FEDERAL COURT OF AUSTRALIA

O’Donoghue v Minister for Immigration and Citizenship [2010] FCA 1486

THE COURT ORDERS THAT:

1.    The application for bail is dismissed.

2.    The appellant to pay the costs of the first respondent to be taxed or agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1    The appellant (Mr O’Donoghue) appeals from the judgment of a Federal Magistrate given on 27 July 2010 (O'Donoghue v Minister for Immigration & Anor (No.4) [2010] FMCA 513). The grounds of appeal are that the learned Federal Magistrate erred in law in holding that the first respondent (the Minister) was not estopped from determining Mr O’Donoghue’s visa application adversely before the final determination of Mr O’Donoghue’s extradition proceedings.

2    Mr O’Donoghue was committed to custody in April last year pursuant to s 19(9) of the Extradition Act 1988 (Cth) (the Extradition Act). Bail was refused by Barker J.

3    Mr O’Donoghue this week argued a further urgent bail application so that he could be released from his present custody in Hakea Prison in time to enjoy Christmas with his family.

4    The urgency of the request was said to be based upon new material recently discovered following a freedom of information application. That material revealed, according to Mr O’Donoghue, that the original s 16 Notice of Receipt of Extradition Request signed by the former Attorney-General, the Honourable Phillip Ruddock MP, on 5 January 2005 was invalid. The grounds of the suggested invalidity were that the Certificate purported to state, as it was required to do, that an Extradition Request (the Request) had been received from Ireland, whereas in fact, it was argued, it had not. The only request received from Ireland, according to Mr O’Donoghue, was a subsequent document dated 24 March 2005, signed by Mr Barry Donoghue, Deputy Director of Public Prosecutions of the office of the Director of Public Prosecutions in Dublin, being a statement pursuant to the Treaty on Extradition between Ireland and Australia (the Treaty) which stated as follows:

1.    I, Barry Donoghue, am the Deputy Director of Public Prosecutions, a Solicitor duly enrolled to practice as such in Ireland and a Professional Officer in the Office of the Director of Public Prosecutions, which, by virtue of the Prosecution of Offences Act 1974, is the office in charge of the prosecution of crime in Ireland.

2.    The extradition of Vincent O’Donoghue, formally of 161 Beaumont Road, Dublin 9, born on 23 October 1951, is sought for him to face prosecution for eight counts of the offence of fraudulent conversion and also for eight counts of the offence of obtaining property by false pretences.

5    Mr O’Donoghue says that the Request coming after the s 16 Certificate means that the s 16 Certificate is invalid. This, he says, supports the inference that the entire process of extraditing him from Australia to Ireland was conducted with such indecent haste that it was, in essence, tainted with invalidity.

Basis of the bail application

6    There are a number of difficulties with the bail application pursued by Mr O’Donoghue. The first is that the bail application purported to be an application under s 21(6)(f)(iv) of the Extradition Act. Yet the proceedings for judicial review of the Federal Magistrate’s decision are based on an entirely different jurisdictional premise.

7    Mr Macliver appeared for the Minister and, in effect, for the Commonwealth. He correctly made the following submissions:

…

    The Attorney-General of the Commonwealth of Australia has not yet made a determination pursuant to subsection 22(2) of the Extradition Act as to whether the appellant is to be surrendered in relation to the extradition offences in respect of which Magistrate Calder determined under s 19(2) of the Extradition Act that the appellant was an eligible person for extradition to Ireland...

…

    The appellant has remained in custody since 3 April 2009 pending the hearing and determination of his application for review of Magistrate Calder's decision and subsequent appeal proceedings and an application for special leave to appeal to the High Court and, following the refusal of his special leave application by the High Court on 17 June 2010, pending a determination by the Attorney-General under s 22(2) of the Extradition Act.

…

    As the appellant is not being detained in immigration detention as a result of the decision refusing to grant him a … visa, but rather is being detained following the committal order made by Magistrate Calder on 3 April 2009 under s 19(9) of the Extradition Act, there is no connection between these appeal proceedings and the appellant's application for bail under … s 21(6)(f)(iv) of the Extradition Act. It follows that the court has no power in these proceedings to hear and determine the appellant's application for bail in relation to his custody under the Extradition Act.

