FEDERAL COURT OF AUSTRALIA

Castle v United States (No 3) [2018] FCA 2022

ORDERS

THE COURT ORDERS THAT:

1.    The application for review under s 21 of the Extradition Act 1988 (Cth) filed on 22 December 2017 is dismissed.

2.    Pursuant to s 21(2)(a) of the Extradition Act 1988 (Cth) the order of the second respondent made on 8 December 2017, is confirmed.

3.    The application pursuant to s 39B of the Judiciary Act 1903 (Cth) is dismissed.

THE COURT DETERMINES THAT:

1.    The applicant, James Christopher Castle (also known as Chris Castle or James Castro) is eligible for surrender, within the meaning of s 19(2) of the Extradition Act 1988 (Cth) in relation to the following extradition offences:

(a)    one count of conspiracy to defraud the United States in violation of Title 18 United States Code (U.S.C.) 371;

(b)    one count of conspiracy to commit bank fraud and false making of lending agency writings in violation of Title 18 U.S.C. section 371;

(c)    15 counts of bonds and obligations of certain lending agencies, in violation of Title 18 U.S.C. section 493;

(d)    21 counts of bank fraud in violation of Title 18 U.S.C. section 1344(1); and

(e)    one count of transactions in criminally derived property in violation of Title 18 U.S.C. section 1957.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    The background to this matter is set out in the Court’s reasons in Castle v United States [2018] FCA 931 (Castle No 1), and I need not repeat it. In that decision, the Court dismissed the applicant’s objection to the jurisdiction of this Court, and the jurisdiction of the Judge who made a determination under s 19 of the Extradition Act 1988 (Cth) that the applicant was eligible for surrender to the United States of America. In these reasons I shall call the Judge appointed under s 45A of the Extradition Act to conduct the s 19 hearing “the s 19 Judge”.

2    After that decision, what was left for determination was the applicant’s review application pursuant to s 21 of the Extradition Act. However, Mr Castle also continues to pursue arguments by way of judicial review, invoking (at least) s 39B of the Judiciary Act 1903 (Cth). Most of his written submissions on judicial review in respect of the proceeding raise matters which relate directly to, or are repetitions of, the arguments he put about the jurisdiction of the Attorney-General to issue the s 16 notice, the jurisdiction of the s 19 Judge, and of this Court. Those arguments were rejected in Castle No 1. I do not propose to repeat my findings and adopt them in these reasons. Nothing the applicant submitted in the course of the hearing of the s 21 review altered the views I formed in Castle No 1.

3    The applicant has continued to represent himself. In his submissions on the s 21 review he has complained about the facilities available at the Melbourne Remand Centre, where he is held in custody. I accept it has been difficult for the applicant to prepare the materials he wished to put before the Court, but two observations should be made. The first is that most of the material he has prepared is irrelevant to the s 21 review. I do not say that critically of the applicant – rather to emphasise that I do not consider he has suffered any relevant prejudice because of having to prepare his case from prison. Second, the applicant was, as I noted in Castle No 1, offered pro bono legal representation by the Court early in this process and declined that offer.

4    In summary, for the reasons set out below, I have found there are no grounds to set aside the determination made by the s 19 Judge, nor the warrant issued by him under s 19(9) of the Extradition Act.

The evidence before the Court

5    As I noted in Castle No 1, subject to the terms of s 21A, s 21(6) of the Extradition Act limits the evidence which can be considered on a review of a s 19 determination. Section 21A has no application in this review because the Court has not found that the s 19 Judge excluded any evidence which Mr Castle should have been permitted to adduce. As I set out below, Mr Castle nevertheless sought to refer to material which was outside the terms of s 21(6). I have had no regard to that material.

6    The material properly before the Court, consistently with s 21(6), was contained in a Court Book prepared by the United States. It consisted of:

(1)    The extradition request from the United States for James Christopher Castle dated 28 March 2017, including the affidavit of Ms Cynthia Stier and Ms Audrey B Hemesath;

(2)    A notice of receipt of the extradition request made under s 16 of the Extradition Act;

(3)    Submissions filed by the United States dated 29 August 2017 on the applicant’s eligibility for surrender;

(4)    An affidavit of James Christopher Castle dated 23 September 2017, attaching:

(a)    a notice under s 254 of the Migration Act 1958 (Cth) addressed to Mr Castle;

(b)    email correspondence between parties and the chambers of the s 19 Judge; and

(c)    a letter from Mr Castle to the Australian Border Force dated 10 September 2017;

(5)    An affidavit of Mr Castle sworn on 26 September 2017;

(6)    Submissions in reply filed by the United States on the applicant’s eligibility for surrender;

(7)    Correspondence from Mr David A Sale dated 15 July 2017;

(8)    A document describing the “History and Powers of the International Treasury Control”;

(9)    Transcript of the s 19 eligibility proceedings conducted before his Honour Judge Riethmuller on 23 October 2017;

(10)    Transcript of the decision of his Honour Judge Riethmuller on the applicant’s eligibility for surrender (delivered ex tempore on 8 December 2017);

(11)    A warrant issued under s 19(9) ordering the applicant’s committal to prison to await surrender;

(12)    A letter issued under s 19(9) from his Honour Judge Riethmuller to the Attorney-General;

(13)    An order by Judge Riethmuller remanding Mr Castle into custody under s 15 of the Extradition Act; and

(14)    Transcript of proceedings before his Honour Judge Riethmuller on 15 August 2017.

7    The United States also sought to include a covering diplomatic note to the extradition request pursuant to s 21A of the Extradition Act 1988 (Cth). In the Court Book index, this document was marked as “Evidence excluded by eligible judge at s 19 hearing, included subject to s 21A of the Extradition Act 1988 (Cth). No submissions were made to support an argument under s 21A(2)(b) and therefore I do not consider the document should be received on the s 21 review.

8    In his submissions on the s 21 review, Mr Castle had attached an affidavit, which on its face indicated it was sworn on 6 October 2017. This affidavit was not before the s 19 Judge, and the United States objected to the affidavit on that basis. Mr Castle accepted the affidavit itself was not before the s 19 Judge. He contended he had difficulties in getting it filed in time because of what he described as issues arising from his detention. However, he submitted that he read the contents of the affidavit into the transcript. After some discussion, I indicated my preliminary view would be that if this had occurred, then the material probably was “before” the s 19 Judge, and so not within the scope of the prohibition in s 21(6). Counsel for the United States accepted that may be the correct approach, but properly reserved her position on the matter until Mr Castle had identified the relevant transcript pages from the s 19 hearing. Mr Castle was given time to supply the Court and the United States with the transcript references from the s 19 hearing, where he contended he read the affidavit to the s 19 Judge.

9    Ultimately, it became apparent that the transcript references Mr Castle found and gave the Court, referred to only limited parts of the affidavit attached to his submissions. Mr Castle then added that he did not read the whole of the affidavit because he felt pressured to “truncate” information he was presenting to the s 19 Judge, as he felt the judge was getting impatient or uncomfortable.

