FEDERAL COURT OF AUSTRALIA

Matson (Roger) v The United States of America [2016] FCA 1548

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

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

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RANGIAH J:

1    In Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 389, the Full Court explained that there are four stages in extradition proceedings under the Extradition Act 1988 (Cth) (“the Act”). The first stage is commencement (by the issue of a provisional warrant under s 12(1) or by the giving of a notice under s 16(1) of the Act). The second stage is remand, in that, once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail. The third stage is determination by a magistrate of eligibility for surrender pursuant to s 19 of the Act. The fourth stage is executive determination as to whether the person is to be surrendered pursuant to s 22 of the Act.

2    This proceeding is for review under s 21 of the Act of a magistrate’s orders at the third stage.

Background

3    On 26 October 2005, a grand jury in the United States of America (“USA”) returned a fifteen-count indictment charging the applicant, Roger Matson, and two others with the following offences and maximum periods of imprisonment (“the original indictment”):

    One count of conspiracy to commit mail fraud and wire fraud – 5 years;

    Five counts of mail fraud – 20 years;

    Nine counts of wire fraud – 20 years.

4    On 21 December 2005, another grand jury returned a sixteen-count indictment (“the superseding indictment”). The superseding indictment charged the applicant and the two others with the original offences and an additional count of conspiracy to commit money laundering, which carries a maximum penalty of 20 years’ imprisonment.

5    The allegations made by the first respondent, the USA, are to the effect that between 1997 and 2000, the applicant, his son, Baron Matson, and Gordon Robert Grant created and sent various documents to individuals containing false and fraudulent statements, promises and representations in order to lure the individuals into investing in fraudulent schemes related to gambling on horse and greyhound racing. The schemes are alleged to have initially involved investors paying money for computer hardware and software known as the Professional Race Organizer Program (“the PRO Program”), which would allow investors to “generate a consistent cash income” and “successfully back every runner in every race”. It is alleged that after receiving large amounts of money from the investors for the PRO Program, investors were invited by the conspirators to invest in a new program, a Managed Accounts Program, which would increase their opportunity for return. Under this program the investors’ funds were to be pooled and the conspirators were to manage the wagering process. In 2000, investors were presented with an opportunity to invest up to $75,000 each to be used for wagering on the Melbourne Cup. The USA alleges that the conspirators then “vanished along with substantially all of the investors’ money”.

6    A warrant was issued for the applicant’s arrest on 26 October 2005 based on the original indictment (“the original arrest warrant”) and a second warrant was issued on 21 December 2005 based on the superseding indictment (“the second arrest warrant”). The second warrant contained a scrivener’s error and was re-issued on 14 November 2011 (“the re-issued arrest warrant”).

7    On 21 January 2015, the USA requested the extradition of the applicant from Australia. An affidavit was sworn on 26 February 2014 in support of the extradition request by Jay Trezevant, an Assistant United States Attorney (“the Trezevant affidavit”). A supplementary affidavit was sworn by Mr Trezevant on 12 May 2014 (“the supplementary Trezevant affidavit”).

8    On 17 September 2015, Magistrate Morrison of the Magistrates Court of the Australian Capital Territory issued an arrest warrant under s 12(1) of the Act. On 18 August 2015, the Minister for Justice issued a notice of receipt of the extradition request under s 16(1) of the Act.

9    On 30 June 2016, Chief Magistrate Rinaudo of the Magistrates Court of Queensland determined that the applicant was eligible for surrender to the USA. His Honour then ordered, pursuant to s 19(9) of the Act, that the applicant be committed to prison to await surrender or release.

Legislation

10    The USA is an “extradition country” under ss 5 and 11(1)(a) of the Act and reg 3 of the Extradition (United States of America) Regulations (Cth) (“the Regulations”). Under s 11(1)(b) of the Act and reg 4 of the Regulations, the Act applies to the USA subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to the Treaty on Extradition between Australian and the USA (“the Treaty”), as amended by the Protocol amending the Treaty on Extradition between Australia and the USA (“the Protocol”). The Treaty and Protocol are set out in Schs 1 and 2 of the Regulations.