…

    Further, and in any event, even if the appellant was to bring proceedings under the Extradition Act, or his notice of motion was treated as an application under that Act rather than in these proceedings, the Court would not be able to grant bail pursuant to s 21(6)(f)(iv) of the Extradition Act.

    Section 21 of the Extradition Act provides for applications for review of an order of a magistrate made under s 19(9) or (10) of the Extradition Act, and for appeals from a review decision. Relevantly, s 21(6) provides that:

"(6)    Where the person of 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:

(d)    the court to which the application or appeal is made shall have regard only to the material that was before the magistrate;

(e)    if, because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has been released - the court to which the application or appeal is made may order the arrest of the person;

(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; or

(ii)    the person has been arrested under an order made under paragraph (e);

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;     [emphasis added]

(g)    if the court to which the application or appeal is made determines that the person is eligible for surrender, within the meaning of subsection 19(2), in relation to an extradition offence or extradition offences - the court shall include in its judgment on the review or appeal a statement to that effect specifying the offence or offences.

    The effect of section 21 of the Extradition Act, and in particular paragraph 21(6)(f)(iv), is that if a person makes an application under s 21(1), or appeals under s 21(3), or appeals to the High Court against an order made on such an appeal, the court to which the application or appeal is made may, if there are special circumstances justifying such a course, order the release on bail of the person "until the review has been conducted or the appeal has been heard".

    Here, the appellant's application under s 21(1) of the Extradition Act has been conducted, his appeal under subsection 21(3) has been heard, and his application to the High Court for leave to appeal against the appeal decision of the Full Court of the Federal Court was refused.

    In the circumstances, there is simply no basis upon which this Court could now make an order releasing the appellant on bail pursuant to s 21(6)(f)(iv) of the Extradition Act. The period in which bail may have been granted by a court under s 21(6)(f)(iv) ended with the High Court's refusal of special leave to appeal on 17 June 2010.

    Even if bail was to be granted under s 21(6)(f)(iv) of the Extradition Act, that would not result in the appellant's release from custody. As the appellant is an unlawful non-citizen he would be required to be detained by officers pursuant to s 189(1) of the Migration Act.

…    (emphasis added)

8    At the hearing of the application for bail, Mr O’Donoghue was assisted (at the last minute) by Mr McIntyre SC. I am grateful to Mr McIntyre for his assistance. I raised with Mr O’Donoghue and with Mr McIntyre whether the incidental power contained in s 23 of the Federal Court of Australia Act 1976 (Cth) may be availed of if there were an application or a sustainable foreshadowed application under s 39B of the Judiciary Act 1903 (Cth), rather than under the Extradition Act.

9    I drew attention to my analysis in Zentai v Honourable Brendan O’Connor [2009] FCA 1597 (at [22]-[54]). In that decision, the alternative ground of power was discussed in various decisions there cited.

10    In particular, relevant for consideration were the following parts of that decision:

JURISDICTION AND POWER

22    The jurisdiction to review the determination made by the Minister under s 22 of the Extradition Act arises under s 39B of the Judiciary Act. That jurisdiction having been invoked, the court may, under s 23 FCA in respect of matters in which it has jurisdiction, make such orders including interlocutory orders as it deems appropriate. This bail application is not made (nor can it be) under the Extradition Act. These proceedings relate to but are not dependent upon the specific provisions of that Act.

23    It is common ground that special circumstances need to be shown together with, in effect, no risk of flight before bail should be granted in extradition proceedings, particularly at an advanced stage of those proceedings. Before turning to those considerations, it is necessary to consider whether or not in the context of an application which is based on s 23 FCA, the court has jurisdiction and power under the incidental power provisions of s 23 FCA to grant bail on an application such as the present.

