FEDERAL COURT OF AUSTRALIA

Tsvetnenko v United States of America [2019] FCA 206

ORDERS

THE COURT ORDERS THAT:

1.    The application for review of the third respondent’s bail decision be dismissed.

2.    Costs be reserved.

3.    The parties file minutes of proposed directions for programming the review of the second respondent’s warrant decision within 10 days; such directions to be determined on the papers if not agreed.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

INTRODUCTION

1    The applicant seeks judicial review of the second respondent’s decision (a magistrate based in Canberra) to issue a warrant for the applicant’s arrest and the third respondent’s decision (a magistrate based in Perth) (the Magistrate) to remand the applicant in custody rather than on bail. The applicant is remanded in custody until 12 April 2019 when further proceedings are listed. These reasons deal only with the second aspect of the applicant’s application for judicial review (the bail review). The application was listed as a matter of urgency. The application is supported by an affidavit numbering over 700 pages from the applicant’s solicitor, Mr Murray.

2    Amongst numerous arguments advanced for the applicant, two dominate. The first is that a magistrate, in consideration of whether ‘special circumstances’ exist in respect of an applicant for bail, must have regard to authorities from the courts of the United States of America. Secondly, it is argued that the risk of flight being low or very low is in itself a special circumstance. In these reasons, I consider and reject both of these arguments.

3    The Magistrate’s decision was not tainted by jurisdictional error as asserted. His Honour approached his evaluative task correctly. The considerations in extradition bail applications are different from those applicable to domestic bail applications. In this instance, sympathy for the applicant’s children in particular is inevitable. It is also inevitable that the applicant would have more comprehensive medical treatment options if he were on bail. Be this as it may, the legislature has prescribed that bail be available only in special circumstances in extradition cases. All of the factors advanced for the applicant, even taken together, do not, as understood from High Court authority, when measured against the circumstances of other extraditees (sometimes referred to as ‘extradites’) constitute ‘special circumstances’ warranting bail.

BACKGROUND

4    The applicant was born in Russia on 27 March 1980, in what was then the former USSR. In 1992, at the age of 12, he immigrated to Australia and attended school in Perth. The applicant became an Australian citizen in 1994.

5    After completing secondary school in Perth, the applicant thereafter completed the first and second years of an engineering and electronics course at a university. He commenced work as a computer programmer and later undertook contract information technology work.

6    The applicant’s now expired Australian passport was issued on 31 May 2000. In 2002, he met and commenced a relationship with a woman who later became his wife. They are presently separated.

7    In about 2005, he began his own computer software development and information technology consulting business. In 2008, the applicant was married and on 29 July 2008, his Russian passport was issued. His Australian passport was replaced on 3 December 2009.

8    Between 2010 and 2011, the applicant’s wife established and commenced promoting the ‘House of Zhivago’ fashion label and business. During that period, the couple made visits to the United States to promote the House of Zhivago business label.

9    In 2010, the applicant suffered from anxiety attacks, panic attacks and depressive symptoms and was referred to a psychotherapist. He attend periodic psychotherapy sessions between 2010 and 2017.

10    The couple visited the United States in December 2010, but left a month later. The applicant did not visit the United States between March 2011 and October 2013. It is at about this time, from 2011 to 2013, that the first respondent alleges that the applicant committed criminal offences contrary to United States law.

11    The applicant and his wife’s first child, a daughter, was born on 15 January 2013. The applicant is closely involved with her care. In April 2013, his Russian passport was replaced by a further Russian passport.

12    In October 2013, the couple visited the United States again and left less than a month later.

13    On 26 May 2015, by a sealed complaint filed in the United States District Court (USDC), criminal proceedings were commenced against persons other than the applicant in respect of alleged offences with which the applicant was later charged by a second indictment filed on 29 June 2016 (the United States proceedings). Two of the applicant’s co-accused, Mr Lee and Mr Goff, named in the superseding indictment were arrested in California on 28 May 2015. In June 2015, Mr Lee and Mr Goff were granted bail by the USDC on conditions agreed by the prosecution.

14    On 17 August 2015, the second child, a son, was born in Perth. The applicant has also continued to have a close relationship with his son.

15    On 9 September 2015, the United States filed an indictment (the first indictment) charging persons with offences which, by the second indictment, the applicant later became co-accused.

16    In September 2015, Mr Wedd, another person with whom the applicant later became co-accused of the same offences, was arrested in the United States. Mr Wedd was granted bail on the same day by the USDC. A similar process occurred in relation to Mr Eromo.