11    Section 19 provides, relevantly:

(1)    Where:

(a)    a person is on remand under section 15;

(b)    the Attorney-General has given a notice under subsection 16(1) in relation to the person;

(c)    an application is made to a magistrate or eligible Federal Court Circuit Judge by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and

(d)    the magistrate or Judge considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;

the magistrate or Judge shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.

(2)    For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:

(a)    the supporting documents in relation to the offence have been produced to the magistrate or Judge;

(b)    where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate of any other documents – those documents have been produced to the magistrate or Judge;

(c)    the magistrate or Judge is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and

(d)    the person does not satisfy the magistrate or Judge that there are substantial grounds for believing that there is an extradition objection in relation to the offence.

12    The “supporting documents” required to be produced to the magistrate under s 19(2)(a) are defined in ss 19(3) and (7) of the Act, which provide:

(3)    In paragraph (2)(a), supporting documents, in relation to an extradition offence, means:

(a)    if the offence is an offence of which the person is accused – a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant;

…

(c)    in any case:

(i)    a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and

(ii)    a duly authenticated statement in writing setting out the conduct constituting the offence.

…

(7)    A document that is sought by or on behalf of an extradition country to be admitted in the proceedings is duly authenticated for the purposes of this section if:

(a)    it purports to be signed or certified by a judge, magistrate or officer in or of the extradition country; and

(b)     it purports to be authenticated by the oath or affirmation of a witness to be sealed with an official or public seal:

(i)     in any case – of the extradition country or of a Minister, Department of State or Department or officer of the Government, of the extradition country; or

…

13    Section 19(2)(b) is modified by Art XI of the Treaty, as amended by Art 7 of the Protocol, to require the production of further documents to the magistrate: Todhunter v United States of America (1995) 57 FCR 70 at 86; Hermanowski v United States of America (2006) 149 FCR 93 at [47]-[48]. Article XI as amended provides, relevantly:

(1)    All requests for extradition shall be made through the diplomatic channel.

(2)    The request for extradition shall be supported by:

(a)    documents, statements, or other types of information which describe the identity and probable location of the person sought;

(b)    a description of the conduct constituting the offence;

(c)    a statement of the law describing the essential elements of the offence for which extradition is requested; and

(d)    a statement of the law describing the punishment for the offence and the law relating to the limitation of legal proceedings.

(3)    A request for the extradition of a person who is sought for prosecution or who has been found guilty in his absence shall also be supported by:

(a)    a copy of the warrant or order of arrest issued in the requesting State for the arrest of the person for the offence;

(b)    a copy of the charging document, if any; and

(c)    a description of the facts, by way of affidavit, statement, or declaration, setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it.

The proceeding at first instance

14    Before Chief Magistrate Rinaudo, the applicant was unrepresented. The applicant submitted that the four pre-conditions in s 19(1) and the four eligibility criteria in s 19(2) of the Act were not met. His Honour held that the pre-conditions in s 19(1) were met, that the eligibility criteria in s 19(2) of the Act were established and that the applicant was eligible for surrender.

15    For the purposes of the application for review, the Chief Magistrate’s reasons regarding the fourth pre-condition in s 19(1)(d) are relevant. His Honour stated:

[Mr Matson] has had a number of appearances before the Court and particularly more recently before me where I have been attempting to ensure that he had sufficient opportunity, given that he has been in custody since his arrest and given that he was unable to obtain legal advice…On one occasion on the hearing of these applications he asked for a stay under the…Dietrich decision of the High Court on the basis that he did not have legal representation. However, I denied that on the basis that the provisions that I am required to consider were of an administrative nature and were not criminal proceedings in that sense.

…

Now, section 19(1)(d) of the requirements, that both – that the parties have reasonable time to prepare, and, as I have already said, I was concerned to ensure that the respondent have reasonable time to prepare and, to the extent where submissions were made over two different days, one with the respondent in custody and one where the respondent was brought to the Court, allowed to sit at the bar table and make oral submissions and provide documentation as he wished.