10    There was limited overlap between what appeared on the transcript pages identified by Mr Castle and the contents of the affidavit attached to his s 21 submissions. That lack of overlap led counsel for the United States to submit that to the extent that Mr Castle relied during the s 19 hearing upon information now in his affidavit, the best evidence of that reliance is the transcript of the s 19 hearing, rather than what she described as a “secondary recitation” of that information through the affidavit. She noted there were no documents exhibited to the affidavit, or referred to in the affidavit, which were also in the transcript pages given by Mr Castle, and that to the extent that there were such references, the United States would not object to reliance on them.

11    I accept the submissions of the United States, as I understood them, that given the lack of overlap, s 21(6) operates to preclude this Court from taking into account, and permitting to be read in evidence, Mr Castle’s affidavit sworn 6 October 2017. I accept that whatever Mr Castle said to the s 19 Judge, even if it was more by way of submissions than evidence, can be taken into account in his review under s 21. However, in the passages to which Mr Castle has referred the Court, there is nothing of any relevance to the questions the Court must determine under s 21.

12    Finally, there were references in Mr Castle’s s 21 submissions to s 75 of the Constitution and orders he had sought in the High Court against the s 19 Judge, against myself, and against the former and current federal Attorneys-General. When asked about these references, Mr Castle stated he had in fact filed applications in the High Court. He stated he “had not heard back” from the Court. After an explanation about the fact that only this court had jurisdiction under s 21 of the Extradition Act, Mr Castle accepted the s 21 review could not be transferred to the High Court of Australia and should proceed here.

The extradition offences

13    Mr Castle’s surrender is sought by the United States in relation to the following extradition offences:

(a)    one count of conspiracy to defraud the United States in violation of Title 18 United States Code (U.S.C) 371;

(b)    one count of conspiracy to commit bank fraud and false making of lending agency writings in violation of Title 18 U.S.C section 371;

(c)    15 counts of bonds and obligations of certain lending agencies, in violation of Title 18 U.S.C section 493;

(d)    21 counts of bank fraud in violation of Title 18 U.S.C section 1344(1); and

(e)    one count of transactions in criminally derived property in violation of Title 18 U.S.C section 1957.

14    At [25]-[34] in Castle No 1, I summarised what I saw as the key allegations against Mr Castle in the United States’ extradition request. However, what I set out there related to the major group of charges against Mr Castle, namely those explained by Ms Hemesath in her affidavit, relating to the so-called “mortgage elimination program”: see [13(b)-(e)] above. Ms Stier deposed, in her affidavit, to another extradition offence of a different nature, also the subject of the extradition request. That offence is listed at [13(a)] above: namely one count of conspiracy to defraud the United States in violation of Title 18 United States Code (U.S.C.) 371. It relates to separate conduct said to constitute that offence, engaged in by both Mr Castle and his wife Ms Karakasevic. There was another offence arising out of this conduct, but only Ms Karakasevic was charged with it. The allegations relate to a business operated by Ms Karakasevic and Mr Castle, called TTF Consulting, LLC. Ms Stier describes the conduct said to constitute the offence for which Mr Castle was tried:

Between July 7, 2008 and June 8, 2009, Karakasevic and Castle conspired to defraud the IRS by preparing Form 1099-OIDs and filing them with the IRS. The Form 1099-OID [1099-OID] is an IRS form that is prepared by the issuer (usually a financial institution) to report annual interest earned on original issue discount (OID) securities. The issuer files the 1099-OID with the IRS and sends it to the investor so that they can report the interest income on their federal income tax return. Karakasevic and Castle conspired to create fictitious 1099-OIDs which reported withheld interest from financial institutions. Karakasevic electronically filed the 1099-OIDs with the IRS and provided them to the taxpayers or their return preparers to file tax returns.

Mr Castle’s submissions summarised

15    As I have noted, Mr Castle sought to re-agitate arguments he had made on his objection to the jurisdiction of this Court and of the s 19 Judge. Those arguments revolved, again, around his alleged status as an internationally protected person and his immunity from the extradition processes. He also raised again his arguments about the failure of the United States, the s 19 Judge and this Court to make inquiries of those individuals or entities he alleged could verify his status, such as David A Sale, whom Mr Castle described in his s 21 submissions as:

…Legal Heir, Owner, and Sole Arbiter of the assets and accounts of the Global Debt Facility, a “Sovereign” in His own right holding International Protected person status combined with International/ United Nations Level 3-5 Immunity and Protectorate with His own Legal Jurisdiction as registered and recorded under the Great Seal of America No: 632-258894 and the United Nations Charter Control No: 10-60847.

16    So far as I can tell from the evidence, the numbers in this description do not refer to any document in the evidence, or that Mr Castle produced to the s 19 Judge.

17    I do not consider those arguments about Mr Castle’s alleged protected status have any different operation or application to the s 21 review, or to any ongoing judicial review of the s 19 Judge’s determination, than they had to the jurisdiction of this Court or of the s 19 Judge. Aside from the overarching issue of jurisdiction, which has been decided against Mr Castle in Castle No 1, those arguments are irrelevant to whether Mr Castle was eligible for surrender in accordance with s 19 of the Extradition Act. Insofar as I may be wrong about that view, I adopt [73] to [114] of my reasons in Castle No 1, and find that Mr Castle has not proven he has any status which would give him immunity from the processes under the Extradition Act.

Allegations of unlawful conduct by the s 19 Judge

18    Apparently under either or both s 21 of the Extradition Act or the Judiciary Act, Mr Castle submits the s 19 Judge engaged in the following conduct:

(1)    “Dismissing evidence”: Mr Castle contends the s 19 Judge dismissed as “rubbish” the contents of a “Notice” from David A Sale, purporting to inform the Court of Mr Castle’s “internationally protected person” status. At the s 21 oral hearing Mr Castle explained this was about what he had identified in Castle No 1 as “exhibits 1 to 6”, which purported to be sent by David A Sale and to relate to the International Treasury Control and the complaint appears to be that the s 19 Judge should not have dismissed them out of hand as he did.

(2)    “Refusal to allow witnesses to take the stand”: Mr Castle contends the s 19 Judge refused, during the 23 October 2017 hearing, to allow him to call a witness. He contends that an “agent for the International Treasury Control”, Mr Gordon Douglas Matthews, was present and ready to give sworn testimony but was refused. Mr Castle insisted in the hearing before me that Mr Matthews should be called “Lord” Matthews. Mr Castle submitted that Mr Matthews could have “verified” the nature and existence of the International Treasury Control, and the s 19 Judge refused to allow this to occur.

(3)    The s 19 Judge “abused his power” including by refusing to adjourn hearings, and failing to “defer to the High Court”. In oral submissions Mr Castle developed this by reference to a hearing on around 10 July 2017, where he contended he was “not exactly in the best of states” as a result of conditions in prison and contended the s 19 Judge should have granted an adjournment because of this and because the s 19 Judge had no jurisdiction in any event.

