FEDERAL COURT OF AUSTRALIA

Habib v The Kingdom of Belgium [2004] FCA 486

EXTRADITION – bail – whether special circumstances exist – time served awaiting extradition disproportionate to likely sentence and nature of offence – applicant’s prospects of success in applications for review not strong – risk of flight – special circumstances not established

Extradition Act 1988 (Cth) ss 12, 12(1), 15(2), 15(6), 16, 16(1), 17(1), 18, 19, 19(9), 19(3)(c)(ii), 21(6)(f)

Federal Court of Australia Act 1976 (Cth) s 23

Extradition (Kingdom of Belgium) Regulations

Barton v Commonwealth (1974) 131 CLR 477 cited

Cabal v United Mexican States (No 3) (2000) 186 ALR 188 cited

Commonwealth Director of Public Prosecutions v Lijo [2002] WASC 154 cited

Director of Public Prosecutions of the Commonwealth v Kainhofer (1995) 185 CLR 528 cited

Ditfort, Re; Ex parte Deputy Commissioner of Taxation (NSW) (1988) 19 FCR 347 cited

Levinge v Director of Custodial Services (1987) 9 NSWLR 546 cited

Matter of Extradition of Morales (1995) 906 F Supp 1368 cited

Oskar v Government of Australia [1988] 1 All ER 183 cited

Tan Hock Chan v Menteri Dalam Negeri [1994] 1 MLJ 60 cited

Timar v Republic of Hungary [1999] FCA 691 cited

United Mexican States v Cabal (2001) 209 CLR 165 cited

Zoeller v Attorney-General (Cth) (1987) 16 FCR 153 cited

TONY HABIB v THE KINGDOM OF BELGIUM, SENATOR CHRISTOPHER MARTIN ELLISON (In his capacity as Minister for Justice and Customs), JEREMY PACKINGTON Magistrate and THE CHIEF FEDERAL MAGISTRATE OF WESTERN AUSTRALIA

W5 of 2004

TONY HABIB v THE KINGDOM OF BELGIUM and GIUSEPPE CICCHINI Magistrate

W36 of 2004

RD NICHOLSON J

23 APRIL 2004

PERTH

THE COURT ORDERS THAT:

1.                  In proceeding W5 of 2004:

(a)        the applicant’s notice of motion dated 12 March 2004 be refused; and

(b)       there be no order as to costs.

2.                  In proceeding W36 of 2004:

(a)        the applicant’s notice of motion dated 15 March 2004 be refused; and

(b)       there be no order as to costs.

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

REASONS FOR JUDGMENT

1                     The applicant brings two notices of motion seeking his release on bail on such terms and conditions as the Court shall determine pending the determination of two applications he brings to the Court. 

2                     In proceeding W5 of 2004 the applicant brings a claim seeking declaratory and injunctive relief based on the alleged invalidity of a notice issued by the second respondent in that proceeding under s 16 of the Extradition Act 1988 (Cth) (‘the Act’) and the invalidity of the warrant issued by the third respondent under s 12 of the Act and additionally based on the invalidity of the detention of the applicant.  In that proceeding the application for bail is brought in reliance on s 23 of the Federal Court of Australia Act 1976 (Cth).  The first respondent disputes that s 23 provides a proper foundation for the application.

3                     In proceeding W36 of 2004 the applicant claims review of an order made by the second respondent on 2 February 2004 that the applicant be committed to prison pursuant to s 19(9) of the Act and an order quashing the order of commitment.  In this proceeding the application for bail is brought in reliance on s 21(6)(f) of the Act.  That provides relevantly that where a person applies for review of an order under s 19(9) of the Act and the person has not been released, the court to which the 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 or the appeal has been heard; …’

4                     The principles underlying the grant of bail in extradition cases were considered by the High Court of Australia in United Mexican States v Cabal (2001) 209 CLR 165.  Essentially, it is a question of whether there are ‘special circumstances’ justifying bail and whether the applicant is a ‘flight risk’. 

5                     In their reasoning in Cabal (at 189, at [57]), Gleeson CJ, McHugh and Gummow JJ commenced by stating that:

‘In a particular situation, the special circumstances may be so cogent that bail should be granted although there is a slight risk of flight.  Nevertheless, to grant bail where there is a real risk of flight could only be justified in the most extraordinary circumstances.  In the vast majority of cases, the proper exercise of discretion requires the refusal of bail if there is such a risk.’