16    In the application for review, the applicant raises arguments in respect of three of the eligibility criteria, ss 19(2)(a), (b) and (d). At first instance, the applicant submitted that the re-issued arrest warrant and superseding indictment were not valid. The warrant and indictment are supporting documents required to be produced under ss 19(2)(a)-(b) and 19(3)(a) of the Act and Article XI(3)(a)-(b) of the Treaty, as amended by the Protocol. The Chief Magistrate held that all of the required supporting documents had been produced.

17    The applicant also submitted that there was an extradition objection for the purposes of s 19(2)(d). The Chief Magistrate summarised the extradition objection as being, relevantly, on the basis of the applicant’s nationality, race and religion, and concluded that the objection was not established.

The application for review

18    The applicant’s application to this Court for review of the Chief Magistrate’s order under s 19(9) is brought under s 21(1) of the Act.

19    In Pasini v United Mexican States (2002) 209 CLR 246, Gleeson CJ, Gaudron, McHugh and Gummow JJ at [18] described the role of the Federal Court of Australia in an application for review:

…The magistrate is required to determine administratively whether a person is eligible for surrender to an extradition country. The Federal Court is required to determine whether that decision was right or wrong and, if wrong, what decision should have been made by the magistrate, thereby determining the rights and liabilities of the parties to the review proceedings and, thus, exercising judicial power.

20    The applicant was represented at the hearing by counsel acting on a pro bono basis, who made thorough written and oral submissions. The applicant raised the following grounds of review:

1.    That the decision of the Third Respondent, made on 30 June 2016 (“The Third Respondent’s Decision”) be set aside on the grounds that the Third Respondent did not consider adequately whether the Applicant had reasonable time to prepare for the conduct of the proceedings under section 19(1)(d) of the Extradition Act 1988 (Cth) “the Act”.

Particular

In all the circumstances the Applicant was denied natural justice and procedural fairness, because he was not provided with a reasonable opportunity to enable submissions to be made, by/or on his behalf, where in the circumstances, the case warranted legal representation, to ensure that the Applicant was properly, adequately and fairly represented.

2.    That the decision of the Third Respondent, be set aside on the grounds that the Third Respondent has not taken relevant considerations into account, when considering sections 19(3)(c)(i) and (ii) of the Act.

Particulars

In relation to [Ground 2], the Third Respondent has not taken into account the following relevant considerations:

(i)    that the alleged offence committed by the Applicant is statute barred under United States law and is consequently in breach of ARTICLE VII(b) of the Treaty on Extradition Between Australia and the United States of America;

(ii)    the Third Respondent has added another Count from the Original Indictment dated 26 October 2005, (“The Original Indictment”), to the Superseding Indictment dated 21 December 2005 (“The Superseding Indictment”);

(iii)    Further to (i) and (ii) above, the Arrest Warrant that was issued and dated 21 December 2005 (“The First Arrest Warrant”), was discontinued because of a “scrivener’s error”, and again another Arrest Warrant was issued on 14 November 2011 (“The Second Arrest Warrant”).

3.    That the Third Respondent’s Decision be set aside on the grounds that the Applicant’s matter in the United States District Court, Middle District of Florida Division, Case No. 8:05-Cr-458-T-27TGW has not been prosecuted diligently by the First Respondent.

Particular

In relation to [Ground 3], the First Respondent has been dilatory in the extreme, by not prosecuting this matter against the Applicant. The Original Indictment was returned by the Grand Jury on 26 October 2005 and the Applicant was arrested 10 years to the day on 26 October 2015, and the Applicant’s whereabouts were always known to the relevant authorities, which are agencies of and/or were acting at the behest of the…Commonwealth of Australia.

4.    The Third Respondent has not considered the deficiencies in the proceedings as outlined above in Particulars to [Grounds 2 and 3], and as is (sic) it is required to as per section 19(4)(a) of the Act.

Particular

In relation to [Ground 4], the Applicant relies on the information provided in Particulars to [Grounds 2 and 3] above.

