he reside that he reside permanently at the Latvian Retirement Village, Fraser Crescent, Wantirna, Victoria;

(2)       that he notify the Melbourne Office of the Commonwealth Director of Public Prosecutions, in writing, within 24 hours of any proposed change of address;

(3)       that he surrender all passports and other travel documents held by him (or held on his behalf), whether in his own name or any other name, to the Officer in Charge, Australian Federal Police, 383 LaTrobe Street, Melbourne, Victoria;

(4)       that he not apply for a passport or any other travel document; and

(5)       that he not attend at any airport or any other point of international departure.

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

REASONS FOR JUDGMENT

1                     On 29 May 2001, the second respondent, a magistrate acting pursuant to s 19 of the Extradition Act 1988 (Cth) (“the Act”), determined that the applicant, Konrads Alfreds Kalejs, was eligible for surrender in relation to extradition offences for which surrender is sought by the first respondent, the Republic of Latvia.  An order was made pursuant to s 19(9) of the Act that the applicant be committed to prison to await surrender under a surrender warrant. 

2                     On 29 May 2001, the applicant filed an application pursuant to s 21(1)(a) of the Act for a review of the second respondent’s order.  By way of interlocutory relief, the applicant sought an order releasing him on bail pursuant to s 21(6)(f)(vi) of the Act.  The application was supported by an affidavit sworn by the applicant’s solicitor, Mr Gerard Lethbridge.  I heard the application for bail the same day.  After hearing submissions on behalf of the applicant and the first respondent, I ordered that the applicant be released on bail until the review had been heard and determined on his own undertaking on the following conditions:

(1)   that he reside permanently at the Latvian Retirement Village, Fraser Crescent, Wantirna, Victoria;

(2)   that he notify the Melbourne Office of the Commonwealth Director of Public Prosecutions, in writing, within 24 hours of any proposed change of address;

(3)   that he surrender all passports and other travel documents held by him (or held on his behalf), whether in his own name or any other name, to the Officer in Charge, Australian Federal Police, 383 LaTrobe Street, Melbourne, Victoria;

(4)   that he not apply for a passport or any other travel document; and

(5)   that he not attend at any airport or any other point of international departure.

3                     When I made my orders, I indicated that I would deliver reasons for judgment at a later date.  These reasons follow.

background

4                     The applicant, who is eighty-seven years of age, was born on 26 June 1913.  He emigrated to Australia in 1950 and is an Australian citizen.  On 12 December 2000, the first respondent requested that the applicant be returned to it for prosecution for the offences of war crimes and genocide.  On 13 December 2000, the Minister for Justice and Customs gave notice pursuant to s 16 of the Act that an extradition request had been received in relation to the applicant from the first respondent.  Also on 13 December 2000, a magistrate issued a warrant, pursuant to s 12 of the Act, for the applicant’s arrest.  He was arrested the same day and subsequently released, pursuant to s 15 of the Act, on bail on his own undertaking subject to conditions.

5                     A hearing under s 19 of the Act in relation to the applicant commenced before the second respondent on 14 May 2001.  As already noted, the second respondent made her determination that the applicant was a person eligible for surrender on 29 May 2001, and ordered that he be committed to prison as she was required to do by s 19(9) of the Act.  The hearing before this court on 29 May 2001 was concerned only with the question whether the applicant should be released on bail pursuant to s 21(6)(f)(iv) until the review has been conducted.

6                     It appears that the applicant complied with the conditions of his bail from the date of his release on 13 December 2000 until 29 May 2001, when he again sought bail in this court.

the applicable legal principles

7                     Where a magistrate determines under s 19 of the Act that a person is eligible for surrender, the person may make an application for review under s 21(1)(a) of the Act.  Section 21(6)(f) provides that the court to which the review application 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 … .