24    The current case may be contrasted with Peniche v Vanstone (1999) 96 FCR 38 and Chan v Minister for Justice and Customs (2001) 108 FCR 65 where Kenny J and Stone J respectively declined to grant bail on the basis that the primary relief sought in those cases would not, in any event, have brought about the release of the applicant in those cases from custody. The primary relief (as amended) in the present case is somewhat different. In Peniche, Kenny J (at 47) considered (obiter) that there was much to be said for the view that the provisions for remand on bail in the Extradition Act were not an exclusive code. In Peniche, at p 47, Kenny J expressed the view (obiter) that those provisions:

do not preclude the power of the Court to entertain an application for an interlocutory injunction restraining a proper respondent from detaining an extraditee in custody in cases where the validity of decisions to arrest, or to remand in custody, or like decisions are the subject of challenge in judicial review proceedings: see, for example, Hempel v Moore (1987) 13 FCR 480; 70 ALR 714; Prevato v Governor, Metropolitan Remand Centre (1986) 8 FCR 358, and Elmi v Minister for Immigration and Ethnic Affairs (1988) 17 ALD 471 at 472-473. As I have sought to show, that is not the situation in these proceedings.

25    In Peniche as in Chan, the ultimate relief even if granted would not have had the effect of releasing the applicant from custody. On the other hand, in the present application, Mr Zentai’s challenge includes two grounds which go directly to whether he is an extraditable person. If he were to succeed on either of those grounds, it would not be open to the Minister to make a further determination under s 22 of the Extradition Act that Mr Zentai is to be surrendered in relation to the specified extradition offence. The application (as now amended) does seek appropriate orders which would result in Mr Zentai’s ultimate release were the application to succeed and subject to further appeal.

26    The two grounds of challenge which go to the heart of the issue as to whether he is an extraditable person are, first, that Mr Zentai is not ‘accused’ of an extradition offence as the extradition is sought only for the purpose of preliminary investigation.

27    The second challenge is that Mr Zentai is not an extraditable person because the extradition offence in relation to which the Magistrate determined he was eligible for surrender under s 19(9) of the Extradition Act was not an offence in the Republic of Hungary at the time of the acts or omissions constituting the offence. This argument relies on Art 2, para 5 of the Treaty on Extradition between Australia and the Republic of Hungary 1995 (the Extradition Treaty). Accordingly, the present circumstances are distinguishable from the decisions in Chan and Peniche where the ultimate success of the outcome of those applications would not affect the warrant under s 19 of the Extradition Act under which the applicant was held in each instance.

THE ARGUMENT IN SUPPORT OF BAIL

28    In United Mexican States v Cabal (2001) 209 CLR 165 the High Court of Australia held it did not have the power to grant bail under the Extradition Act until special leave to appeal was granted. It did have an incidental power to its appellate jurisdiction (conferred by s 73 of the Constitution).

29    That power included doing all that was necessary to effectuate the grant of appellate jurisdiction including the power to stay orders that were or might become the subject of its appellate jurisdiction and to grant bail so as to make the stay effective.

30    However, it held that bail should only be granted in extradition cases when two conditions were fulfilled. The first condition was that the circumstances of the case must be special in the sense that they were different from those that persons facing extradition would ordinarily endure when regard was had to the nature and extent of the extradition charges. The second was that there be an absence of any real risk of flight considered independently of the effect of any proposed bail conditions. It was held that where special circumstances were proven and there was no real risk of flight, bail may be granted unless the applicant posed a risk to the community or a particular individual.

31    However, the court did emphasise that one of the most important factors was the stage which the extradition proceedings have reached. As the case proceeds through the legal system, the chance of obtaining bail reduces despite the existence of special circumstances. Something ‘exceptional’ would need to be shown before bail would be granted by the High Court in extradition proceedings before a grant of special leave to appeal.

32    The current circumstances are slightly different. Although there has been a deal of preceding litigation, it is a different jurisdictional basis and it is the incidental power of s 23 FCA which falls now for consideration. The power is to be exercised (if at all) by a single judge.

33    Nevertheless, even though there are some stages beyond the present application for review, there is little doubt that the litigation viewed as a whole has advanced to a considerable degree.

34    That said, the observations made by the High Court as to the need for ‘exceptional circumstances’ are expressly and inextricably linked to the high likelihood, indeed ‘presumption’, of flight when the only remaining legal avenue is a special leave application (and perhaps an appeal if special leave is granted) (Cabal at [64]).