(4)    Mr Castle objected to the s 19 Judge relying on information from Wikipedia about the International Treasury Control and about David A Sale. In oral submissions, Mr Castle stated that he distinctly recollected the s 19 Judge referring to having looked at the internet, and this was in error because the Wikipedia entry about the International Treasury Control is inaccurate.

(5)    Mr Castle submitted that Ms Rosemary Yu, a trial attorney with the United States Department of Justice, whose correspondence formed part of the evidence given by Ms Hemingway on behalf of the United States at a bail application hearing prior to the s 19 hearing, was “on extended, suspended leave due to her conduct at the USDOJ” and was not available for cross-examination by him at the s 19 hearing. He submitted all of Ms Yu’s correspondence should have been rejected by the s 19 Judge and should not be available to the United States on the s 21 review.

An extradition objection

19    Mr Castle contended he had an extradition objection under s 7 of the Extradition Act. He contended he had raised this objection before the s 19 Judge and the s 19 Judge had erroneously found he had made no such objection. Section 7 provides:

7 Meaning of extradition objection

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:

(a)    the extradition offence is a political offence in relation to the extradition country; or

(b)    the surrender of the person, in so far as it purports to be sought for the extradition offence, is actually sought for the purpose of prosecuting or punishing the person on account of his or her race, sex, sexual orientation, religion, nationality or political opinions or for a political offence in relation to the extradition country; or

(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; or

(d)    assuming that the conduct constituting the extradition offence, or equivalent conduct, had taken place in Australia at the time at which the extradition request for the surrender of the person was received, that conduct or equivalent conduct would have constituted an offence under the military law, but not also under the ordinary criminal law, of Australia; or

(e)    the person has been acquitted or pardoned by a competent tribunal or authority in the extradition country or Australia, or has undergone the punishment provided by the law of that country or Australia, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence.

20    Mr Castle submitted:

(1)    he is charged with an offence that is political in nature;

(2)    his extradition is sought by the United States for the purposes of prosecuting him on the basis of his political opinion; and

(3)    he will be prejudiced at his trial, and punished, detained and restricted in his personal liberty by reason of his political opinions.

21    In oral submissions when asked to explain how he put this objection before the s 19 Judge, Mr Castle responded, in substance, that while he did not refer to s 7 expressly before the s 19 Judge, he did bring up the fact that the extradition request is political in nature.

22    When asked what were the “political opinions” on which he relied, he referred to his views about the mortgagee sales in the United States, and the “fraudulent” role of the United States’ banks. Mr Castle contended he could not foresee if there was going to be harm to him, he could only go on what he had heard or seen, and referred to the mysterious death of his friend, a matter he had also referred to before the s 19 Judge.

23    I was not able to identify any other arguments made by Mr Castle which conceivably went to either the matters of which the s 19 Judge needed to be satisfied as part of his task, or the matters relevant to this Court’s review under s 21.

Other matters raised but which are not determined

24    In the “remedy” portion of his submissions, Mr Castle referred to seeking an order quashing the “border protection intention to deport”. I take this to be a reference to a notice given to Mr Castle under the Migration Act, relating to his removal from Australia. The Court is presently exercising jurisdiction under the Extradition Act and the Judiciary Act, not the Migration Act. As I explained to him, any challenges Mr Castle has to his migration status, and to decisions under the Migration Act, are not to be determined in this proceeding. One obvious reason is that the respondents to this proceeding are the United States and the s 19 Judge. Mr Castle eventually appeared to accept these proceedings were not about his migration status.

Other submissions at the hearing

25    Mr Castle was invited to make oral submissions, to emphasise or develop any points in his written submissions. He submitted that at the 10 April 2018 hearing this Court had ignored his submissions. I reject that submission: Mr Castle’s submissions made at the 10 April 2018 hearing were dealt with in Castle No 1.

26    Mr Castle returned in oral argument to points about his employment with the International Treasury Control, and the failure of Australian authorities to inquire about these matters. I explained I had given a judgment about those matters and he could not revisit them with me, but could appeal.

27    Mr Castle also made a submission to the effect that he was not a citizen of the United States, but was a citizen of the Republic of California. On this basis he contested all the references in the supporting documents, including the affidavit material from Ms Hemesath and Ms Stier, to him as a United States citizen were incorrect. Plainly this argument has no legal basis, and there is no legally recognised citizenship of the State of California that could form a basis for this attempt by Mr Castle to avoid extradition.

28    Mr Castle objected to the United States relying on some decided cases as authority for some of the legal propositions it submitted the Court should adopt. During the hearing I explained to Mr Castle how such reports of previous decisions are not evidence and so not precluded by s 21(6) of the Extradition Act, and there is no impediment to the United States directing the Court’s attention to particular decided cases.

The United States’ submissions summarised

29    The written submissions of the United States set out all the jurisdictional matters of which the s 19 Judge needed to be satisfied, and submitted each had been proven before the s 19 Judge and no error had been shown about those matters on a rehearing in the s 21 review. I set out a summary of those matters below, where I accept the submissions made by the United States.

30    In oral submissions, counsel for the United States attempted as best she could to respond to the arguments raised by Mr Castle, which were often difficult to follow. Where they could be followed, counsel submitted in substance that they either lacked any objectively ascertainable factual basis (such as many of the assertions about the secret international organisation described as the International Treasury Control) or were obviously legally flawed (such as the citizenship point to which I have referred already). Counsel submitted that some of the matters raised by Mr Castle – such as his identity – were not matters for the s 19 Judge and therefore not for this Court on a review under s 21. Those submissions should be accepted, as I set out below.

Resolution

General findings

31    The Court’s task under s 21 is to “review” the order made by the s 19 Judge. In Cabal v United Mexican States (No 3) [2000] FCA 1204; 186 ALR 188, French J (as his Honour then was) explained the task in the following terms (at [113]-[117]):

The nature of the review process created by s 21 of the Extradition Act is defined in part by the limitation imposed upon the court requiring it to “... have regard only to the material that was before the magistrate”: s 21(6)(d). It is also defined in part by the powers which the court is given. The only dispositive options are to confirm or quash the order of the magistrate. Confirmation in this context amounts to a declaration that the magistrate’s order stands: see the discussion of “affirm” in Abebe v Commonwealth (1999) 162 ALR 1 at 18 (Gleeson CJ and McHugh J), 48 (Gummow and Hayne JJ), 65 (Kirby J), 75–6 (Callinan J).