17    On 2 October 2015, Messrs Wedd, Eromo, Goff and Lee were arraigned on the charges that were the subject of the first indictment. They all entered pleas of not guilty. Bail was continued for all of them by the USDC.

18    From 26 December 2015 to 3 January 2016, the applicant travelled to and from Singapore. He has not left, nor attempted to leave, Australia since that time.

19    On 28 April 2016 and 19 May 2016 respectively, Mr Assifuah was arrested in Nevada and bailed by the USDC.

20    On 29 June 2016, the second indictment was filed ‘sealed’ in the United States proceeding in the USDC containing charges against nine defendants, including the applicant.

21    On 22 July 2016, the second indictment was ‘unsealed’. On the same day, the United States Attorney for the Southern District of New York announced by way of press release that the applicant had been charged with committing offences in the Southern District of New York. Over the following days, the applicant learned of the charges against him in the United States and of the prospect of being arrested in connection with the proceedings for his extradition to the United States. During that time, he engaged and instructed Ms Wong Yang, an attorney in the United States, to advise and act for him in respect of the charges against him in the United States. In or around late July 2016, Ms Wong Yang contacted the Assistant United States Attorneys responsible for the prosecution of the applicant in the United States.

22    On 28 July 2016, Mr Thompson, a co-accused in the United States proceedings, was arrested in California, but released on bail. The next day, Messrs Wedd, Lee, Goff, Thompson and Assifuah were arraigned on charges contained in the second indictment. All entered pleas of not guilty with bail being continued.

23    On 22 August 2016, Ms Wong Yang, in correspondence with the United States Attorneys, referred to discussions about the applicant’s ‘potential self-surrender in New York’, noting that ‘the framework for a reasonable bail package has largely been established, if not finalized’.

24    On 30 August 2016, she sent a further letter to the Assistant United States Attorneys, observing that:

As you know [the applicant] lives in Perth, Western Australia, where he conducts his business affairs, and cares and provides for his young family. [The applicant] and his Australian counsel have relayed that he will not flee or leave his home or young family in Perth and that he is not a flight risk. If, in the pursuit of the extradition of [the applicant], the United States were to seek and obtain a warrant for his arrest, he would willingly surrender his passports to Australian authorities and surrender himself into custody in Australia at an agreed time and place.

25    On 2 September 2016, the applicant visited Dr Hardcastle, consultant orthopaedic surgeon, concerning worsening chronic back pain. Dr Hardcastle examined and assessed the applicant and had regard to:

(a)    a CT scan of his lumbar spine, taken on 19 May 2010 showing, ‘advanced degeneration at L5/S1’; and

(b)    an MRI scan of his lumbar spine, taken on 20 January 2016, showing ‘advanced degenerative changes at L5/S1’.

26    Dr Hardcastle expressed the view that ‘[s]urgical fusion at L5/S1 … is going to be a probable future outcome’ and recommended that in the interim the applicant should have regular hydrotherapy. After that consultation on 2 September 2016, the applicant commenced attending regular hydrotherapy sessions as recommended in an effort to manage his chronic back pain and forestall spinal fusion surgery. He continued those sessions until prevented from doing so by his arrest.

27    On 27 September 2016, the applicant was assessed by consultant forensic psychiatrist, Dr Pascu.

28    On 4 May 2017, the applicant’s Australian-based solicitors wrote to an officer of the Australian Government Attorney-General’s Department, specifically the office of Extradition and Mutual Assistance within the International Crime Cooperation Central Authority, indicating that if, in pursuit of the applicant’s extradition, the United States were to seek and obtain a warrant for his arrest, the applicant would willingly:

(a)    surrender his passport to Australian authorities; and

(b)    surrender himself into custody of Australian authorities at an agreed time and place.

The applicant, through his solicitors, offered to attend an Australian Federal Police station at an agreed time to avoid any need for his formal arrest to undertake not to leave Perth and, if necessary, to surrender his passport in advance of being delivered into custody. The applicant’s solicitors invited the Australian Government, on behalf of the first respondent, to contact them prior to the execution of any warrant in respect of the applicant to discuss how the matter, including the question of bail, may be progressed.

29    On 11 May 2017, the Authority acknowledged receipt of the 4 May 2017 letter.

30    On 5 June 2017, the first respondent filed an indictment, the superseding indictment, in the USDC. The USDC issued a warrant for the applicant’s arrest on charges contained in the superseding indictment on the same day.