35    Not only is the current application brought at an earlier stage (albeit that the litigation has ensued for some time) but for reasons indicated below, the flight risk is virtually non-existent.

SPECIAL OR EXCEPTIONAL CIRCUMSTANCES

36    Both in Cabal and in State Courts (Mercanti v Western Australia [2005] WASCA 254 at [17] and Lim v Gregson [1989] WAR 1 (at 13)) in the context of bail, the adjectives ‘special’ and ‘exceptional’ where applied to ‘circumstances’ are used interchangeably.

11    There are no proceedings before the Court at present which enliven any power to grant Mr O’Donoghue bail. Mr McIntyre SC, however, indicated that he would, within a little over a 24 hour period attempt to assist Mr O’Donoghue and the Court by providing a basis upon which there might be a suitable proceeding as a vehicle for a bail application. The proceeding foreshadowed by Mr McIntyre was a possible challenge to the period of time in which Mr O’Donoghue has awaited consideration by the Minister for Home Affairs of the Minister’s exercise of discretion in relation to granting or refusing a s 22 Certificate. This basis would involve an allegation of non-compliance with s 22(2) of the Extradition Act requiring that the Minister act ‘as soon as reasonably practicable in all the circumstances’.

12    One of the several difficulties in relation to this ground (raised first only in the course of the hearing conducted two days before Christmas eve with bail being sought for Christmas), was that the state of evidence on which any view could be formed was very limited.

13    The other basis foreshadowed by Mr O’Donoghue was a prospective challenge to the s 22 Certificate on the basis that the s 16 Certificate could not possibly have been given due to the Request having post-dated the s 16 Certificate. Again, there were evidentiary difficulties, amongst others, with these matters being raised at the 24th hour in reaching any conclusion as to the strength of the prospective case.

14    Nevertheless, provision was made for further submissions on those grounds and foreshadowed applications to be urgently raised.

THE FRESH SUBMISSIONS FOR MR O’DONOGHUE

15    Mr O’Donoghue, through counsel, produced yesterday a minute of an application for constitutional writs under s 39B of the Judiciary Act relief that would support the bail application. In submissions in support of the relief and the application he argues, in substance, as follows:

Mandamus

…

    The Applicant appealed the Magistrate’s decision to the Federal Court and the High Court. That process was completed on 17 June 2010: O’Donoghue v Ireland [2010] HCASL 152. Those circumstances justified the Minister not progressing the performance of his statutory obligation under s 22(2) until 17 June 2010. The Applicant is justified in having an expectation that the First Respondent or the Second Respondent would have exercise the statutory power to make that determination by now and it is reasonable for the Applicant to seek an order directing the relevant Minister to make the decision forthwith.

    There is a serious question to be tried as to whether the statutory obligation under section 22(2) has been complied with, sufficient to grant the interlocutory relief sought: Castlemaine Toohey Ltd v State of South Australia (1986) 161 CLR 148.

Certiorari

    The Court has jurisdiction under section 39B(1A) of the Judiciary Act 1903 (Cth) in a matter arising under section 75 (iii) of the Constitution (Cth), in which the Commonwealth is being sued, and under s 75(v), of the Constitution (Cth), incidentally to its power to grant a writ of mandamus, prohibition or injunction against an officer of the Commonwealth, to grant a writ of Certiorari: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 clr (sic-CLR) 467

    A valid notice under subsection 16(1) of the Extradition Act 1988 (Cth) in writing in statutory form was a pre-requisite to the exercise of power under section 19(9): section 19(1)(b) of the Extradition Act 1988 (Cth).

    On the face of the documentary evidence there is serious question to be tried as to whether the request which the Attorney-General must receive in order to give the notice under subsection 16(1) was made before the notice was created on 5 January 2005, and therefore whether it was a valid notice.

    9.    If the notice under subsection 16(1) is not valid, then the order of [the] Magistrate … on 3 April 2009 that the Applicant be committed to prison, which cannot be made without such a notice being received is also without a sufficient jurisdictional basis: see subsection 19(1)(b) of the Extradition Act 1988 (Cth).

    The Court has jurisdiction pursuant to section 23 of the Federal Court Act 1976 (Cth) to make an order that the Applicant be released from custody as an incident of its jurisdiction to grant prerogative relief: Zentai v Honourable Brendan O’Connor [2009] FCA 1579 at [22].