In Kainhofer v Director of Public Prosecutions (No 2) (1996) 70 FCR 184 it was said (at 194):

The word “review” is not a word of limitation; it is a word of great width. The word may have different meanings depending upon its context ... In the present context, it involves a judicial re-examination of the decision by the magistrate, limited to the material before the magistrate. [emphasis added]

That does not mean that the court is limited to the question whether the requested person is eligible for surrender in relation to the offence or offences for which the magistrate had determined that the person was eligible:

... the question for the court is whether the person is eligible for surrender to the extradition country in relation to any of the offences in relation to which surrender is sought by that country ... [Kainhofer (No 1) at FCR 360; ALR 683]

There is, however, a limitation in that a party who has not objected to the reception of material by the magistrate cannot make a complaint about that material before the court: Zoeller at FCR 292. That case was said by Hill J in Republic of South Africa v Dutton (1997) 77 FCR 128 at 134; 147 ALR 310, to be authority for the proposition that “. . . in a review the court will not consider points not taken before the magistrate”. In my respectful view, what was said in Zoeller goes only to the scope of the material before the court on a review. It does not address the question whether it is open to a party on a review hearing to raise new points of law with no evidentiary implications. In my view it is open to a party to do so. In Dutton, consistently with Zoeller, the accused person was bound, upon the review, by an election not to put material before the magistrate going to an extradition objection. That election was based upon the magistrate’s ruling as to the inadmissibility of material tendered by the requesting country and the insufficiency of the evidence to establish eligibility for surrender. If the magistrate were found on review to be wrong and the material sufficient, the extradition objection could not then be raised. I respectfully agree with the description given by Hill J of the review process (at FCR 136):

From these matters it seems to me clear that the review contemplated by s 21 is not a species of judicial review in the sense of a review limited to correcting legal error. It is a rehearing in which the court undertaking the review is authorised to reach its own conclusions on eligibility for surrender, but a rehearing which is limited statutorily to the material before the magistrate. Fresh evidence it would seem would not be admissible. This is hardly likely to cause difficulty since the hearing before the magistrate, the subject of the review, is, in any event, largely a hearing on documentary material.

The limitation of the review to the materials before the magistrate raises the question what those materials are. That is a matter which has already been canvassed in a ruling in the course of these proceedings: Cabal v United Mexican States (No 2) (2000) 172 ALR 743. For convenience of reference I repeat the summary of propositions set out in that ruling (at 751):

(1)    The materials before the magistrate comprise the testimony, documents and things which were received by the magistrate in evidence and those which were tendered to the magistrate but not accepted in evidence.

(2)    The court upon review, is not limited to consideration of material received by the magistrate in evidence but may have regard to other material tendered to the magistrate but not received in evidence.

(3)    In determining which of the materials before the magistrate it is to accept and take into account on the review, the court will apply criteria of relevance, weight and fairness. It may reject material, whether accepted by the magistrate or not, on the grounds that it is irrelevant or that it is of little weight or that to receive it would unfairly prejudice a party to the review.

(4)    In considering whether there are substantial grounds for believing that an extradition objection is made out for the purposes of s 19, neither the court nor the magistrate is limited to evidence admissible, according to the rules of evidence, to demonstrate that the fact constituting the objection exists.

(5)    It is not open to a party on review to rely for a particular purpose upon material tendered to the magistrate for another purpose.

(6)    A party on review is not limited to the points of law argued before the magistrate except to the extent that any new point of law would necessitate:

(i)    reliance upon material not before the magistrate;

(ii)    reliance upon material tendered to the magistrate for a purpose other than that for which it was tendered where it was tendered for a particular purpose.

(7)    In relation to material proffered to but not accepted by the magistrate, the court will hear submissions as to whether it should be considered as evidence in these proceedings.

(8)    In relation to wide ranging or discursive or voluminous material the court may, if it accepts it, limit its consideration of such material to those elements to which it is directed by the parties.

By way of elaboration of the last observation, the court is not required on review to read every page of the volumes of articles and other material which may have been put before the magistrate nor to traverse every word of the evidence at the s 19 hearing, which in this case occupied some 69 days. The parties will define the issues they want to raise and the court can be directed to those matters of real significance to the question of eligibility for surrender. It can have regard also, as in this case, to facts and issues not in dispute as well as to referenced summaries of the testimony provided by counsel.

What was said, in Brandy, of the invalid review process in the Racial Discrimination Act 1975 (Cth) is also applicable to the present case save that the review process under the Extradition Act does not allow for new evidence (at CLR 262; ALR 12 per Mason CJ, Brennan and Toohey JJ):

In exercising its jurisdiction to review a determination by the Commission, the starting point is the existence of a determination and the evidence given to the Commission in the inquiry which led to the making of the determination. The Federal Court must start with this material; indeed, unless the court gives leave to adduce new evidence, that will be the only material before the court. It is true that the court is empowered to review all issues of fact and law. That, we think, is a facultative provision; whether the court does review all issues of fact and law will be a matter for it in the light of the arguments put to it. Whether it is incumbent on a respondent to give grounds or the like for a review is something on which the Act is silent. This may well be deliberate, in order to avoid argument that the review is by way of appeal. At the same time, the court does have the determination and the evidence before the Commission and it is clear that the court must have regard to that material.

The review process was there held to be invalid because the commission’s determination under review was to be registered and able to be enforced as if it were an order of the Federal Court. That involved an impermissible exercise of judicial power by the commission. That deficiency, however, does not detract from the observation quoted about the way in which the legislation contemplated that the review process was to be carried out. And, given their analogous structures, that, in my respectful opinion, can be a guide to the exercise of the review process under the Extradition Act. Unlike the Brandy case no difficulty arises by virtue of the nature of the proceedings before the magistrate and the magistrate’s decision as it is not in dispute that they are administrative and not judicial.

32    I respectfully adopt the approach set out by French J in these passages.

33    The United States submitted (at [15]):

15.    The material before Judge Riethmuller satisfied each of the jurisdictional facts contained in s 19(1) of the Act.

(a)    In relation to section 19(1)(a) of the Act, on 10 July 2017, Judge Riethmuller remanded the Applicant in custody under s 15 of the Act.

(b)    In relation to section 19(1)(b) of the Act, the Minister for Justice issued a notice under s 16(1) of the Act on 28 July 2017 in relation to the Applicant.

(c)    In relation to section 19(1)(c) of the Act, on 15 August 2017, the Applicant applied to Judge Riethmuller for proceedings to be conducted under section 19 of the Act.

(d)    In relation to section 19(1)(d) of the Act, the Applicant had from 15 August 2017 to 23 October 2017 to prepare for the s 19 eligibility hearings. In that time, the Applicant filed materials. The Applicant therefore had reasonable time in which to prepare for the conduct of the section 19 proceedings.

(footnotes omitted)

34    I accept those submissions, they are consistent with the evidence before this Court. Aside from his immunity arguments (which I dealt with in Castle No 1), and a brief submission about his inability to prepare (which I deal with below), the applicant made no challenge to these matters.

