FEDERAL COURT OF AUSTRALIA

Haddad v Lyon [2003] FCA 1623

KAMAL DIB HADDAD v PAUL LYON AND UNITED STATES OF AMERICA

N1972 OF 2003

EMMETT J

22 DECEMBER 2003

SYDNEY

THE COURT ORDERS THAT:

1.         the notice of motion filed 16 December 2003 be dismissed;

2.         the applicant file and serve, no later than 27 January 2004, a written outline of the contentions upon which he intends to rely;

3.         the respondent file and serve submissions in reply, no later than 2 February 2004;

4.         the proceeding be listed for hearing on 5 February 2004 at 10.15 am;

5.         the Superintendent of Parklea Detention Centre shall have Kamal Dib Haddad, a prisoner, before this Court to be present during the hearing of the proceeding concerning him and duly returned to confinement;

6.         the first day on which it is required to have this prisoner before the Court is at 10.15 am on 5 February 2004 at Court 20E, Federal Court of Australia, Queens Square, Sydney.

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

REASONS FOR JUDGMENT

1                     I have before me an application for bail under s 21(6)(f) of the Extradition Act 1988 (Cth) (‘the Act’).  In order to put the application in context, it is necessary to say something about the scheme of the Act. 

2                     Part II of the Act deals with extradition from Australia to extradition countries.  The United States of America (‘United States’) is an extradition country for the purpose of the Act and the United States has made an application for the extradition of the applicant, Mr Kamal Dib Haddad. 

3                     Section 12 of the Act, which begins Pt II, provides that, where an application is made on behalf of an extradition country to a magistrate for the issue of a warrant for the arrest of a person and the magistrate is satisfied that the person is an extraditable person in relation to the extradition country, the magistrate must issue a warrant for the arrest of the person.  Section 15 of the Act provides that a person who is arrested under such a provisional warrant must be brought as soon as practicable before a magistrate.  Under s 15(2), the person is to be remanded by the magistrate in custody or on bail for such period or periods as may be necessary for proceedings under s 18 or s 19, or both, to be conducted.  However, under s 15(6), a magistrate must not remand a person on bail under that section unless there are ‘special circumstances’ justifying such remand. 

4                     Section 16(1) provides that, where the Attorney-General receives an extradition request from an extradition country in relation to a person, the Attorney-General may, by notice in writing directed to any magistrate, state that the request has been received.  Section 19(1) then provides that, where:

• a person is on remand under s 15;
• the Attorney-General has given a notice under s 16(1) in relation to the person;
• an application is made to a magistrate for proceedings to be conducted under s 19; and
• the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings,

the magistrate must conduct proceedings to determine whether the person is eligible for surrender.

5                     Section 18, on the other hand, provides that, where a person is on remand under s 15 and the Attorney-General has given a notice under s 16(1) in relation to a person, the person may inform a magistrate that the person consents to being surrendered to the extradition country concerned.   Mr Haddad has not consented to being surrendered and has indicated to the Court that he does not with to return to the United States. 

6                     Section 19(2) provides that, for the purpose of s19(1), a person is only eligible for surrender in relation to an extradition offence for which surrender is sought if certain prerequisites are satisfied.  Section 19(5) is important insofar as it provides that, in the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought.  Section 19(9) provides that where, in proceedings under s 19, the magistrate determines that the person is eligible for surrender, the magistrate must:

• order that the person be committed to prison to await surrender;
• inform the person that he or she may seek a review of the order under s 21(1); and
• record in writing the extradition offence or extradition offences in relation to which the magistrate has determined that the person is eligible for surrender.

7                     At a hearing conducted on 10 November 2003, Magistrate Lyon of the Local Court of New South Wales made an order under s 19(9).  Mr Haddad now seeks review of that order under s 21(1).  Section 21(1) provides that, where a magistrate makes an order under s 19(9) in relation to a person whose surrender is sought by an extradition country, the person may apply to the Federal Court for a review of that order.  Under s 21(2), the Court may, by order, confirm the order of the magistrate or quash the order and direct a magistrate to order the release of the person.

8                     Section 21(6) provides that, where the person applies under s 21(1) for a review of an order, the provisions listed in that subsection have effect.  First, the Court to which the application is made must have regard only to the material that was before the magistrate.  Secondly, if, because of the order in question, the person has not been released, the Court may order that the person be kept in custody as the Court directs or, if there are ‘special circumstances’ justifying the course, the Court may order the release on bail of the person on such terms and conditions as the Court thinks fit, until the review has been conducted.  As I have said, it is pursuant to that provision that Mr Haddad now seeks bail.