…

    The Court, in determining the merits of the interlocutory application to be released, should note that the refusal of bail by his Honour Justice Barker on 6 April 2009 was a decision based on the paucity of evidence then available before, rather than an assessment of the full merits of the matter.

    The Court should note the submissions made in the course of the hearing that the Applicant has previously been on bail for 5 years without showing any signs that he was a flight risk, and the reference to the finding of Magistrate Brown in 2004 in that regard …, which was noted by Justice French when determining the appeal against Magistrate Brown’s decision.

    In addition to the matters going to the special circumstances which the Court has received evidence and submissions of from the Applicant at the hearing of this matter, the Applicant wishes it to be pointed out that the serious difficulties for him of remaining in prison include:

(a)    He has titanium implants in his jaw which are falling out and attempts over the last 6 months to arrange dental treatment ofr (sic-of) them while in custody have so far been unsuccessful;

(b)    He has a growth in his jaw which has the potential to become malignant and which has been the subject of medical advice that it be removed and attempts to arrange that over the past 12 months while in custody have been unsuccessful;

(c)    The law library facilities available to him in prison are extremely limited, out of date and inadequate to assist him in preparing for the legal proceedings in which he is engaged.

THE SUBMISSIONS IN RESPONSE BY THE COMMONWEALTH

16    Today, submissions for the Commonwealth were received in response but it is unnecessary to consider the further arguments for the Commonwealth at great detail. The Commonwealth do, correctly, make the following points.

17    Even if Mr O’Donoghue was to make an application in terms of the proposed application, insofar as such an application sought mandamus to compel the making of a determination under s 22(2) of the Extradition Act, even if that application was successful and mandamus granted, that would have no effect on his custody pursuant to the decision of Magistrate Calder on 3 April 2009. Such an application for mandamus does not seek any relief in relation to Magistrate Calder’s committal warrant issued under s 19(9)(a) of the Extradition Act, that warrant being the basis for Mr O’Donoghue’s present custody.

18    Further, and in any event, it is futile for Mr O’Donoghue to now bring a challenge to the issue of the Attorney-General’s Notice of Receipt of Extradition Request pursuant to s 16(1) of the Extradition Act, as ‘the work to be done by the issue of a Notice of Receipt of Extradition Request under s 16 is spent once the s 19 stage in the process is reached’: see Vasiljkovic v Honourable Brendan O'Connor [2010] FCA 1246 (at [80]) quoting from Brock v Minister for Home Affairs (2008) 170 FCR 434 per Lindgren and Tracey JJ at ([77]).

19    As Edmonds J observed in Vasiljkovic (at [81]), the Magistrate exercising functions under s 19 of the Extradition Act proceeds on the basis that the giving of the Attorney-General's notice under s 16 was valid (referring to Director of Public Prosecutions (Cth) v Kainhofer (1995) 105 CLR 528 (at 539) (Brennan CJ, Dawson and McCue JJ); (at 541) (Toohey J). In Brock, their Honours Lindgren and Tracey JJ stated that the Magistrate was required to satisfy herself independently that the dual criminality requirement was met, and was not required to review the Minister's having previously been satisfied that it was met for s 16 purposes, and their Honours also refer to Kainhofer (at 538-539).

20    In Peniche v Vanstone (1999) 96 FCR 38, her Honour Kenny J considered that the provisions of the Extradition Act give rise to a different situation to that of custody under the Migration Act 1958 (Cth) (at [24]). Kenny J stated that:

‘[t]he applicant's detention [under the Extradition Act] was consequential upon his remand in custody under s 15(2) which was in turn consequential upon the issue of a [provisional arrest warrant] under s 12 of the Act’ and that ‘[t]he giving of the s 16 notices did no more than remove the necessity to bring Mr Cabal before a magistrate in accordance with s 17(2) of the Act, and the need for the magistrate to decide whether he or she was satisfied that such a notice was likely to be given “within a particular period that is reasonable in all the circumstances”.’