A consideration behind this reasoning was that a risk of flight may jeopardise Australia’s relationship with the country seeking extradition.  Australia has ‘a very substantial interest’ in surrendering the person in accordance with its treaty obligations (at 190, at [58]).  Reference was also made to the Explanatory Memorandum to the Extradition Bill 1987 at 18 explaining the circumstances for the introduction of ‘special circumstances’ requirement in s 15(6) of the Act.  There it was stated that such a provision was considered necessary because experience had shown that there was a very high risk of persons sought for extraditable offences absconding. 

6                     The High Court summarised its reasoning in the following paragraph at 191, at [61]:

‘Given this background and the rationale for the “special circumstance” condition, bail in extradition cases should be granted only when two conditions are fulfilled.  First, the circumstances of the individual case are 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.  This 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 factors applicable to all defendants facing extradition” (Matters of Extradition of Morales (1995) 906 F Supp 1368 (SD Cal).  Secondly, there must be no real risk of flight.  Absence of a real risk of flight is ordinarily a necessary but not a 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 the proposed bail conditions.  In this area of law, 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.  Even if the defendant has to report twice daily to the police, he or she will have a period of twelve to fourteen hours in which to leave Australia.’

Nevertheless, the Court added (at 191, at [62]) that ‘even when special circumstances are proved and there is no real risk of flight, it does not follow that bail must be granted’.  It instanced circumstances where a defendant may pose a risk to the community or a particular individual or where the case has advanced in the judicial system.  It was said that ‘before a Federal Court judge grants bail, the defendant ordinarily will need to show that the application for review has strong prospects of success as well as special circumstances and an absence of risk of flight’ (at 192, at [62]). 

applicant’s circumstances

7                     The offence for which extradition of the applicant is sought relates to the alleged defrauding of US$35 000 (approx AUS$50 000) from one Jarmilla Byckovova by the applicant between 20 May 1997 and 21 August 1998.

8                     It is alleged that Ms Byckovova, a Czech citizen, contracted with First Dutch Securities Ltd (which is registered in the Bahamas) to arrange to obtain a loan on her behalf.  First Dutch Securities Ltd is a company associated with the applicant and Allen Gottlieb, a disbarred American lawyer suspected as his accomplice.  Ms Byckovova had seen an advertisement for this company’s services in an English magazine and travelled from Czechoslovakia to attend its branch office in Antwerp, Belgium on several occasions between March and November 1998.  She dealt with both the applicant, who was introduced to her as Mr Tamini, and Gottlieb.  The promised loan was for US$8 million in return for fees of US$400 000.  Ms Byckovova was provided with a coupon entitled ‘Credit Suisse US$8,000,000.00 Zero Coupon MTN’ on the letter head of the applicant’s company Tamini Group Investments and Securities, located at the same address as First Dutch Securities.  After payment of the upfront first-instalment fee of US$35 000 to First Dutch Securities the loan agreement was not honoured and was unenforceable.  Ms Byckovova lost her money paid and received no loan.  When Ms Byckovova attempted to seek redress from First Dutch Securities it had dissolved and changed to a new company, Manufacturers Fidelity and Guaranty Co Ltd, a company controlled by the applicant.

9                     Belgian investigation commenced into suspicious banking transactions on the Belgian accounts of the applicant and his associates in late October 1998.  On 9 November 1998 the Prosecutor for Antwerp placed freezing orders over the Belgian Bank Brussell Lambert accounts of the applicant, his associates and companies, for suspected money laundering.  The applicant disappeared from Belgium after this date.  Several invitations were issued to attend an interview with Belgian authorities in relation to this investigation, first, to Ilonka Schutte, the applicant’s then-girlfriend and a suspected accomplice.  She finally attended on 9 December 1998.  Similar invitations were issued to the applicant but he could not be located in Belgium.  After the interview with Schutte, further attempts by authorities to contact her revealed that she too had disappeared from Belgium with the applicant, leaving his children behind at his Antwerp address.  His sons told police that the applicant and Schutte had left Belgium in or about December 1998 and were living in Brazil.  Allen Gottlieb and his wife also fled Belgium. 