5.    The Third Respondent has been unreasonable when considering section 7(c) of the Act, as the Applicant is prejudiced, as he is subject to ‘special conditions’.

Particular

In relation to [Ground 5], the Third Respondent has made a decision so unreasonable, that no reasonable decision maker would have made and has misinterpreted and/or misapplied the law pertaining to ‘extradition objection’ and/or ‘special circumstances’.

6.    The Third Respondent’s Decision be set aside on the grounds that it is invalid, because of acts of “executive lawlessness”, by both the First Respondent and the…Commonwealth of Australia.

Particular

In relation to [Ground 6], for all of the reasons outlined above in Particulars to [Grounds 2 and 3], the First Respondent and the…Commonwealth of Australia have committed acts of “executive lawlessness”.

7.    That the Third Respondent’s Decision be set aside on the grounds that the Third Respondent has asked the wrong question when considering the section 19 criteria.

Particular

In relation to [Ground 7], the Third Respondent has not asked the correct question or questions, in relation to the documentation outlined above in Particulars to [Grounds 2 and 3], and the…Commonwealth of Australia has been derelict in it’s duty to the Applicant, who is an Australian citizen.

8.    That the Third Respondent’s Decision be set aside on the grounds that the decision by the Third Respondent was unreasonable when considering the requirements of section 19(9A) of the Act.

Particular

In relation to [Ground 8], the Third Respondent has made a decision that is so unreasonable, no reasonable decision maker would have made and has misinterpreted and/or misapplied the law pertaining to ‘special circumstances’.

9.    That the Third Respondent’s Decision be set aside on the grounds that the decision by the Third Respondent was illogical and/or irrational.

Particular

In relation to [Ground 9], for all of the reasons outlined above in Particulars to [Grounds 2 and 3], the Third Respondent has made a decision that is not rational or logical and is a decision that no logical or rational decision maker would have made.

(Footnotes omitted. Underlining omitted.)

21    Ground 4 states that the Chief Magistrate erred by not taking into account the alleged deficiencies outlined in Grounds 2 and 3. Ground 4 merely repeats that these considerations were “not taken into account”. Further, in Ground 7 the applicant argues that the Chief Magistrate asked the “wrong question when considering the section 19 criteria” relying on the particulars in Grounds 2 and 3. Therefore it is convenient to deal with Grounds 2, 3, 4 and 7 together.

22    There are broadly six issues in the application for review:

(a)    Whether the Chief Magistrate erred in his consideration of whether the applicant had reasonable time to prepare pursuant to s 19(1)(d) of the Act (Ground 1);

(b)    Whether the Chief Magistrate failed to take into account relevant considerations (Grounds 2, 3, 4 and 7), in particular:

(i)    whether the charges are statute-barred;

(ii)    that an additional charge was added to the superseding indictment;

(iii)    that the second arrest warrant dated 21 December 2005, based on the superseding indictment, was re-issued on 14 November 2011 due to a scrivener’s error; and

(iv)    the allegation that the charges have not been diligently prosecuted by the USA.

(c)    Whether the Chief Magistrate’s decision is invalidated by acts of “executive lawlessness” alleged to have been committed by the USA and the Commonwealth of Australia (Ground 6);

(d)    Whether the Chief Magistrate’s consideration of the extradition objection under s 7(c) of the Act was unreasonable (Ground 5);

(e)    Whether the Chief Magistrate’s consideration of the requirements under s 19(9A) of the Act regarding special circumstances for bail was unreasonable (Ground 8);

(f)    Whether the Chief Magistrate’s decisions were illogical and/or irrational (Ground 9).

Consideration

Reasonable time to prepare

23    Under s 19(1)(d) of the Act, the magistrate cannot proceed to conduct the proceeding to determine eligibility for surrender unless the magistrate considers that the person and the extradition country have had reasonable time to prepare for the conduct of the proceedings.

24    Counsel for the applicant submits that the Chief Magistrate ought to have adjourned the matter until the applicant was able to obtain legal representation. This submission is underpinned by an assumption that the applicant was entitled to be provided with legal representation, applying Dietrich v R (1992) 177 CLR 292 (“Dietrich”).