8                     A finding that there are special circumstances justifying the release on bail has been described as a condition precedent to the court exercising its discretion to order release under s 21(6)(f)(iv):  see, e.g., Bertran v Vanstone (1999) 94 FCR 404 at 412 and Timar v Republic of Hungary [1999] FCA 1559 at [21].  In the former case, Sundberg and Merkel JJ said at 412-413:

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.

9                     In Bertran v Vanstone [1999] FCA 464 (upheld on an appeal reported at (1999) 94 FCR 404), I stated at [16]-[19]:

The Act does not state expressly what are ‘special circumstances’ for this purpose.  In settling upon the relevant criteria by reference to which such a judgment may be made, it is, I think, necessary to consider, first, the objects of the Act, which are set out in s 3, and the purpose of subs 15(2) and subs 15(6).  The explanatory memorandum which accompanied the Extradition Bill 1987, set out in Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 at 73-4, explained the ‘special circumstances’ requirement in clause 15(6) in the following terms:

‘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’.

In evaluating whether there are special circumstances shown, the first consideration is, therefore, the purpose of the special circumstances requirement, namely, to take account of ‘the very high risk of persons sought for extraditable offences absconding’:  cf Schoenmakers 30 FCR at 74 per French J; Holt v Hogan (No 1) (1993) 44 FCR 572 at 578 per Cooper J; and Kainhoffer 48 FCR at 13 per Spender J. 

Plainly enough, the risk of absconding is not the only consideration.  In Schoenmakers, French J also referred to the need to evaluate the factors relied on as constituting special circumstances (in that case, for the purpose of s 21(6)(f)(iv)) by reference to ‘broad community standards’, including the ‘presumption in favour of liberty and against deprivation of liberty without just cause’:  30 FCR at 75.  Cooper J adopted the same approach in Holt v Hogan (No 1) 44 FCR at 579.  His Honour added in that case:

‘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, notwithstanding that some or all of them will again fall for consideration if special circumstances are established as a condition precedent to the exercise of a jurisdiction to grant bail.’

Ultimately, whether any factor or group of factors will amount to ‘special circumstances’ (when account is taken of the statutory purpose and the circumstances of the case, measured in part at least by broad community standards) will depend upon whether the relevant magistrate is satisfied that that factor or those factors justify departing from the position in the ordinary case where bail will not be granted:  cf Holt v Hogan (No 1) 44 FCR at 579.  As Burchett J said in Wu v Attorney-General of the Commonwealth (1997) 79 FCR 303 at 307 the expression ‘special circumstances’ ‘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’.  See too McDade v United Kingdom (unreported, R D Nicholson J, 15 February 1999).

I accept, as the applicant’s counsel submitted, that ‘special circumstances’ may be demonstrated by a single factor or by a combination of factors:  cf Wu 79 FCR at 307.  It is unnecessary, if not impossible, to compile an exhaustive list of those circumstances which are relevantly special.  The Act, in s 15(2) and s 15(6), requires the magistrate, who is charged with making the decision as to bail, to consider all the facts pertaining to any bail application, before determining whether there are special circumstances which take the case out of the ordinary and justify remand on bail:  cf R v Giordano (1982) 31 SASR 241 at 243 per King CJ (with whom Zelling and Matheson JJ agreed) and Forest v Kelly (unreported, Lockhart, Ryan and Heerey JJ, 20 December 1991).  A similar approach is taken in determining whether ‘exceptional circumstances’ exist justifying a grant of bail for the purposes of ss 4 and 13 of the Bail Act 1977 (Vic):  see Application of Michael Kanfouche (unreported, Smith J, 4 April 1991); Application of Matthew Thomas (unreported, Hampel J, 2 October 1996) and Application of John Moloney (unreported, Vincent J, 31 October 1990).  If the relevant magistrate decides that there are such special circumstances, then it falls to him to consider whether to remand the applicant on bail and, if so, upon what terms and conditions:  see Schoenmakers 30 FCR 74 per French J and Holt v Hogan (No 1) 44 FCR at 580 per Cooper J.