35    The s 19 Judge was satisfied the United States had produced the relevant supporting documents, as required by s 19(2)(a) of the Extradition Act. Again, aside from what the applicant said about Ms Yu, which I deal with below, there was no challenge by Mr Castle to this aspect of the s 19 Judge’s decision. I am satisfied that all the “supporting documents” for the extradition request by the United States, as the Extradition Act defines that term, were produced before the s 19 Judge, and were before this Court.

36    The United States submits the s 19 Judge was correct in being satisfied that, in accordance with Article XI of the Treaty on Extradition between Australia and the United States of America (Washington, 14 May 1974) 1976 ATS 10 as amended by the Protocol amending the Treaty on Extradition between Australia and the United States of America (Seoul, 4 September 1990) [1992] ATS 43, read with s 19(2)(b) of the Act, and on the basis of the affidavit evidence given by Ms Stier and Ms Hemesath, which I have read, there was evidence that there were reasonable grounds to believe Mr Castle had committed the identified extradition offences.

37    The s 19 Judge was satisfied of dual criminality for the purposes of s 19(2)(c) of the Extradition Act. Again, there was no challenge by the applicant to the s 19 Judge’s findings. In the written submissions of the United States, the equivalent Victorian offences were set out in two tables. The United States noted, and had submitted to the s 19 Judge, that the evidence was that since the extradition request in relation to Mr Castle had been received by Australia at some time between 28 March 2017 (being the date of the United States document constituting the request) and 28 July 2017 (being the date of the s 16 notice), the local offences for the dual criminality requirement needed to be offences that were a part of the law of Victoria between the entire period of 28 March 2017 and 28 July 2017. Those were the offences set out in the table.

38    It is not necessary to refer to those tables in detail, because Mr Castle did not challenge any of the s 19 Judge’s findings on dual criminality, and I am satisfied on the material before this Court that those findings were correct.

39    Therefore, I turn to consider the matters which Mr Castle did raise as part of his s 21 review, to the extent I have not done so above, or in Castle No 1.

Allegations of unlawful conduct by the s 19 Judge

40    On the assumption, favourable to Mr Castle, that each of these matters can be considered as part of this proceeding in an exercise of this Court’s jurisdiction under s 39B of the Judiciary Act, I do not accept that any of the matters raised by Mr Castle in his submissions about the “unlawful conduct” of the s 19 Judge should result in his order being set aside, nor is there any basis for any other relief in relation to the s 19 proceedings, whether in a form sought by Mr Castle, or otherwise.

41    Specifically, in relation to the s 19 Judge’s refusal to allow Mr Matthews to be called as a witness, I consider in the circumstances there was no denial of procedural fairness to Mr Castle in that decision. That could be the only basis under s 39B of the Judiciary Act to interfere with the s 19 Judge’s decision. It may be possible also to characterise refusing to allow a witness to be called as a contravention of the obligation in s 19(1) of the Extradition Act to conduct proceedings to determine eligibility for surrender, and especially but not only s 19(1)(d), which requires the s 19 Judge to be satisfied that a person subject to an extradition request has had a reasonable time to prepare for the conduct of the s 19 proceedings, including allowing any necessary adjournments. Since in my opinion there was no denial of procedural fairness to Mr Castle, I also find there was no contravention of s 19(1), nor any failure by the s 19 Judge to be satisfied of the matters in s 19(1)(d), by the s 19 Judge refusing to allow Mr Matthews to give evidence.

42    At the 23 October 2017 hearing, the following exchange occurred about Mr Matthews being called as a witness. Mr Castle had been explaining to the s 19 Judge what the International Treasury Control was and who created it. He was, as I understand it, spending a lot of time in his submissions on this matter (an approach of which the s 19 Judge was critical), because, as Mr Castle explained at page 19 of the transcript (with the error appearing in the original):

Of fundamental importance, it is clear neither Australia nor the United States are in their legal right to issue arrest warrants on James Christopher Castle and/or Lara Ann Castle, regardless of whether or not they have been previously noticed of any status, because of our international protected persons status.

43    In other words, Mr Castle’s submissions were concerned with the issue that he has always placed front and centre of his objections to extradition: namely that he (and, originally, his wife before she consented to her extradition) were internationally protected persons who were immune from the extradition process.

44    During these submissions, Mr Castle was critical of the material adduced by the United States, which contested the existence and character of the International Treasury Control, and in this context Mr Castle went on to refer to an affidavit from David A Sale, the individual Mr Castle identified as the chairman of the International Treasury Control. The s 19 Judge asked if Mr Sale was to give evidence, and Mr Castle responded that he had given an affidavit and was not to give evidence. It was at this point that Mr Castle stated:

At this time, we would like to call ahead and call to the stand Lord Gordon Matthews, agent for the ITC, to go ahead and provide this court with the authenticity and verification it so sorely requires.

45    There is no debate that Mr Matthews was in the hearing room, and was ready and able to give evidence. The s 19 Judge asked Mr Castle to sit down as he was about to give a ruling. Mr Castle persisted with the question whether Mr Matthews could “take the stand”, and the s 19 Judge again asked him to sit down, informing counsel for the United States that he did not need to hear from her. The s 19 Judge then gave the following ruling:

HIS HONOUR: I’ve sat and listened to what’s said to be an explanation of some powers of a group said to be called the International Treasury Control organisation. I’ve received documents from someone, purporting to be a representative of that organisation. The submissions that have been made are replete with complex legal language and complex legal ideas. However, they make no real sense to anybody who has studied or practised the law. They proceed on some common themes that we see employed by confidence tricksters. They rely upon the ideas that this is secret and high level, thus explaining why ordinary lawyers, even those quite learned in the law, know nothing of it and fail to grasp what it is said to mean, or fail to understand it as a plausible or rational legal argument. It plays upon the idea that the Castles have become a part of an elite group within society filled with special powers and privileges. It proceeds upon a common trick of shifting the obligation for establishing any rights or entitlements into an obligation upon others to disprove bizarre claims, constantly phrased by way of an obligation upon others to verify these bizarre claims that are made about the Castles, and, as occurs in this case, by way of quite impractical means, for example, requiring or demanding of others to verify the Castles’ claims with Her Majesty Queen Elizabeth. It also proceeds upon threats that rejection is an affront to a powerful and elite group, in order to attempt to dissuade those who would reject these bizarre claims from doing so, for fear that they themselves may be at risk from some secret and powerful elite within society.

I find it very sad that the Castles have been taken in by these confidence tricksters, and have been taken in to such an extent that it presents now almost as some form of psychosis – a bizarre belief that is unshakeable, even by the obvious difficulties that the arguments present. I do not accept the arguments. I reject them entirely, and I see no purpose to be served by hearing evidence from somebody to further put forward such bizarre and obviously unsustainable claims. Yes. Next matter.