10                  The applicant’s Australian passport E7030426 records constant travel between Belgium and London, on a weekly basis, in the several months prior to the investigation.  Following the commencement of investigations by Belgian authorities into activities of the applicant and his associates, he left Belgium.  The applicant’s passport stamp indicates that he last entered Belgium on 6 November 1998.  On 9 November 1998, the day that his accounts were ordered frozen by the prosecutors, he is recorded as entering London.  There is no further record of his returning to Belgium.

11                  The only contact between investigators and the applicant was a phone call from him on 5 January 1999 in which he claimed he had nothing to do with money laundering and that he was a legitimate banker earning commissions.  He claimed he had no bank accounts outside Belgium.  He refused request to confirm his explanation at police interview in Antwerp and refused to supply any supporting documents and claimed he was in South America and unable to attend for an interview.  This was followed by a letter from the applicant to investigators dated 20 January 1999 claiming the funds under investigation were legitimate commissions earned as a broker.

12                  The applicant’s lawyer, Mr Shoesetters, has contacted authorities only three times.  In a letter dated 6 January 2000 he invited Antwerp police to interview the applicant in Brazil.  In a letter dated 9 February 2001, a similar invitation was extended to interview him in Dubai.  This followed a telephone call from Schoesetters.  However, the applicant refused requests to return to Belgium for interview.  The applicant told Federal Police he has been a resident of Dubai for the last three years. 

13                  Arrest warrants for the applicant, Schutte and Gottlieb were issued in Antwerp, Belgium on 27 January 1998.  Interpol warrants were posted internationally in February 1999.  Schutte was arrested on an international warrant in 2002.  Allen Gottlieb is still at large.

14                  The applicant is a constant international traveller, with family and financial ties to South America and the Middle East.  His passports show constant travel between Lebanon, England, Bahamas, Brazil, Greece and United Arab Emirates.  There is no record of him returning to Belgium, despite his children remaining at school and college there until 2003.  His children now live in Brazil. 

15                  On Sunday, 31 August 2003 United Arab Emirates deported the applicant to Australia, where he was arrested at Perth Airport.

16                  Upon arrival at Perth Airport the applicant tried to avoid authorities by remaining near the transit lounge and attempting to arrange a seat on the next available flight to Brazil.  When spoken to by Australian Federal Police at the airport he said that he did this as he was trying to avoid arrest.

17                  The applicant’s girlfriend Dany Rossoni arrived with him.  They were both searched by Customs officers.  Customs officers found on them the applicant’s Australian passports, US$18 000 in cash, five mobile phones, a large amount of jewellery and several identity cards and credit cards (including many Platinum cards) in Rossoni’s name and in various aliases of the applicant, including:  Anthony Habib, Habib Badwi Tony, A Tamini, and Tony Tamini Habib.  A handwritten note of flight details from Perth to Brazil via Tokyo departing 31 August 2003 at 22.45 hours was also located.

18                  The Belgian authorities allege that their investigation reveals that the applicant also uses the following aliases:  Tony Tamini, Tamini Habib and Anthony Habib. 

19                  The Australian Embassy in United Arab Emirates was contacted by the applicant concerning his deportation, just prior to it.  He indicated to embassy staff his opposition to deportation to Australia, as he had no family in Australia, and his concern that he would be arrested upon arrival.  He indicated that his preference was to be deported to South Africa or Lebanon where he has family.  He was deported to Australia, as he is an Australian citizen. 

20                 The Belgian authorities report that in 1994 the applicant was convicted of an insurance fraud in the United States of America involving US$7 million defrauded from a number of victims, through his company Financial Services Insurance Ltd, registered in the Bahamas.  He was sentenced to 52 months imprisonment, being released in December 1996. 

background circumstances to proceedings

in proceeding w5 OF 2004

21                  The applicant’s arrest upon arrival at Perth International Airport by Australian Federal Police on Sunday, 31 August 2003 was effected pursuant to a provisional warrant issued by a magistrate under s 12(1) of the Act on 29 August 2003 at the request of the Kingdom of Belgium (‘Belgium’). 

22                  On Monday, 1 September 2003 the applicant was remanded in custody by a magistrate pursuant to s 15(2) of the Act, pending the conduct of proceedings under s 18 or s 19 of the Act and receipt of a formal Extradition Request from Belgium.  In extraditions to Belgium there is a 45 day time frame for the serving of the Request documents so the documents would have expired on 15 October 2003. 