10                  Goldberg J (with whom Branson and Dowsett JJ agreed) adopted these remarks in Timar v Republic of Hungary [1999] FCA 1559 at [21] in considering “special circumstances” for the purpose of s 21(6)(f)(iv) of the Act. 

11                  In Timar v Republic of Hungary [1999] FCA 1559, Goldberg J concluded, at [22]-[23], that the applicant’s health, the low risk of his absconding because of his lack of convictions, his Australian citizenship, his Australian home, his employment and the fact that he did not flee Hungary, as well as the nature and gravity of the alleged offences were matters which were properly taken into account in considering the grant of bail.  But Goldberg J said, at [23], that:

[A]bsent the circumstance in relation to the applicant’s health, I would not have been satisfied that in this case, taken either singly or together they would have amounted to ‘special circumstances’ for the purposes of s 21(6)(f)(iv) of the Act.  There is nothing particularly unusual or different about a person who has no convictions being charged with an offence or the fact that he is in employment in a senior position.  Although the applicant is an Australian citizen and his home is in Australia it does not follow that he will not abscond within Australia. 

As appears below, these observations are relevant to the present application.

12                  If special circumstances exist for the purposes of s 21(6)(f)(iv) of the Act, then the court must determine whether, as an exercise of discretion, bail should be granted:  see, e.g., Bertran v Vanstone (1999) 94 FCR 404 at 412; Cabal v United Mexican States (No 5) [2000] FCA 525 at [8] considered in Cabal v United Mexican States [2001] FCA 97.  As Cooper J pointed out in Holt v Hogan (No 1) (1993) 44 FCR 572 at 580:

If special circumstances are identified, then the next question is whether as a matter of discretion bail ought to be granted.  The primary consideration in the exercise of this discretion is whether the circumstances of the applicant and the appropriate conditions of bail are such as to satisfy the Court with a reasonable level of certainty that the applicant will remain available for extradition in the event that any appeal be unsuccessful. 

the parties’ respective positions

13                  The applicant submitted that the following factors amounted to special circumstances justifying his release on bail: 

(a)    his poor health;

(b)    his need for regular medical treatment and nursing care;

(c)     his advanced years;

(d)    the unexplained and very lengthy delay in making the extradition request;

(e)     the fact that he is an Australian citizen; 

(f)       the fact that Latvia will not extradite its citizens to Australia, and it is exceptional to extradite Australian citizens to such countries;

(g)    the strength of the grounds for review;

(h)    his lack of any prior convictions; 

(i)      the nature of the conduct in fact alleged, which, although described as “war crimes” and “genocide” by Latvia, does not involve:

·        Mr Kalejs’s presence at any death camp or extermination camp, but rather as external guard at the Salaspils Police and Labor Education Camp (into which camp it is not alleged he ever entered);

·        any personal violence on the part of Mr Kalejs or in his presence;

·        any planning, organisation or imposition by Mr Kalejs of the conditions within Salaspils.

14                  In connection with pars (a) and (b) above, Mr Lethbridge deposed:

Mr Kalejs suffers from blindness, hearing deficiency, prostate cancer, and dementia.  He is not able to stand with steadiness or walk for more than a few steps unaided. 

The Applicant is in need of regular medical treatment and nursing care.

Medical reports concerning the applicant and bearing dates between 8 February 2001 and 15 May 2001 were exhibited to Mr Lethbridge’s affidavit, including reports from a treating general practitioner, a consulting neuropsychologist, a consultant physician in geriatric medicine, a consultant psychiatrist and psychogeriatrician, and an ophthalmologist. 