25    The USA submits that the proceedings under s 19 of the Act are administrative in nature and that the principles in Dietrich do not apply to extradition proceedings. The USA also submits that the applicant did in fact have reasonable time to prepare.

26    The scope of the proceedings under s 19 of the Act and the jurisdiction of the magistrate are limited. The determination is an administrative step in a wider extradition process and is not a trial on the merits of the case: Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 537-538; Vasiljkovic v Commonwealth (2006) 227 CLR 614 at [23] and [33]-[34].

27    In Rivera v United States of America [2004] FCAFC 154 at [23]-[30], the Full Court held that the Dietrich principle did not apply to extradition proceedings because the proceedings were administrative in nature, not criminal. Heerey, Sundberg and Crennan JJ stated at [29] that reliance on the Dietrich principle in that case:

…was predicated on the misconception that the criminal charge against him was being determined in the proceedings conducted under the Extradition Act when the charge was not there being determined; all that was being determined was his eligibility for surrender.

28    The Chief Magistrate made no error in failing to adjourn the proceedings until the applicant was provided with legal representation.

29    The USA filed its submissions on 15 December 2015. The hearing took place on 28 April 2016, some four months later, and was completed on 3 June 2016, some six months later. His Honour was aware of the requirement under s 19(1)(d) of the Act, took steps to ensure that the applicant had reasonable time to prepare and expressly found that he had reasonable time to prepare. There was no error in deciding that the applicant had reasonable time to prepare.

Relevant considerations, wrong questions and alleged deficiencies

30    The applicant submits that the Chief Magistrate erred by not taking into account relevant considerations or making inquiries as to:

(a)    the effect of the re-issuing of the arrest warrant (due to a scrivener’s error) on the validity of the warrant;

(b)    the effect of the addition of the sixteenth charge to the superseding indictment upon the validity of the indictment and;

(c)    whether the charges are statute-barred.

31    The applicant further submits that the Chief Magistrate erred by taking the documentation presented in the Trezevant affidavits at face value. The applicant’s written submissions then delve into substantive argument about the validity of the indictment and warrant. The applicant’s submissions also refer to ss 19(3)(c)(i) and (ii) of the Act which relate to a description of the offences, the applicable penalties and the conduct constituting the offence. However, the applicant did not raise any substantive argument concerning those matters.

32    The USA submits that the required supporting documents were produced to the Chief Magistrate and that ss 19(2)(a) and (b) of the Act have been satisfied. The USA submits that the Chief Magistrate was entitled to take the documents at face value.

33    A duly authenticated warrant is required under ss 19(2)(a)-(b) and 19(3)(a) of the Act and Article XI(3) of the Treaty. A copy of the charging document is required by s 19(2)(b) of the Act and Article XI(3)(b) of the Treaty.

34    The extradition request is based on and supported by the re-issued arrest warrant dated 14 November 2011. The supplementary Trezevant affidavit at para 5 states that:

The warrant dated December 21, 2005, which is Exhibit 3 to my affidavit, contained a scrivener’s error, which did not affect the validity of the warrant. Nevertheless, on November 14, 2011, a new arrest warrant for ROGER MATSON/BRONSTEIN was issued…This warrant remains valid for the arrest of ROGER MATSON/BRONSTEIN.

The charging document is the superseding indictment, which is Exhibit 1 to the Trezevant affidavit.

35    A magistrate is not an expert in foreign law and is not required or permitted to determine substantive arguments that challenge the validity of documents according to USA law: Kommatas v Hellenic Republic [2014] FCA 1224 at [13], [18]; Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 300. The Chief Magistrate was not required to make a substantive determination about the validity of the warrant or charging document.

36    The applicant’s submission that the Chief Magistrate erred in not taking into account the effect of the re-issuing of the arrest warrant or the addition of the sixteenth charge to the superseding indictment on the validity of those documents must fail.