23                  On Thursday, 9 October 2003 Belgium served a formal Extradition Request and supporting documents upon the Australian Embassy in Brussels, Belgium.  The Australian Minister for Justice and Customs signed the Notice of Receipt of Extradition Request under s 16(1) of the Act on Friday, 10 October 2003.

24                  The Extradition Request received from Belgium pursuant to an arrest warrant issued in Belgium on 5 September 2003 was for the offence of fraud, which is contrary to art 496 of the Belgian Penal Code.  Under art 496, fraud is punishable by a maximum penalty of imprisonment for up to 5 years and a fine up to a maximum of 3000 Euros.  The provisional arrest warrant issued on 29 August 2003 was for an offence of money laundering under art 505 of the Belgian Criminal Code.  Both charges arose from the same investigation.

25                  On Tuesday, 14 October 2003 the applicant was arrested at Hakea remand prison pursuant to a new provisional arrest warrant issued by Magistrate Packington (the third respondent in W5 of 2004), on Monday, 13 October 2003 under s 12(1) of the Act in respect of the extradition offence of fraud.  On 15 October 2003 the applicant was remanded in custody by the Magistrate under the fraud extradition matter pursuant to s 15(2) of the Act, pending the conduct of proceedings under s 18 or 19 of the Act.  The Magistrate also ordered that the applicant be released from custody in respect of the money-laundering extradition matter as no formal Extradition Request had been served by Belgium for that matter by the required time.

26                  On 21 January 2004 an application was filed in this Court on behalf of the applicant seeking prerogative relief and review, pursuant to s 39B of the Judiciary Act 1903 (Cth), in respect of the decisions of the Minister for Justice and Customs made under s 16 of the Act and of Magistrate Packington made under s 12 of the Act, these having been based on the Belgium warrant of 5 September 2003, which is claimed not to be a valid warrant for the purpose of extradition.  The applicant also challenges his continued detention under the first provisional arrest warrant after an extradition request had been made for the offence of fraud as being an abuse of process.

in proceeding w36 of 2004

27                  On 2 February 2004 in the Perth Court of Petty Sessions, Magistrate Cicchini (the second respondent in proceeding W36 of 2004), heard proceedings between Belgium, the first respondent, and the applicant, pursuant to s 19 of the Act.  On that same date Magistrate Cicchini determined that the applicant is eligible for surrender to Belgium in relation to an extradition offence of fraud and committed the applicant to Hakea Prison under s 19(9) of the Act, to await the Attorney-General’s decision on surrender under s 22 of the Act.

28                  The application on behalf of the applicant seeking review of the Magistrate’s decision pursuant to s 21 of the Act was filed in this Court on 13 February 2004. 

evidence

29                  The same evidentiary base is relied upon in both proceedings.

30                  In proceeding W5 of 2004 there are two affidavits from the applicant; three affidavits of his solicitor; two further solicitors’ affidavits attaching correspondence advice from a Belgian expert; and two affidavits of the Belgian expert.  In proceeding W36 of 2004 three affidavits by the applicant’s solicitors are filed.

31                  In the absence of objection from any of the respondents, leave is given to the applicant to rely on the two solicitors’ affidavits filed subsequent to the hearing.

special circumstances

nature of the offence

32                  In Cabal at 191, at [61] reference was made to ‘the nature and extent of the extradition charges’ as a factor against which to determine whether the circumstances are special.  Likewise, at 190, at [60], the Court referred to the typical extraditee being a person who has fled from another country after committing ‘a serious crime’.  Here it is said that the applicant did not flee and that his crime is not a serious crime:  see also Timar v Republic of Hungary [1999] FCA 691. 

33                  The offence of fraud per se is not a ‘special circumstance’.  Nevertheless, the amount in issue on that charge is a relevant circumstance to be taken into account with other matters in determining whether the applicant has discharged the onus of establishing special circumstances. 