9                     Bail in extradition cases should be granted only when two conditions are fulfilled: see United Mexican States v Cabal (2001) 183 ALR 645 at 664 [61]-[62].  First, the circumstances of the individual case must be special in the sense that they are different from the circumstances that persons facing extradition would ordinarily endure when regard is had to the nature and extent of the extradition charges.  That means that the circumstances relied on must be different in kind from the disadvantages that all extradition defendants have to endure.  To constitute ‘special circumstances’, the matters relied on need to be extraordinary and not facts applicable to all defendants facing extradition.

10                  Secondly, there must be no real risk of flight.  Absence of a real risk of flight is ordinarily a necessary, but not sufficient, condition of bail.  When there is a real risk of flight, ordinarily bail should be refused.  Further, the risk of flight should be considered independently of the effect of proposed bail conditions.  The history and character of the defendant and the potential punishment facing the defendant are likely to be surer guides to the risk of flight than bail conditions, even rigorous conditions.  A person fearing punishment and inclined to flee is unlikely to be diverted from that course by the prospect that his or her sureties may forfeit their securities or by stringent reporting conditions. 

11                  Further, before a Federal Court judge grants bail, the defendant ordinarily will need to show that the application for the view has strong prospects of success, as well as special circumstances and an absence of risk of flight.

12                  Mr Haddad relies upon a number of matters as constituting special circumstances.  However, before I deal with those matters, it is desirable to say something about the allegations that have lead to this proceeding. 

13                  On 23 May 2002, Mr Haddad was arrested and charged with various felony offences under the law of California.  Some of those offences have, in the events which have happened, ceased to be relevant.  The presently relevant offences were, first, making a criminal threat contrary to s 422 of the California Penal Code and, secondly, using personal identification information of another to obtain credit contrary to s 530.5 of the California Penal Code.  Mr Haddad was released from custody after posting a total of $275,000 bond.  However, on 10 July 2002, he failed to appear in court in California, his bond was forfeited and a warrant was issued for his arrest for those offences.

14                  In October 2002, the United States authorities received information that Mr Haddad was living in Western Australia.  On 9 May 2003, a magistrate of the State of Western Australia issued a provisional warrant for the arrest of Mr Haddad pursuant to s 12 of the Act and, on 10 May 2003, Mr Haddad was arrested at Sydney Kingsford Smith Airport.  On 11 May 2003, he appeared before Parramatta Local Court and was remanded in custody in respect of that warrant.  On 6 July 2003, the Minister for Justice and Customs issued a notice under s 16 of the Act in respect of the offences the subject of that provisional arrest warrant.

15                  On 28 July 2003, the Minister for Justice and Customs issued a further notice under s 16 of the Act in respect of further offences for which the court in California had issued arrest warrants.  Those offences were as follows: first, engaging in three or more acts of lewd and lascivious conduct with a child under 14 contrary to s 288.5 of the California Penal Code; secondly, perjury contrary to s 118 of the California Penal Code; and, thirdly, making a false statement contrary to s 532 of the California Penal Code.

16                  On 29 July 2003, a further provisional arrest warrant was issued in respect of Mr Haddad and that was executed on Mr Haddad in the cells of Central Local Court on 30 July 2003.  On that day, Mr Haddad appeared before a magistrate at Central Local Court and has been remanded in custody in respect of the second warrant since that date.  Mr Haddad has appeared on a number of occasions before the Local Court of New South Wales.  On 30 July 2003, the matter was adjourned to 13 August 2003 at the request of the Commonwealth Director of Public Prosecutions so that the extradition papers could be finalised.  That request was granted pursuant to the requirement of s 19(1)(d) that the magistrate must be satisfied that the parties have had reasonable time in which to prepare for the conduct of the proceeding. 

17                  On 13 August 2003, the matter was adjourned again to enable an application for bail to be heard on 20 August 2003.  On that day, Mr Haddad applied for bail before Magistrate Lyon pursuant to s15(5) of the Act.  That application was refused.  The matter was then adjourned to 24 September 2003 for the purpose of obtaining a date for a hearing pursuant to s 19.  On that day, the matter was fixed for hearing on 26 September 2003. 