46    Mr Castle continued to attempt to press his objection. There then followed some debate backwards and forwards between the s 19 Judge, Mr Castle and Ms Karakasevic, with the s 19 Judge continuing to express the view that Mr Castle and Ms Karakasevic (who is referred to as “Ms Castle” in transcript of the hearing) had been taken in by confidence tricksters. Relevantly to another argument raised by Mr Castle on the s 21 review, after this debate and the s 19 Judge’s several remarks about confidence tricksters, the following exchange occurred:

HIS HONOUR: That’s the way the confidence tricks always work, and that’s what has happened here: you have both been taken in by this idea, but it’s not real.

MS CASTLE: I hear – how do you - - -

MR CASTLE: How can he make that statement?

MS CASTLE: Please let me speak. How is it that you know that? Because you, in your private capacity, are asked to make a decision of conscience, which – a personal capacity of conscience. You’ve gone onto the internet, and you’ve looked to see what the ITC is. We all know that the internet is not a legitimate research location. A comparison by logic based would be to say, “Elvis – let’s look up Elvis online. Elvis is still alive. That’s nonsense; therefore, Elvis doesn’t exist.” That’s a faulty premise, a faulty logic process. We are unusual fish. You’ve somehow ended up with us before you here in this court.

HIS HONOUR: Yes, but, ma’am, you can similarly say how do you know that Shiva doesn’t exist, or how do you know that god does or doesn’t exist.

47    The debate (principally between the s 19 Judge and Ms Karakasevic) continued, until the following statement by Ms Karakasevic:

HIS HONOUR: Well, you’re trying to establish one that I just don’t think exists in the sense that you think about it.

MS CASTLE: Right.

MR CASTLE: And that’s - - -

MS CASTLE: And that’s where it’s so difficult for us, because you’ve taken on a bias by reading stuff on the internet, and you know that’s not a legal source. You know that. You don’t go – you’ve presented – for example, when you were curious about - - -

HIS HONOUR: Well, ma’am, all you need to do is show me the proper legal argument to explain it, and I will apply the law.

48    For completeness, I also note that the arguments which Mr Castle and Ms Karakasevic persisted with in these exchanges before the s 19 Judge were arguments involving, expressly or impliedly, Australian legislation such as the Crimes (Internationally Protected Persons) Act 1976 (Cth) and the Diplomatic Privileges and Immunities Act 1967 (Cth), and the international Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, opened for signature on 14 December 1973, 1035 UNTS 167 (entered into force 22 February 1977) and the Vienna Convention on Diplomatic Relations, done on 18 April 1961, 500 UNTS 95 (entered into force on 24 April 1964). These are all matters, the relevance of which to Mr Castle’s extradition I considered and determined, adversely to Mr Castle, in Castle No 1.

49    It is plain from my reasons in Castle No 1 that, in substance, I am of the same view as that reached by the s 19 Judge: namely that Mr Castle does not enjoy any immunity from the extradition process on the basis of his asserted status as an internationally protected person. He has not proven, as I found in Castle No 1, that he enjoys such a status as it is relevantly defined in Australian law. Despite Mr Castle’s views to the contrary, it is indeed Australian law which governs his situation. Insofar as Australian law has recognised and implemented certain aspects of international law, or international agreements, concerning the status of certain people, that status may be recognised under Australian law and by Australian courts. Mr Castle has not proven he falls into any of the categories currently recognised by Australian law. Even if he did, it is by no means clear that his asserted status as an “internationally protected person” would give any such person immunity from the extradition process under Australian law.

50    There was no denial of procedural fairness to Mr Castle in refusing him leave to call a witness whose evidence could not be relevant to any issue properly before the s 19 Judge. The matters for the s 19 Judge were the matters set out in ss 19(1) and (2) of the Extradition Act:

(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 Circuit Court 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 or Judge 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 that 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.

51    Mr Matthews’ evidence was not relevant to any of those matters. Rather it was, as Mr Castle himself said, relevant to whether Mr Castle (and, at the time, Ms Karakasevic) was an “internationally protected person” who was immune from the extradition process under the Extradition Act, and so (Mr Castle’s argument went) the s 19 Judge had no jurisdiction to make orders (including a warrant of committal) over him.

52    While evidence going to the existence of the jurisdiction of a judge or magistrate nominated under ss 45A or 45B of the Extradition Act to conduct extradition proceedings might in theory be admissible in a s 19 hearing, in this case the s 19 Judge effectively decided that Mr Castle’s jurisdiction arguments should be rejected. I have found that approach was correct in Castle No 1. Accordingly, having made that ruling, there was no denial of procedural fairness to Mr Castle by the s 19 Judge in refusing to hear from a witness whose evidence only went to the argument just rejected. Nor was there any contravention of any overarching fair hearing obligation which may be implied from the terms of s 19(1) of the Extradition Act, assuming favourably to Mr Castle that such an argument could be made (which it has not been).

53    Mr Castle’s next argument was that the s 19 Judge had himself consulted material on the internet about the International Treasury Control, and this had led to some kind of bias or error, or (I infer) was itself responsible for the s 19 Judge not accepting what Mr Castle and Ms Karakasevic had said about the International Treasury Control. This argument is based on a factual contention – namely that the s 19 Judge did look at material himself on the internet, outside what was in the evidence before him. In particular, Mr Castle pointed to the following part of the transcript of the s 19 hearing:

HIS HONOUR: Ms O’Gorman, don’t I have to proceed on the basis that whilst it

appears that they’re suffering some sort of psychosis about the law, generated by this group, which seems to have some following on the internet and it seems prima facie is really just absolute bunkum, that that puts them in the category of sometimes garrulous and difficult to unrepresented litigants and it may have hidden what possibly is an arguable point among all of this rubbish. And so I have to give them at least some opportunity to articulate what they say. I’m going to put him on a strict time limit.

54    The other evidence to which Mr Castle could point for this, to take the matter beyond sheer speculation on his part, was the transcript, and in particular the ruling and the two other extracts I have set out above. He also referred to references to the internet made in the correspondence from Ms Yu, however I do not consider any such reference by Ms Yu could be probative of the question whether the s 19 Judge himself consulted the internet.

55    I am not prepared to find as a matter of fact that the s 19 Judge privately looked at internet sources about the International Treasury Control, or about any matter raised by Mr Castle and Ms Karakasevic, such as the existence and role of David A Sale. Still less am I prepared to find as a fact that the s 19 Judge used the results of any such searches in his reasoning process or to make findings or rulings. That would be a very serious finding to make, because it would mean the s 19 Judge had strayed outside the evidence adduced before him and beyond the task committed to him by the Extradition Act. There is no basis in the extracts set out above, nor in any other part of the material, for such a finding. Rather, Mr Castle and Ms Karakasevic themselves put plenty of material, and many arguments, before the s 19 Judge and I am satisfied it was upon those matters that he based his rulings and his observations such as those about “confidence tricksters”.