34                  In Cabal reference was made at 189, at [56] to consideration given in Matter of Extradition of Morales (1995) 906 F Supp 1368 to the defendant’s ability to make restitution for the crime in relation to which extradition is sought.  In the affidavit of the applicant he deposes that he has a bank account in the amount of US$720 000 which has been frozen since October 1998.  It is said that as a term of his bail he is able and prepared to pay an amount equivalent to US$35 000 into Court with a direction that it be paid to Belgium in the event he fails to appear in accordance with the terms of his bail at any stage.  This would be in addition to any requirement for surety.  As in Morales,this is a circumstance to be taken into account in combination with other circumstances to arrive at a judgement of whether the applicant has established special circumstances. 

time served awaiting extradition

35                  For the applicant the submission is made that he has been effectively in custody since 23 June 2003.  Given that the Federal Court proceedings will probably not be heard until July 2004 and may not be decided until sometime later, it is said that the time spent in custody constitutes a special circumstance.

36                  This submission is supported by reference to the further submission that the applicant has spent more time incarcerated in an Australian prison without being convicted of any offence than he would if returned to Belgium and was convicted and sentenced to imprisonment.  That submission is made on the basis of expert advice and the affidavit evidence that he would be likely to receive a sentence of imprisonment for a period of between 12 to 18 months if convicted in Belgium.  There is also expert evidence that a prisoner sentenced to that term of imprisonment with no prior Belgium criminal record can be released from prison after having served one third of the head sentence of imprisonment.  The applicant does not have any prior record in Belgium. 

37                  Further, it is said that under Belgium criminal law time spent in detention in a foreign country will be treated as time already served for a sentence imposed in relation to the charge on which the person is detained.  The applicant has been detained in Australia since 31 August 2003.  His time of detention in Australia is in addition to ten weeks detention in Abu Dhabi from 23 June 2003 prior to being deported to Australia. 

38                  The affidavit of the applicant filed on 30 March 2004 attaches the opinion of the Belgium expert that as a consequence of time served abroad under a demand of extradition having to be taken into account for final sentencing purposes, the applicant would not have to serve any effective penalty of imprisonment in Belgium if he was convicted for the offence the subject of the extradition.  That is the applicant’s case.  Furthermore, his opinion is that he would be likely to be sentenced to a penalty of imprisonment not exceeding 18 months and be subject to reprieve in the manner indicated.

39                  In the course of their reasons in Cabal (at 193, at [66]) members of the High Court addressed the issue of delay.  There it was said that ‘as a general proposition’ it could not be accepted that the amount of time spent in custody is a special circumstance.  It was said that whether it does so depends on the facts of the particular case.  It is said that if the extraditing country has prosecuted the proceedings without undue delay it is unlikely the length of delay would itself constitute special circumstances.  This, it was said, was particularly the case when the charges are numerous and complex.  The Court said ‘delay will constitute special circumstances only when it is outside what could be regarded as the normal range for offences of the type and complexity the subject of the proceedings’. 

40                  There has been no unusual delay in the Court of Petty Sessions.  The first respondent served its Extradition Request within the required period by 15 October 2003.  The s 19 proceedings were completed on 2 February 2004.  The delay in part results from the choice by the applicant to exercise his rights of review which necessarily prolongs the extradition process and contributes to delay.

41                  Nevertheless, in my opinion the time here served or to be served awaiting extradition is outside what could be regarded as the normal range for offences of the type and the charges the subject of the proceedings are not of particular complexity.  In those circumstances here, the delay constitutes a special circumstance. 

Prospects of success

42                  It will be recalled that in Cabal at 192, at [62] it was said that the defendant ‘ordinarily’ will need to show that the application for review has strong prospects of success as well as special circumstances and absence of risk of flight.  Here the contentions for the applicant focus on the use of the word ‘ordinarily’ and it is submitted that the choice of that word leaves open the possibility that special circumstances can be established by other aspects. 

Proceeding W5 of 2004

43                  The grounds for the challenge to the validity of the applicant’s arrest and detention in Australia and of the s 16 notice issued by the Attorney-General in this proceeding are twofold.

44                  First, it will be contended that the warrant issued by Belgium is not a valid warrant for the purposes of the Act, in that it was issued for the purpose of interrogation of the applicant, rather than for his prosecution.  The warrant itself refers to a wish to interrogate.  The applicant has not to date been interrogated by the Belgium authorities. 