21    Further, even if the Court was to conclude that the notice issued by the AttorneyGeneral under s 16(1) of the Extradition Act on 5 January 2005 was issued before he had received an extradition request from the Republic of Ireland, the Court would have no power to order that the committal order made by Magistrate Calder be set aside. Such an order would be inconsistent with the order made by his Honour Barker J in O'Donoghue v Ireland [2009] FCA 618 that ‘[t]he Court determines that [the appellant] is eligible for surrender, within the meaning of subs 19(2) of the Extradition Act...’, and the dismissal of the appellant's appeal against that order by the Full Court in O'Donoghue v Ireland [2009] FCAFC 184.

CONSIDERATION

22    The Court is required to form, at least, a preliminary view as to whether the grounds for review raise a serious question (United Mexican States v Cabal (2001) 209 CLR 165 (at [62])).

23    If it is apparent that the prospects of success on the main application were low, that would be a real factor to consider in the exercise of discretion as to whether or not to grant bail.

24    Given the serious nature of the reciprocal obligations owed under extradition treaties and the importance of such treaties to Australia, obviously weak or colourable claims would not attract a favourable exercise of the discretion to grant bail.

The delay argument

25    There is no evidence one way or another to enable evaluation of the issue of delay or non-compliance with s 22(2). Admittedly, a period of six months or so has passed but the Minister has had no opportunity to put on evidence as to the critical expression ‘… in all the circumstances…’ in s 22(2) of the Extradition Act. Absent that evidence, it is difficult to form any view on this topic. This application having been brought on urgently by Mr O’Donoghue on a different basis, no realistic opportunity at all has been given to the Minister to put forward such evidence as he might wish to.

The s 16 argument

26    As to the suggested invalidity of the s 16 Certificate, my view is that the statement to which Mr O’Donoghue refers is not the Request at all but rather the statement filed in support of para 2(a) of the Art V of the Treaty. I am satisfied the Request preceded the s 16 Certificate.

27    In O'Donoghue v Ireland [2009] FCA 618 the process was described by Barker J in the following paragraphs:

11    On 5 January 2005, the Hon Philip Maxwell Ruddock MP, Attorney General for the Commonwealth of Australia signed a Notice of Receipt of Extradition Request (Notice) under the Act addressed to the Magistrate before whom the person named in the Notice is brought. That Notice was issued by the Attorney General under subs 16(1) of the Act and stated that an extradition request had been received from Ireland in relation to the applicant for the following extradition offences:

•    8 counts of obtaining property by false pretences contrary to s 32(1) of the Larceny Act 1916 (Ireland).

•    8 counts of the alternative charge of fraudulent conversion contrary to s 20(1)(iv)(a) of the Larceny Act 1916 (Ireland);

12    The Extradition (Ireland) Regulations made 13 March 1989 by reg 5 provides that the Act applies in relation to Ireland subject to the Treaty on Extradition (Treaty) between Australia and Ireland done at Dublin on 2 September 1985 (being the treaty a copy of the text of which is set out in the Schedule).

13    Article V of the Treaty provides by paras 2(a), (d) and (e) that:

2    A request for extradition emanating from Ireland shall be supported:

(a)     if the person is accused, or has been convicted in his absence, of an offence by a warrant for the arrest or a copy of the warrant for the arrest of the person, a statement of each offence for which extradition is sought and a statement of the acts or omissions which are alleged against the person in respect of each offence:

(d)    in all cases, by a copy of the relevant provisions of the statute, if any, creating the offence or a statement of the relevant law as to the offence, including any law relating to the limitation of proceedings, as the case may be, and in either case a statement of the punishment that can be imposed for the offence: and

(e)    in all cases, by information or documents which will help to establish that the person whose surrender is sought is the person accused of or convicted of the offence.

14    In this case, the First Secretary of the Embassy of Ireland in Canberra, being an officer in and of Ireland, provided with the relevant request a certificate which certified that documents attached to the certificate had been prepared in support of a request by Ireland for the extradition from Australia of the applicant, an Irish citizen, in order that he may be dealt with by the Irish Courts in accordance with law.

15    The certificate itself was signed and sealed at Dublin on 12 May 2004 by a person authorised by law to authenticate the Seal of the Minister for Foreign Affairs of Ireland pursuant to the Ministers and Secretaries Act 1924 (Ireland).