31    Specifically, the applicant is wanted in the United States to face prosecution in respect of the following alleged offences:

Count 5:    conspiracy to commit wire fraud in violation of Title 18, United States Code (18 USC);

Count 6:    wire fraud in violation of 18 USC;

Count 7:    aggravated identify theft in violation of 18 USC;

Count 8:    conspiracy to commit money laundering in violation of 18 USC;

Counts (5), (6) and (8) carry a maximum of 20 years imprisonment. Count (7) is punishable under United States law by a term of 2 years imprisonment.

32    On 2 August 2017, Messrs Wedd and Thompson were arraigned on charges in the superseding indictment, entering pleas of not guilty, with bail being continued. The same events occurred for Messrs Lee and Goff on 3 August 2017.

33    On 14 September 2017, the Western Australian Department of Justice, Corrective Services, advised the applicant’s lawyers that there were no hydrotherapy facilities in, or available to any person being held in, any prison in Western Australia.

34    The applicant was further assessed by Dr Pascu on 8 January 2018. Dr Hardcastle also re-examined the applicant on 23 April 2018. The following day, Dr Hardcastle produced a further report confirming his diagnosis and recommending continued hydrotherapy.

35    By request dated 9 July 2018, the first respondent asked Australia formally in writing to extradite the applicant to the United States.

36    In late August 2018, the applicant and his wife became separated. However, the applicant continued and continues to have a significant role in caring for both children.

37    On 14 September 2018, the applicant was further assessed by Dr Pascu. In her subsequent 20 December 2018 report, Dr Pascu observed that the applicant ‘appeared quite distressed’ and spoke of his depression.

38    Dr Pascu recorded that the applicant’s anxiety had escalated, that ‘he continued to feel anxious, worried and depressed’ and that his anxiety attacks and panic attacks had become more prominent a few months ago.

39    In her report, Dr Pascu opined that:

58.    Given the history of depressive episodes, together with being separated from his family and more significantly his children he may become a risk of developing major depressive episodes with [sic] could increase the risk to harm himself.

…

60.    Having experience with providing psychiatric sessions to prisons over a number of years and more recently reviewing people in prison for psychiatric assessments and reports, I am aware that with the level of health, mental health and psychological care available in prison [the applicant] is unlikely to receive the required level of individual psychological care.

61.    It is likely that he will not receive the psychological support that he requires, as the provision of mental health and psychological services in prison is focused on managing people with behavioural disturbances, who create problems in prison and this leads to people like [the applicant], who do not create problems, being completely overlooked.

62.    Furthermore given his high profile and wealth [the applicant] might be vulnerable and a target to exploitation in prison. Considering all these limitations, in my opinion he is more likely than not to develop further depressive episodes in the future, more so without the ongoing support from his family, parents, his children and his work.

…

64.    Considering all the information available to me in [the applicant’s] case, I am of the view that the following clinical and psychosocial factors will contribute to addressing his treatment needs, with overall improvement in his and his family’s psychological wellbeing:

-    he does have a history of generalised anxiety disorder with history of somatic, panic symptoms and recurrent depressive symptoms, reactive to psychosocial stressors, the ongoing uncertainty of his situation and the recent relationship breakup. There is a biological vulnerability, which continues to predispose him to more severe depressive episodes.

…

40    On 6 November 2018, a warrant for the applicant’s arrest was issued in the Australian Capital Territory by the second respondent.

41    On 20 December 2018, the applicant was arrested and remanded in custody until 14 January 2019, when he appeared before the Magistrate in the Perth Magistrates Court.

RELEVANT LEGISLATION AND PRINCIPLES

42    Relevantly, s 15 of the Extradition Act 1988 (Cth) provides:

15    Remand

(1)    A person who is arrested under an extradition arrest warrant shall be brought as soon as practicable before a magistrate or eligible Federal Circuit Court Judge in the State or Territory in which the person is arrested.

(2)    The person shall be remanded by a magistrate or eligible Federal Circuit Court Judge in custody, or, subject to subsection (6), on bail, for such period or periods as may be necessary for proceedings under one or more of sections 15A, 18 and 19 to be conducted.

…

(6)    A magistrate or eligible Federal Circuit Court Judge shall not remand a person on bail under this section unless there are special circumstances justifying such remand.

(Emphasis added.)

43    This application involves consideration, at fact and at law, of ‘special circumstances’ in s 15(6) of the Extradition Act.