45                  It will be argued that a warrant is valid for the purposes of the Act only where it is for the purpose of prosecution rather than, for example, for interrogation.  In the relevant extradition treaty, extradition is available only where a person is wanted for prosecution or for the imposition or enforcement of a sentence in the requesting state:  Extradition (Kingdom of Belgium) Regulations, Sch – Treaty on Extradition Between Australia and the Kingdom of Belgium Art 1.  Also, under s 6 of the Act, a person is an extraditable person only where the person is ‘accused’ of committing an extradition offence.  In Director of Public Prosecutions of the Commonwealth v Kainhofer (1995) 185 CLR 528 at 558 – 559, Gummow J stated that the term ‘accused’ ‘would not readily be understood as including suspicion by prosecuting authorities but without prosecution’.  Gummow J added (at 564):

‘It would be an unlikely construction of these provisions that the references therein to person accused of an offence … were treated as extending to cases merely where inquiries were on foot to decide whether to institute a prosecution.’

That is the very process that is indicated in the present case. 

46                  However, as the submissions for the respondents point out Belgium’s criminal procedure is based upon an inquisitorial system as opposed to the adversarial system in Australia and other common law countries.  As is clear from the instructions of Erik Verbert in his letter of 23 December 2003 all criminal prosecutions in Belgium commence by way of bringing a suspect before an interrogating judge for interrogation, as a preliminary to prosecution. 

47                  Also it is said for the respondents that in Kainhofer Gummow J also stated that all the relevant materials, including the extradition request, should be considered in interpreting whether the intention of the requesting authorities, in issuing the subject warrant, was to invoke the operation of the criminal law by taking the steps required to initiate prosecution (at 564 and 569).

48                  Furthermore it is the case that the extradition request served on 9 October 2003 states that the applicant is ‘sought for prosecution’.

49                  Second, it will be argued the applicant was illegally detained, at least between 9 and 13 October 2003, in that, to the knowledge of the Australian authorities and Belgium, he was detained pursuant to a warrant in relation to which there was no intention to proceed.  In relation to illegality in this context, giving rise to an abuse of process, see for example, Levinge v Director of Custodial Services (1987) 9 NSWLR 546 at 556 – 557 and Re Ditfort; Ex parte Deputy Commissioner of Taxation (NSW) (1988) 19 FCR 347 at 367.  In a decision of the High Court of Malaysia in Tan Hock Chan v Menteri Dalam Negeri [1994] 1 MLJ 60, it was held that an abuse of process was indicated in circumstances where there was no longer any intention to proceed with the warrant and detention was continued simply in order to allow time for the preparation of alternative documentation.  It will be submitted that the power of the Attorney-General under s 17(1) of the Act must be read in the context of a valid warrant in relation to which it is intended to proceed and not interpreted as allowing arbitrary detention in circumstances where it is known that the warrant that has justified the arrest is obsolete.

50                  For the respondents it is submitted that no abuse of process can be demonstrated by the proceedings conducted in the Perth Court of Petty Sessions.  It will be submitted that the applicant was lawfully detained under the s 12 warrant on 29 August 2003, issued for a valid extradition offence.  There is no provision in either the Act or the Extradition (Kingdom of Belgium) Regulations requiring that the offence in the Formal Request for Extradition be exactly the same as the offence in the request for provisional arrest.  The offences under those requests must be ‘an extradition offence’. 

51                  Therefore it is said it remained open for Belgium to submit a Formal Request for Extradition for the money laundering offence subject to the s 12 warrant of 29 August up until 15 October 2003, and with the court’s leave, beyond that date.  This is so notwithstanding the Formal Request submitted in respect of the fraud offence. 

52                  It is apparent both limbs of the case for the applicant in this proceeding are arguable.  However, I am not satisfied, short of full argument, that the applicant’s case is properly to be characterised as ‘strong’.

Proceeding W36 of 2004

53                  In this proceeding the grounds of challenge to the Magistrate’s determination are that:

(i)                  a warrant could not be received because it was not accompanied by a valid English translation.  In this regard, the first page of the purported translation twice referred to a magistrate ‘M Vyncke’ where the original warrant refers to magistrate ‘B de Hous’.  This discrepancy raises grave doubts as to whether the translation is in fact a translation of the same warrant or a warrant relating to another charge or charges;

(ii)                the documents and translations have not properly been authenticated or otherwise proved in accordance with the Act;

(iii)               the statement setting out the conduct constituting the offence pursuant to s 19(3)(c)(ii) was not valid as it was not clear whether the offence described was the offence of which extradition was sought;

(iv)              as a result of the deficiency in the statement pursuant to s 19(3)(c)(ii), the magistrate could not be satisfied that double criminality was established.