18                  On 26 September 2003, the hearing commenced and was stood down to 2.00 pm to enable the magistrate to consider the extradition papers.  When the matter resumed at 2.00 pm, counsel then appearing for Mr Haddad informed the magistrate that his instructions had been withdrawn.  The matter was then stood over to 15 October 2003 for the purpose of fixing a date for further hearing.  On that day, the matter was set down for hearing on 10 November 2003.  When the matter came on for hearing on that day, Mr Haddad appeared in person.  An application for adjournment was refused and Lyon LCM embarked on the hearing that resulted in the order to which I have already referred. 

19                  Against that background, I now consider the matters referred to by Mr Haddad as constituting special circumstances.  The first matter might be characterised as the hardship of incarceration in company with serious criminals including murderers and accused murderers.  That, it seems to me, is an unfortunate consequence of the provisions of the Act, which require detention pending the determination of the application for surrender.  I have no doubt that it is extraordinarily distasteful, particularly for a person innocent of charges to be detained.  That of itself, however, does not constitute a special circumstance. 

20                  Mr Haddad has suffered depression as a consequence of the detention that he has suffered for some time.  There is however, no medical evidence to indicate that the depression is of such a serious nature as to constitute special circumstances.  I have no doubt that detention in these circumstances would cause depression in any normal person.

21                  Next, Mr Haddad says that he has been in custody since May 2003.  While it is highly undesirable that there should be delays in the finalisation of an extradition application such as this, I am not persuaded that the delay up to now is such as to constitute a special circumstance.  In that regard, it is of some relevance that I offered a final hearing of the review tomorrow.  That was opposed by the United States, represented by the Commonwealth Director of Public Prosecutions.  However, more significantly, Mr Haddad indicated that he was not ready to proceed tomorrow, because he wished to make further efforts to obtain legal representation.

22                  Finally, Mr Haddad referred to the circumstance that he has brought a new wife to Australia who has no friends in Australia and does not speak English.  He says that he came to Australia to visit his children of an earlier marriage, who reside in Australia, and that he would not have brought his new wife had he known the conditions under which she would have to stay.  The evidence indicates that Mr Haddad’s wife is staying with friends who have some knowledge of her native language, namely Arabic, and who can assist with interpretation into English.  Clearly, that circumstance is not ideal.  However, it appears that she is able to manage and I do not consider that, even coupled with the other circumstances, it is sufficient to constitute special circumstances with the meaning of the Act.   

23                  The second consideration is the risk of flight.  Mr Haddad has given assurances to the Court that he has no intention of flight and that he simply wishes to spend some time with his new wife, having regard to the fact that he is a Christian and Christmas is fast approaching.  However, I have to have regard to the fact that Mr Haddad appears to have paid little regard to bail undertakings in which security in the sum of $275,000 was forfeited by reason of his failure to attend the court in California.  Mr Haddad says that there was some misunderstanding and that he was advised by his lawyers that he should not worry until he had overcome the fear that he experienced at the time.  I do not find that particularly convincing.  It seems to me that there must be some risk of flight, having regard to that history. 

24                  That concern is added to by the extent to which Mr Haddad has changed his name in the last 10 years or so.  I assume, for the moment, that the name with which I have referred to Mr Haddad is his original name.  However, in June 1994, Mr Haddad had issued to him a certificate of Australian citizenship in the name of Ken Hamilton.  In September 1998, he formally changed that name to Issac Elmezieb.  Then, in December 2000, he was issued with an Australian passport in the name Issac Elmezieb.  In October 2001, he was issued with a United States’ passport in the same name. 

25                  However, on 10 July 2002, he changed his name again, from Issac Elmezieb to Samuel Haddad.  When Mr Haddad was arrested in Sydney, he had in his possession identity documents in relation to all of those names, together with further identity documents in other names.  He says that one of the further documents was the passport of his father.  He also had identity documents in the name of Kamal Haddad which, as I have said, appears to be his original name.  Bearing in mind that one of the charges against Mr Haddad is using personal identifying information of another to obtain credit, the fact that he carries so many identity documents in different names is a matter of concern. 

26                  In the course of this hearing, I invited Mr Haddad to indicate to me the grounds upon which he sought review of the magistrate’s order.  He was unable to point to any specific ground.  There is, on the face of the material before me, nothing that indicates a ground of review.  That is not to say that some ground may not be established.  However, Mr Haddad has certainly failed to show that his application for review has strong prospects of success. 

27                  In all the circumstances, I consider that the application for bail should be refused. 

Associate:

Dated:              22 January 2004