37    In Bennett v United Kingdom [2000] FCA 916, Katz J held at [25]:

[T]he parliament…did not intend it to be part of a magistrate’s function under s 19 of the Act to determine whether a prosecution for the offence in the extradition country would be statute-barred according to the law of that country…

38    Similarly, the Chief Magistrate was not required to consider whether the charges are statute-barred.

Abuse of process

39    The applicant alleges that the USA has been “dilatory, remiss and incompetent” in the prosecution of the charges against him. The applicant’s submission is two-fold. Firstly, that the delay in prosecution is a relevant factor that should have been taken into account by the Chief Magistrate. Secondly, such delay constitutes “executive lawlessness” and that the proceedings should therefore have been dismissed. The applicant defines executive lawlessness as a species of abuse of process.

40    The USA submits that delay is not a relevant consideration to s 19 proceedings and a magistrate has no power to dismiss proceedings on the basis of delay by the extradition country or on the basis of an abuse of process.

41    To the extent that delay is relied on to establish that the charges are statute-barred under USA law, it is not relevant to the s 19 proceedings as discussed above at [35]-[38].

42    The applicant also relies on delay by the USA to attempt to establish abuse of process. In Forrest v Kelly (1992) 34 FCR 74, the Full Court held at 79 that:

The provisions of the Extradition Act which apply to this case confer no power on a magistrate to dismiss an application for the surrender of a person on the ground that it represents an abuse of process or that delay would cause any trial in the requesting country to be unfair…

See also Papazoglou v Republic of the Philippines (1997) 74 FCR 108 at 130-132.

43    A magistrate at the third stage of extradition proceedings cannot stay proceedings on the basis of abuse of process.

Extradition objections

44    Section 7(c) of the Act provides:

For the purposes of this Act, there is an extradition objection in relation to an extradition offence for which the surrender of a person is sought by an extradition country if:

…

(c)  on surrender to the extradition country in respect of the extradition offence, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, sex, sexual orientation, religion, nationality or political opinions…

45    The applicant submits that:

Whilst special circumstances has not been included within section 7 of the Act, it is submitted that special circumstances are an extradition objection and would be able to be included in section 7(c) of the Act…In this regard, the meaning of extradition objection as set out in section 7 is not exhaustive and if the circumstances pertaining to the Applicant are extraordinary, which it is argued they are then the Applicant falls within the meaning of extradition objection.

46    The applicant submits that his poor health is a special circumstance that falls within s 7(c) of the Act.

47    The USA submits that special circumstances or health conditions are not extradition objections.

48    The language, context and purpose of s 7(c) of the Act limits its scope to the circumstances set out in that section. In Republic of Croatia v Snedden [2010] HCA 14 at [66]-[70], the High Court discussed the provenance of s 7(c). That discussion reveals that s 7(c) is specifically directed towards preventing prejudice specifically in relation to race, sexual orientation, sex, religion, nationality or political opinion where such prejudice is caused by or condoned by the State. The provision exhaustively defines extradition objections.

49    The Chief Magistrate was not required to take the applicant’s health or other “special circumstances” into account as an extradition objection.

Illogicality and/or irrationality

50    The applicant submits that the Chief Magistrate’s decision under s 19 was illogical and/or irrational. This submission was not particularised with respect to the substantive s 19 decision. The applicant’s written submissions only address illogicality and irrationality in the context of the bail application (discussed below).

Challenge to the Chief Magistrate’s decision to refuse bail

51    The applicant challenges the Chief Magistrate’s decision refusing to order the applicant’s release on bail under s 19(9) of the Act. The applicant submits that the Chief Magistrate’s decision was unreasonable, illogical and/or irrational and that his Honour misapplied the law pertaining to special circumstances.

52    Sections 19 provides, relevantly:

(9)    Where, in the proceedings, the magistrate or Judge determines that the person is eligible for surrender to the extradition country in relation to the extradition offence or one or more of the extradition offences, the magistrate or Judge shall:

(a)    order that the person be committed to prison or (subject to subsection (9A)) released on bail, to await:

(i)    surrender under a surrender warrant or temporary surrender warrant; or

…

(9A)    A magistrate or eligible Federal Circuit Court Judge must not release a person on bail under paragraph (9)(a) unless there are special circumstances justifying such release.