54                  The first respondent submits in relation to these issues:

‘(a)      translation of Belgian Arrest Warrant

At the section 19 hearing on 2 February 2003 the Second Respondent found that the English translation of the Belgian warrant of 5 September 2003 was a valid translation.  He found that the discrepancy in the name of the Magistrate appearing at the top of the two documents was an error on the English version but that other identifiable features of the two warrants were otherwise consistent and indicated them to be different language versions of the same document.

That finding was open to the Second Respondent.  It cannot be assumed that the review court, after hearing full argument on the matter, will make a finding contrary to that of the Second Respondent.

(b)       Supporting Documents not Duly Authenticated

The Second Respondent found that the documents submitted in Belgium’s Formal Request for Extradition were duly authenticated in accordance with s 19(7) of the Act and were therefore admissible.

The bundle of documents as a whole, bound by a ribbon through and joining them all, was certified by Erik Verbert of the Judicial Cooperation Unit, Directorate General Legislation, Fundamental Rights and Liberties Federal Public Service, Justice, of the Kingdom of Belgium, “an officer in and of the Kingdom of Belgium”.  This certificate appears as the first page at the top of the bundle and purports to be signed by Mr Verbert.  Each of the documents is therefore certified in accordance with section 19(7)(a) of the Act.

No form of certification is provided for or required by the Act.  Each document need not be individually certified where the form of certificate sufficiently identifies documents to which it relates:  Oskar v Government of Australia [1988] 1 All ER 183, esp. 190.  Here the words of certification in combination with the binding of the certificate to the documents by a sealed ribbon identify all of the bound documents as being the documents to which the certification relates.  The ribbon is affixed to the back of the bundle by tape across which has been placed a seal, translated as “Federal Public Service Foreign Affairs Foreign Trade and Development Cooperation”, an official and public seal of Belgium. 

The certificate by Erik Verbert at the top of the bundle is impressed with a sealing bearing a coat of arms and the words “Service Public Federal – Justice”.  Above the seal is a translation of it as “Federal Public Service – Justice”. 

The bound bundle of documents as a whole is sealed by this seal, which Erik Verbert has further certified to be an official and public seal of Belgium. 

Each document within the bundle is therefore sealed in accordance with section 19(7)(a) of the Act.  It is not necessary that each document be individually sealed where, as here, a bound set of documents has been sealed, with a seal that explicitly purports to seal “all of the documents attached to this certificate”:  Cabal v United Mexcan States (No 3) (2000) 186 ALR 188 at 255:  “The sealing requirement in s 19(7) can be met by the affixing of a seal to the bundle”.

The finding made was open to the Second Respondent.  It cannot be assumed that the review court, after hearing full argument on the matter, will make a finding contrary to that of the Second Respondent.

(c)        section 19(3)(c)(ii) Statement of Conduct

The Second Respondent found that the statement of conduct submitted by Belgium sufficiently identified the conduct alleged against the Applicant as constituting the extradition offence of fraud and was clearly set out under a sub-heading “The offence:  Fraud”.  On that basis the statement was validly in accordance with section 19(3)(c)(ii) of the Act.

That finding was open to the Second Respondent.  It cannot be assumed that the review court, after hearing full argument on the matter, will make a finding contrary to that of the Second Respondent.

(d)       Dual Criminality

The Second Respondent found that the conduct alleged against the Applicant in the section 19(3)(c)(ii) Statement of Conduct and particularly under the sub-heading “The offence: Fraud” was sufficient to satisfy the elements of an offence of fraud under section 409(1) of the WA Criminal Code and therefore dual criminality was established.

That finding was open to the Second Respondent.  It cannot be assumed that the review court, after hearing full argument on the matter, will make a finding contrary to that of the Second Respondent.’