56    However, on these matters, I do accept it is difficult for Mr Castle to hear his arguments, which he has put a great deal of effort into making and appears to have sincerely advanced, described by the s 19 Judge as “rubbish”, and to have the s 19 Judge tell him he and his wife were the victims of confidence tricksters. It may have been better if such remarks were not made by the s 19 Judge. However, their making did not lead to any error in his approach, nor to any miscarriage of his task under s 19 of the Extradition Act which would require this Court to quash the s 19 decision.

57    In relation to Ms Yu, and the correspondence from her which appeared in the affidavit material upon which the United States relied, Mr Castle explained in oral submissions that her evidence was hearsay, and told the court that Ms Yu was nowhere to be found when his wife’s attorney sought to locate her. Statements of this kind strayed beyond submissions and into the field of evidence, and the United States correctly objected to them. Those factual assertions are not before the Court in any admissible form.

58    The United States also informed the Court that the correspondence from Ms Yu was in an affidavit that was read in an earlier bail application by Mr Castle, but she was not a deponent in the s 19 hearing.

59    I accept that is the case, and it is true that in Mr Castle’s written submissions it appears that it is this correspondence he complained about – because, he stated, Ms Yu referred to having undertaken a “Google” search for David A Sale and the International Treasury Control. Insofar as Mr Castle’s complaints are directed to this document, they must be rejected as the affidavit exhibiting Ms Yu’s letter was not read before the s 19 Judge on the s 19 proceedings to determine eligibility for surrender, as opposed to being read in opposition to Mr Castle’s bail application. Nor is it before this Court. Mr Castle also referred to Ms Yu in the context of an affidavit filed by the United States on the jurisdiction question, also an affidavit of Ms Lisa Hemingway. So far as I can see, there are no references to Ms Yu in this affidavit nor in the exhibits.

60    At times, Mr Castle also appeared to make submissions about his identity not having been established, or about having a different identity. His arguments were not so much about “mistaken” identity, but rather about him possessing different kinds of identities, embodied in a single person. For example, his reply submissions stated:

Administrative proceedings require all parties to be fictions. James Christopher, Castle, the real man, has at all times steadfastly vetoed any such claim he is a the person (fiction) named in the complaint. He has also refuted and objected to any presumption or implied contracts of the court to being a trustee of the fiction named in this matter. James Christopher, Castle, the real man, retains all his rights by continuing to hail UCC 1-308, without prejudice. No man has placed a claim against the man James Christopher, Castle.

(errors in the original)

61    Of course, the irony in Mr Castle’s submissions about his identity is that his basic argument – that he should be released by reason of the arguments he presented in this proceeding – assumes and relies on the correctness of his identity. Putting that to one side, the straightforward answer to these arguments is the one upon which the United States relied: namely, that questions of identity form no part of the s 19 function, and therefore no part of this Court’s function on a s 21 review. It is necessary only to reproduce this paragraph from the Full Court’s judgment in Marku v Republic of Albania [2013] FCAFC 51; 212 FCR 50 at [62]:

First, although the identity issue did not arise in Kainhofer, the High Court’s reasoning emphasises the limited role and function of the s 19 magistrate. As the primary judge found at [105], Kainhofer requires the s 19 magistrate to assume (and not independently determine) that the person on remand is validly remanded and is an extraditable person. The analysis and findings in Kainhofer concerning the s 19 magistrate’s limited role and function cannot be reconciled with the appellant’s contention that the s 19 magistrate has jurisdiction to determine whether the person on remand is the person who has been convicted or accused of the extraditable offence.

62    The Full Court in Marku made a number of observations about other ways in which a person who alleges she or he is not the person actually sought for extradition might challenge her or his extradition, but it is not necessary to refer to those here.

63    Mr Castle also contended the s 19 Judge had failed to grant an adjournment of the s 19 hearing. When given the opportunity to develop this in oral submissions, Mr Castle stated the reason he contended that the s 19 hearing should have been adjourned was because the s 19 Judge did not have jurisdiction over him. This is not a matter relevant to any obligation to conduct a fair proceeding under s 19(1) (assuming in Mr Castle’s favour that there is such an obligation), nor to the matters of which the s 19 Judge must be satisfied in s 19(1)(d) of the Extradition Act.

64    However, relying more specifically on s 19(1)(d), Mr Castle further contended that he had not had “reasonable time” to prepare for “any of these hearings”, and referred to what he contended were the limited facilities available to him in prison. A number of the matters that Mr Castle refers to in written submissions appear to relate to preparations for the hearing on the s 21 review and the hearing on the jurisdiction question, rather than the s 19 hearing. I have referred to Mr Castle’s submissions in relation to access to facilities in prison above at [3]. Mr Castle also referred in oral submissions to prison conditions that he contended had impacted on his appearance at a bail hearing on 10 July 2017. However, on the s 21 review, Mr Castle did not direct the Court to any evidence capable of demonstrating that he did not have reasonable time to prepare for the s 19 hearing. Mr Castle has at all times been able to produce voluminous material both to the s 19 Judge and to this Court. Much of what has been produced to this Court has been found to be irrelevant, or unpersuasive. However, the amount of material, and its complexity, demonstrates Mr Castle has been able to prepare the case he wishes to present, both before the s 19 Judge and before this Court.

Extradition objection

65    There are several difficulties confronting Mr Castle with his argument based on s 7 of the Extradition Act. These matters were not prominent before the s 19 Judge, and have really come to the fore during the s 21 review.

66    In his submissions, Mr Castle relies on ss 7(a), (b) and (c). I have set out s 7 of the Extradition Act at [19] above.

67    However, in his submissions Mr Castle does not go much beyond re-phrasing the terms of ss 7(a)-(c). He refers to the extradition offences as being “political offences” but does not explain how this is so. They are certainly not offences of a political character on their face (such as treason), and there is nothing in the evidence to suggest that they are offences allegedly committed for political purposes or reasons: see generally the explanation of these two kinds of political offences (“pure” and “relative”) in Dutton v O’Shane [2003] FCAFC 195; 132 FCR 352 at [185]-[186]. These matters cannot be established by mere assertion, which is all that Mr Castle sought to do. He did not, for example give any specific evidence on the s 19 hearing about his political opinions, the circumstances of the conduct said to constitute the extradition offences and whether he engaged in the conduct for political purposes (having as I understand not admitted he engaged in the alleged conduct at all), nor about how any or all of the conduct constituting the extradition offences related to the political opinions he held.

68    Mr Castle submits the United States has a “political agenda” but once again, beyond the assertion, he adduced no evidence or material before the s 19 Judge to establish this. To the contrary, the evidence and material almost entirely concerned the International Treasury Control and Mr Castle’s asserted role in it, for the purposes of trying to persuade the s 19 Judge he was immune from the extradition process.