16    In particular the certificate had attached documents in purported compliance with the requirements of paras 2(a), 2(d) and 2(e) of Art V of the Treaty.

17    The documents attached for the purposes of Art V para 2(a) of the Treaty included:

•    Certified copy of each arrest warrant for the applicant.

•    Statement of each offence.

•    Statement of the facts of the case.

18    The First Secretary of the Embassy of Ireland in Canberra, being an officer of Ireland, provided a further certificate and documents relevant to the extradition request. The documents attached to this certificate included a certificate of the person authorised by law to authenticate the Seal of the Minister for Foreign Affairs of Ireland dated 23 December 2004. It also included the following:

•    Statement pursuant to Art V of the Treaty on Extradition between Australia and Ireland made by a solicitor and professional officer in the Office of the Director of Public Prosecutions, Ireland.

•    Warrants for the arrest of the applicant in relation to the offences of fraudulent conversion which were attached to the statement and marked A, B, C, D, E, F, G and H.

•    Copies of further eight warrants for the arrest of the applicant in relation to the offences of obtaining property by false pretences were attached to the statement and marked I, J, K, L, M, N, O and P.

19    By further certificate of the First Secretary of the Embassy of Ireland in Canberra, being an officer of Ireland, further documents were supplied in support of the request for the extradition of the applicant by Ireland. These documents included a certificate signed by a person authorised by law to authenticate the Seal of the Minister for Foreign Affairs of Ireland, dated 3 August 2005. The documents also included a further statement pursuant to Art V of the Treaty made by the same solicitor and professional officer in the Office of the Director of Public Prosecutions in Ireland. (emphasis added)

28    From the foregoing, it can be seen that the Request is separate from the statement in support. Further, the Certificate provided with the Request certifying the existence of the Request and the various Treaty documents was prepared and signed as early as 12 May 2004 in Dublin, Ireland.

29    There is no basis to conclude that the Request was not properly made and in existence at the time of the s 16 Notice. The relevant documents were, again, produced on affidavit this morning by the Commonwealth making the position clear.

30    Moreover, these issues were exhaustively ventilated in O'Donoghue v Ireland [2009] FCA 618 which, in turn, was upheld on review in the Full Court in O’Donoghue v Ireland [2009] FCAFC 184.

31    Mr O’Donoghue cannot make out a case that the s 16 Certificate was capable of being impugned.

SPECIAL CIRCUMSTANCES

32    In support of the argument for special circumstances justifying bail, Mr O’Donoghue relies upon an extensive submission made to the Commonwealth Attorney-General and to the Minister for Home Affairs in July 2010 in support, it would seem, of the Minister not granting a s 22 Certificate. He says in that submission, (which I will not quote in full):

I am a 59 year old married man. My wife Ann-Marie and I have 4 children aged between 3 and 9.

1 have been imprisoned pursuant to the Extradition Act since 03 April 2009, ie, for over 15 months. I write these submissions in the hope that you will bring a sensible perspective and a sense of justice to Irelands oppressive attempts to extradite me.

I set out the detail of the matters that I would like you to consider in the body of these submissions. However, I would like to summarise why I have fought the attempts to extradite me so hard and at such great cost to my personal liberty and to the ruinous effects that the proceedings have had on my Family.

In summary:

(a) The 8 extradition offences and the 8 alternative offences were at all times a civil dispute about property transactions which have been "dressed up" as Criminal matters.

(b) The offences with which I am charged are minor offences and are cumulative multiples off two complaints in the alternative designed to give greater affect, (by deception) to the "seriousness" of the matter.

(c) The charges are not serious charges and were not taken seriously by the Prosecuting Authorities in Ireland until I had left Ireland. The events complained of occurred in 1998. There was a delay therefore of some 6 years as the warrants upon which my extradition is sought were not issued until 2004, and some 2 years after I had left Ireland to start a new life in Australia. That delay remains unexplained after a further 6 years since these Extradition Proceedings have commenced.

(d) That these charges were never considered as serious charges is further evidenced by the fact that no demand off any nature whatsoever was made by the 2 complainants at any stage.