15                  The first respondent accepted that the applicant is eighty-seven years of age and an Australian citizen.  It accepted that at all relevant times the applicant had complied with the conditions of bail imposed upon him in December 2000.  The first respondent further accepted that “the medical reports relied upon by [the applicant] state that [he] appears to be unwell”, although it observed that the offences for which extradition is sought were serious.  The first respondent did not dispute that the court had jurisdiction to grant the application for bail and did not oppose the grant of bail on the conditions that the court subsequently imposed.  The applicant did not object to these conditions.

reasons for grant of bail

16                  Plainly enough, some of the factors relied on by the applicant are contentious, and I am in no position at this stage of the proceeding to form a view about them.  These were factors (d), (f), (g), and (i) in the applicant’s list of factors set out above.  I granted bail because of the applicant’s advanced age and the evidence concerning his medical condition, and because there seemed to me little risk that the applicant would abscond if he were granted bail.  As already noted, in Timar v Republic of Hungary [1999] FCA 1559, the Full Court accepted that a bail applicant’s medical condition may constitute “special circumstances” justifying release on bail in upholding Weinberg J’s decision ([1999] FCA 691) to the same effect. 

17                  In this case, the applicant’s medical condition was well documented in the medical reports to which I have already referred.  In a letter dated 15 May 2001, the applicant’s treating general practitioner stated that the applicant:

suffers from prostate cancer, blindness, increasing dementia and marked frailty of age.  …  [W]ith his rapid decline mentally his insight into the proceedings approaches zero … . 

In a report of 18 March 2001, a consulting neuropsychologist stated:

The pattern of performances revealed by Mr. Kalejs … indicates a man of 87 years and 8 months who presents at this point in time as having some self – and carer – reported deterioration in his cognitive function over the last few years.  He is a man of low average to average pre-morbid intelligence who performs at this level consistently in the present on tests of well-learned functions but in a significantly impoverished way on tests of working memory which is significantly lower than would be expected on the basis of his pre-morbid level of functioning.  His performance on tests of memory functions indicates a diminution of his performance in comparison to estimates of his premorbid levels of functioning on most aspects of audio-verbal learning after delay and in terms of his recognition memory.  He has evidence of compromise in his ability to be able to complete automatic sequences, and as well as this, a mild compromise in confrontational naming and significant impoverishment of his verbal fluency performances. 

All of these performances taken together seem to indicate that Mr. Kalejs is performing at less than the level that would be expected for a man of his age in comparison to the normative standard and are consistent with the notion of a dementing condition of a mild to moderate degree.

The neuropsychologist added:

I would anticipate that due to Mr. Kalejs’ problems with memory and working memory functions, his difficulty in language comprehension and his problems with automatic sequences that he would have quite some difficulty in understanding complex processes associated with his legal situation.  He would require comprehensive reminding of what had taken place before and would require constant updating on information that was going on, on a second by second basis. 

In a report dated 28 March 2001, a consultant physician in geriatric medicine said:

Mr. Kalejs has significant cognitive impairment involving both his memory and speed of thinking as well as significant impairment in his higher level functions such as abstraction, planning, reasoning and mental flexibility.  …  [I]t is clear that he has a dementing illness.

A consultant psychiatrist and psychogeriatrician stated, in a report dated 10 April 2001:

In summary then we have a gentleman with a moderate degree of dementia most likely multi infarct in type that is progressive in degree and nature.  He is appropriately placed in a nursing home where he requires full care and supervision with his [activities of daily living].

In a report dated 8 February 2001, an ophthalmologist confirmed that the applicant has “a combination of advanced (end stage) chronic glaucoma and atrophic age related macular degeneration”, and that he was unable to read. 

18                  The applicant’s advanced age and his medical condition led me to conclude that there were in this case “special circumstances” shown for the purpose of s 21(6)(f)(iv) of the Act.  Further, having regard to his age, his medical condition, and the fact that he has complied with bail conditions since 13 December 2000, I was satisfied that there is little risk that the applicant would abscond if I granted bail upon the conditions nominated by the second respondent and accepted by the applicant. 

19                  Accordingly, I determined to order the release of the applicant on bail on his own undertaking upon the conditions to which I have referred.

Associate:

Dated:              6 June 2001