53    The applicant brought a fresh application for bail before the Federal Court. On 12 December 2016, I refused the applicant’s application for bail. My reasons for doing so are set out below at [62]-[68].

54    No error is discernible in his Honour’s decision to refuse bail. His Honour held that special circumstances justifying release on bail were not established. The decision was supported by reasons and there was a clear, logical and rational basis for the decision. The decision cannot be characterised as unreasonable, illogical or irrational. Even if the applicant could show an error, I would refuse relief in the exercise of my discretion because there is no utility in doing so and because any error has been cured by the fresh hearing: see Calvin v Carr [1980] AC 574 at 593.

55    For the reasons I have given, the applicant has failed to demonstrate any error in the Chief Magistrate’s decision. The application must be dismissed with costs.

Applications to stay the proceedings

56    The applicant filed identical applications seeking orders staying these proceedings and proceedings in a related matter, QUD 422 of 2016. The applicant was not represented by counsel in the stay applications, but was represented by his son, Baron Matson. On 12 December 2016, I dismissed the applications for stays and indicated I would give my reasons later. These are my reasons.

57    Firstly, the applicant highlighted time constraints and limitations on the part of the applicant’s pro bono counsel to “adequately and professionally prepare a detailed defence”. Secondly, the applicant submitted that these proceedings should be stayed until related matters have been resolved, namely USA Case No. 8:05-Cr-458-T-27TGW and an application for a writ of habeas corpus filed in the Supreme Court and then transferred to this Court (now QUD 926 of 2016).

58    It is unusual for an applicant to seek a stay of his or her own application. The stay applications may be better understood as requests for adjournment of the hearing.

59    Contrary to the suggestion that the applicant’s pro bono counsel did not have sufficient time to prepare for the hearing, both parties had filed written submissions and accompanying materials and counsel was ready to make oral submissions regarding the substantive proceedings on 12 December 2016. Therefore, to the extent that the stay application could be understood as an adjournment seeking further time for preparation, it had no basis.

60    The existence of the related proceedings provided no adequate basis for an adjournment. The applicant failed to demonstrate any material prejudice in having the present proceeding heard and determined in advance of the related proceedings.

61    Accordingly, the applications to stay the proceedings were dismissed.

Application for bail

62    The applicant applied for bail under s 21(6)(f)(iv) of the Act. The USA opposed bail. On 12 December 2016, I refused bail and indicated I would provide reasons later. These are my reasons.

63    In United Mexican States v Cabal (2001) 209 CLR 165 (“Cabal”) at [61]-[62], the High Court said that an applicant for bail must demonstrate two matters:

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…Second, 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.

64    Counsel for the applicant submitted that the applicant had special circumstances based on his age and health. The applicant is 75 years old. Dr Renaut’s medical report states that the applicant previously had bowel cancer and has recovered after undergoing treatment including a total colectomy and the construction of a J-Pouch. The applicant also suffers from asthma, micturition, nocturia, hypertension and presents with symptoms consistent with “moderately advanced dementia”.

65    I accept that the applicant is frail and in poor health. However, Dr Renaut’s opinion is that incarceration will not necessarily exacerbate any of his presenting conditions. Further, the applicant is receiving treatment for his conditions and there is no medical evidence before the Court that suggests that there is a lack of suitable treatment at Arthur Gorrie Correctional Centre, where he is currently being held: cf Cabal at [53]; Zentai v Republic of Hungary [2009] FCA 511 at [5]-[7]; and Kalejs v Republic of Latvia [2001] FCA 676 at [16]-[18].

66    Further, while incarceration and the extradition proceedings generally are stressful for the applicant, that is not a circumstance unique to him.

67    I was not satisfied that the applicant had established special circumstances that justified his release from custody on bail.

68    Even if the applicant had established special circumstances, I would have refused bail in the exercise of the Court’s discretion on the basis that only a short period between the grant of bail and the delivery of judgment in the substantive proceeding was anticipated.

Associate:     

Dated:    22 December 2016