(e) I did not leave Ireland as a fugitive, though this is the impression that Ireland has sought to create. I left Ireland legally and openly with no charges against my name. (f) I entered Australia legally and openly and satisfied all the Visa requirements with a view to establishing a new life in Australia with my wife and our new born daughter Emma. Until these Extradition Proceedings were commenced I was well on the way to obtaining my Permanent Residency Visa.

(g) These charges involve a comparatively minor amount of money, an amount of money that pales into insignificance when compared to the enormous costs involved in these Extradition Proceedings.

(h) There is no doubt that these charges and these Extradition Proceedings are Politically motivated. When viewed in perspective, the political situation described below, the delay in laying the charges, and the comparatively minor amounts of money involved do not make any sense in the absence of a political or other dimension and or agenda.

(i) I have been in prison for longer than one would have expected me to be imprisoned, had I returned to Ireland and been tried and found guilty of these charges (of which I maintain my innocence).

(j) These extradition proceedings have been used as an instrument of oppression by a State against an individual. These proceedings have ruined my life and my Family's life and destroyed our attempt to set up a new life in Australia.

…

I am an Irish citizen, born 23rd October 1951 in Dublin Ireland, I am a qualified Lawyer in Ireland. I enclose for your attention a copy of my Indentures from the Incorporated Law Society of Ireland and my primary law degree from University College Dublin, together with academic analysis of both.

I also enclose a copy of a communication from the Law society of Queensland which addresses the issue of my ability to practice Law in Queensland. You will note that with my qualifications 1 am permitted to act as a Legal Consultant. From my enquiries, I would have the same entitlement in each and every State and Territory in Australia. In the interests of completeness I attach letters of commendation from my time working in Queensland.

…

(1) Even if I were to return to Ireland I do not believe that I would receive a fair trial. The events complained of are alleged to have taken place some twelve (12) years ago. In the circumstances, it would be impossible for me to construct a defence and it is unknown where witnesses may be.

(2) I say that the circumstances of this case mean that if I were returned to Ireland it would result in harsh, unjust, and unfair consequences occurring to myself and my family.

(3) I believe that the Commonwealth of Australia should be guided by the Geneva Convention Oil Human Rights, the United Nations Charter on Human Rights together with the Australian Commission on Human Rights.

(4) 1 say and believe that I should not be extradited to Ireland notwithstanding the Bi-Lateral Treaty arrangements between Ireland and the Commonwealth of Australia. I believe that Bi-Lateral duties and obligations may only be relied upon in good faith.

(5) 1 say that to Extradite myself and my family to Ireland in the circumstances would amount to conduct on the part of Australia amounting to aiding and abetting corrupt acts of the Irish Police, collusion, criminal conspiracy and would be contrary to the laws of Australia.

(6) 1 say that Bi-Lateral Treaty Arrangements should not be used to breach Fundamental Human Rights under any circumstance.

(7) I say that Australia should not and cannot be a part of a arrangement or agreement which is less than bona-fide and the motives for which are less than genuine and in the interests of Justice, whether measured by Australian, Irish or international standards, including Magna Carta.

33    These matters may be relevant to the s 22 issue, on which I express no view, but they fall well short of exceptional circumstances justifying bail. Some new matters concerning his health were belatedly raised in the additional written submissions. They are entirely without any evidentiary foundation. Were they sufficiently serious to warrant an application, they would have been raised in proper form some time ago.

34    Few, if any, of the extraordinary circumstances specifically identified in Zentai, on which Mr O’Donoghue heavily relies, exist or apply in this case.

35    Mr O’Donoghue claims that the charges against him are politically motivated and that they are trivial.

36    On the first point there is no evidence other than his own statement. The allegations and the process have been exhaustively examined in previous appeals.

37    As to the suggestion that the charges are trivial, this must be categorically rejected. Extradition does not apply to trivial matters. The extradition process does not determine guilt or innocence but the alleged fraudulent conduct as asserted by the proper authorities is on a significant scale as the analysis by the Full Court and Barker J makes abundantly clear.

CONCLUSION

38    For the foregoing reasons, the application for bail is dismissed with costs.

Associate:

Dated:    24 December 2010