55                  In the light of the submissions for Belgium I am not presently able to find the applicant’s case in this proceeding to be ‘strong’.

risk of flight

56                  It is submitted for the applicant that there is no risk of flight for the following reasons:

(i)                  At no time did the applicant flee justice.  To the contrary he endeavoured to make his whereabouts known to the authorities and to make himself available for questioning, and he travelled to Australia with the expectation that he would be arrested. 

(ii)                The potential punishment facing the applicant, even if convicted, is not great.  The applicant has already spent nearly 7 months in custody, which is a significant proportion of any likely penalty in Belgium and probably greater than any period of incarceration he would be subject to in Belgium as time spent in custody outside of Belgium is treated as time already served in Belgium.  Because of the principle of ‘speciality’ (as to which, see s 22(3)(d) and (4)(d) of the Act), the applicant cannot be tried for any other offence following any surrender to Belgium.  The principle is one of long standing and is a cornerstone of international extradition arrangements:  see, for example, Zoeller v Attorney-General (Cth) (1987) 16 FCR 153 at 160ff, Barton v Commonwealth (1974) 131 CLR 477 at 438 and 500.

(iii)               If the applicant has already effectively served any prospective term of imprisonment, although without conviction, there does not exist an incentive to flee on a rational cost/benefit analysis:  see Commonwealth Director of Public Prosecutions v Lijo [2002] WASC 154.

(iv)              The risk of forfeiting the considerable sum of money belonging to the applicant that has been frozen by the authorities in Belgium.  The applicant has stated that he would be prepared to forfeit that sum were he to breach any conditions of bail now imposed. 

(v)                The applicant is also prepared to pay a considerable sum of money by way of bond as a condition of bail.

57                  For the first respondent it is submitted there is a real risk of flight, based on the following factors:

• The applicant has made effort to avoid investigation and arrest in Belgium.  There is no further record of his returning to Belgium following the freezing of his assets despite his family ties there.
• He is aware of the investigation and the warrant for his arrest.  He has repeatedly refused to return to Belgium to be interviewed, notwithstanding the substantial assets frozen there, he claims without basis.
• He feared arrest in Australia in respect of the Belgium investigation, tried to avoid coming to Australia and attempted to depart Australia to Brazil at his first opportunity upon arrival here.
• The applicant has access to substantial funds in bank accounts around the world and has many contacts internationally.  His associate Allen Gottlieb also has access to funds.  The applicant’s travelling companion has access to cash and credit cards in his name.
• He is known to use aliases.
• He faces the high probability of further incarceration upon return to Belgium.  Belgian authorities advise that they consider the applicant to be a high flight risk and that if he is returned to Belgium, authorities there would strongly oppose bail.

58                  Also relevant to the question of flight risk is the citizenship of the applicant.  He is an Australian citizen.  While he has not lived in Australia for some years the submissions for the applicant stress that he is not in Australia as a fugitive from the first respondent, but came to Australia under some duress from the Middle East and has advised the Belgian authorities of his whereabouts. 

59                  For the respondent it is said that although a citizen of Australia, the applicant is not ordinarily resident in Australia.  He has not lived in Australia since he was 10 years old and has not visited Australia since March 1998.  The applicant was brought here involuntarily under deportation order from his last usual place of residence, United Arab Emirates, having opposed coming to Australia as he feared arrest here.  Further it is submitted the applicant’s closest family live in Brazil.  He told Australian Federal Police that his only family in Australia are some cousins, uncles and an aunt in New South Wales.  He has no ties to Western Australia.

60                  The applicant’s circumstances, reflected in the submissions for the respondent, do not satisfy me there is no risk of flight.  This is so even given the sums of money the applicant is prepared to put at risk.  Apart from that, all other circumstances support an inference of the existence of a risk. 

conclusion

61                  It follows from the foregoing reasons that I do not think the case for the applicant establishes ‘special circumstances’.  Accordingly, his applications for bail in each of the proceedings should be refused.  It is therefore unnecessary to determine whether the Court would have power to grant bail in proceeding W5 of 2004 pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth).

62                  However, I am concerned about the disparity between the time the applicant is likely to be in detention here and his likely sentence of imprisonment (if any) if convicted of the offence for which his extradition is sought.  Accordingly, I will endeavour to obtain for the applicant an earlier hearing date than that presently available and before another judge who has not been required to express a preliminary opinion on the strength of the applicant’s cases.

Associate:

Dated:              23 April 2004