69    During oral argument, I asked Mr Castle to indicate to the Court where he raised these extradition objections before the s 19 Judge. While conceding he did not refer to s 7 of the Extradition Act itself, Mr Castle identified various parts of the transcript of the s 19 hearing where he submitted he was intending to raise an extradition objection. For example, the following passage:

MR CASTLE: - - - they accused us of pretty much everything that the banks have been proven in the court of law in the United States to have done to homeowners. During the tail end of when we were doing this process it became evident that there was malicious intent on the banks to not only shut it down but to viciously come after those involved, of which I was one. I received threatening phone calls. I received information, from a very good friend of mine with FBI contacts, that I had better put my family in a safe spot, as well as a private investigator friend of mine, with high level Justice Department contacts, that there it’s a political matter, and there’s going to be hell to pay, is the phrase he used.

70    These sorts of general comments, without any basis in any evidence adduced, were insufficiently connected with the terms of s 7 and there is no error in the s 19 Judge not identifying them as objectively raising anything which could be considered an extradition objection for the purposes of s 7 of the Extradition Act.

71    Further, there was this passage:

HIS HONOUR: There’s nothing about the offences that appear to make them categorisable as a political offence.

MR CASTLE: No. On the contrary, your Honour.

HIS HONOUR: The argument - - -

MR CASTLE: It – it is a political aspect. It is very much a political animal.

HIS HONOUR: The argument - - -

MR CASTLE: Everything involved with it has become political and can be got –and can be discussed at – ad nauseum as to what has transpired with whistleblowers in the United States. Literally 90 per cent of the whistleblowers that have come forward in the United States have either been fired, or harassed, or – what was the other word?

MS CASTLE: Sued.

MR CASTLE: Sued by their employers. In addition to that, because of the typical power and authority that these entities from which the whistleblowers have – have blown the whistle upon, they’ve taken it upon themselves to go after these individuals personally, through political actions, one of which is a very, very public case of Catherine Austin Fitts who used to be sub-secretary of the Housing and Urban Development in the United States. She became a whistleblower and was subsequently fired, financially ruined, and has come back on her own two terms eight years later with a report that she puts out called The Solari Report, which is a financial and political commentary report that is very well respected throughout the community.

72    As I pointed out to Mr Castle during oral argument, in this passage he is speaking about other people he identifies as whistle-blowers, not about himself. Certainly there was no evidence before the s 19 Judge in terms of the conduct said to constitute the extradition offences which could possibly have justified Mr Castle’s description of these people as whistle-blowers. In the s 21 hearing, Mr Castle attempted to re-interpret what was in this extract of transcript so as to suggest he intended these remarks to be about himself, not others. That is a reconstruction after the event. There were some assertions before the s 19 Judge by Mr Castle that he was himself a whistle-blower. However, there was no evidence to support such an assertion, beyond general statements such as that he intended to “blow the lid off” the “fraud in the mortgage industry”. When such general statements are compared with the allegations in the statement of conduct (which I have set out in Castle No 1 and above), it can be seen that they did not merit any serious consideration by the s 19 Judge, nor by this Court. Even if one were to take what he put to the s 19 Judge in submissions as his evidence (which is in itself something of a leap), what Mr Castle said was plainly framed mostly as commentary about the situation of other people in the United States, not himself, and demonstrated no rational connection to the conduct alleged to constitute the extradition offences.

73    The transcript shows that Mr Castle continued in a similar vein before the s 19 Judge but there is no need to reproduce any more here. He and Ms Karakasevic then also spoke to the s 19 Judge about their fears of torture on return to the United States:

It would be irreparable, yes, because of the nature of the cases and the accusations levelled. The amount of time that would be potentially imposed upon an individual if so convicted would be so substantial that the continued perceived and expected harm and therefore torture would – would continue to the point of absolutely no return from any – any potential of returning to society as a productive member, to which I have been all my life, and simply act as a beacon of determent for anybody willing to raise their voice and speak out against fraud in the banking industry.

74    This passage appeared to be about Mr Castle’s fears concerning the length of any sentence that might be imposed, rather than any matter which could conceivably arise under s 7 of the Extradition Act.

75    It is also important to note that in the supporting documents, and in the affidavits of Ms Stier and Ms Hemesath, there is nothing to suggest Mr Castle engaged in any conduct “speaking out” against the banking industry, which formed part of the factual allegations in the extradition offences. Nor did Mr Castle lead any evidence to suggest this is what had occurred. The evidence in the s 19 supporting documents disclosed allegations of fraudulent conduct, with no political overlay whatsoever.

76    Further, even assuming any political opinions held by Mr Castle could be identified from the evidence before the s 19 Judge, which as I have noted above, is a difficult task, I accept the submission of the United States that Mr Castle has not established any connection between the political opinions he asserts, and the punishment or treatment he contends he will experience in the United States, for the purposes of s 7(c) of the Extradition Act. The connection is required to be a causal one. As French CJ explained in Republic of Croatia v Snedden [2010] HCA 14; 241 CLR 461 at [23]:

The words of s 7(c) require attention to be given to the existence of a causal connection between apprehended punishment and the political opinions of the respondent.

Conclusion

77    Whether Mr Castle’s arguments are approached through the prism of s 21 of the Extradition Act, or through the prism of s 39B of the Judiciary Act, they must fail. There is no basis to quash the order of the s 19 Judge.

78    I am comfortably satisfied that it is appropriate to confirm the decision made by the s 19 Judge that Mr Castle was eligible for surrender to the United States. The letter from the s 19 Judge to the Attorney-General (pursuant to s 19(9)(c)) which is in evidence is not dated, but refers to a warrant issued by the s 19 Judge on 8 December 2017. This is also the date on which the s 19 Judge convened a hearing and gave his decision in relation to Mr Castle, concluding the reasons he gave by stating:

As I am satisfied that each of the requirements of the Act have been satisfied in this case, and that I have dismissed the other arguments raised by Mr Castle, I formally determine that he is eligible for surrender under the Extradition Act, and I will therefore execute the relevant documents necessary under the provisions.

79    The warrant issued by the s 19 Judge pursuant to s 19(9)(a) is, as I have noted, dated 8 December 2017. This is the order which this Court confirms, pursuant to s 21(2)(a) of the Act.

80    For the purposes of s 21(6)(g), the Court determines that James Christopher Castle (also known as Chris Castle or James Castro) is eligible for surrender, within the meaning of s 19(2) of the Extradition Act, to the United States of America in relation to the following extradition offences:

(a)    one count of conspiracy to defraud the United States in violation of Title 18 United States Code (U.S.C.) 371;

(b)    one count of conspiracy to commit bank fraud and false making of lending agency writings in violation of Title 18 U.S.C. section 371;

(c)    15 counts of bonds and obligations of certain lending agencies, in violation of Title 18 U.S.C. section 493;

(d)    21 counts of bank fraud in violation of Title 18 U.S.C. section 1344(1); and

(e)    one count of transactions in criminally derived property in violation of Title 18 U.S.C. section 1957.

81    Mr Castle’s application under s 39B of the Judiciary Act will be dismissed, the Court not being persuaded there are any jurisdictional or other legal errors in the decision of the s 19 Judge.

Associate:

Dated:    14 December 2018