44    The bail review application is pursued by the applicant pursuant to s 39B(1A) of the Judiciary Act 1903 (Cth), which provides as follows:

39B    Original jurisdiction of Federal Court of Australia

Scope of original jurisdiction

…

(1A)    The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a)    in which the Commonwealth is seeking an injunction or a declaration; or

(b)    arising under the Constitution, or involving its interpretation; or

(c)    arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

…

45    It is common ground that if a decision-maker falls into an error of law, causing that decision-maker to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or at least in some circumstances to make an erroneous finding or to reach a mistaken conclusion which materially affects the exercise of power, that exercise exceeds authority or power and, therefore, the decision-maker falls into jurisdictional error. Such jurisdictional error will invalidate any order or decision made: Craig v South Australia (1995) 184 CLR 163 per Brennan, Deane, Toohey, Gaudron and McHugh JJ (at 179). There can be various kinds of error and the errors may overlap. As noted in United States of America v Green (2009) 257 ALR 252 by Perram J (at [12]), where a magistrate is acting under s 15(2) of the Extradition Act, he or she is doing so in an administrative capacity.

46    Part of the complaint of the applicant in this case is that the decision made was unreasonable. Unreasonableness is a conclusion to a decision which lacks an evident or intelligible justification: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 per Hayne, Kiefel and Bell JJ (at [76]). There are some cases in which it may not be possible to say which of a number of possible errors were made but the result itself bespeaks error. In such a case ‘error must be inferred’: Li per Hayne, Kiefel and Bell JJ (at [85]).

47    The foregoing are general administrative law principles relevant to this application, but there are many cases dealing much more specifically with interpretation of the Extradition Act, which will fall for consideration in the course of evaluating the applicant’s arguments.

‘Special circumstances’ and bail cases

48    The leading authority is United Mexican States v Cabal (2001) 209 CLR 165, where the High Court of Australia (Gleeson CJ, McHugh and Gummow JJ) observed relevantly in relation to ‘special circumstances’ (at [61]):

First, the circumstances of the individual case are special in the sense that they are different from the circumstances that persons facing extradition would ordinarily endure when regard is had to the nature and extent of the extradition charges. This means that the circumstances relied on must be different in kind from the disadvantages that all extradition defendants have to endure. To constitute “special circumstances”, the matters relied on “need to be extraordinary and not factors applicable to all defendants facing extradition”. Secondly, there must be no real risk of flight. Absence of a real risk of flight is ordinarily a necessary but not a sufficient condition of bail. When there is a real risk of flight, ordinarily bail should be refused. Further, the risk of flight should be considered independently of the effect of the proposed bail conditions. In this area of law, the history and character of the defendant and the potential punishment facing the defendant are likely to be surer guides to the risk of flight than bail conditions — even rigorous conditions.

(Emphasis added, citations omitted.)

49    In Cabal, the High Court considered a number of situations which had arisen in United States case law. It was held, relevantly:

(1)    A factor which applies to all defendants facing extradition cannot constitute a special circumstance (at [61] citing Matter of Extradition of Morales (1995) 906 F Supp 1368 (SD Cal) (at 1373)).

(2)    It is not necessary to establish that any particular circumstance should be regarded as special; several factors in combination can constitute special circumstances justifying bail (at [52] citing Morales (at 1373)).

(3)    That the extradition proceedings may be lengthy will not constitute special circumstances unless there has been some unusual delay (at [54] citing United States v Williams (1979) 611 F 2d 914 (1st Cir) (at 915); Salerno v United States (1989) 878 F 2d 317 (9th Cir) (at 317); Hababou v Albright (2000) 82 F Supp 2d 347 (DNJ) (at 351)).

50    As noted by Collier J in Taylor v United States of America [2012] FCA 366 (at [24]):

Clearly in each case the existence or otherwise of “special circumstances” depends on the particular facts of that case and the entirety of the circumstances of the applicant must be considered.

(Emphasis added.)

51    However, the following considerations (often focussing on family and health considerations) have featured in previous decisions of this Court where ‘special circumstances’ have been found:

    In Ghodskani v United States of America [2018] FCA 14, Moshinsky J dismissed an application for judicial review where the magistrate considered there to be ‘special circumstances’, namely the applicant’s newborn baby and the applicant’s separation from the baby during custody. This was supported by psychiatric and psychological evidence (which was accepted) which went to the impact of the separation on both the baby and the applicant’s physical and mental health and wellbeing. (Bail was denied because the same considerations that went to a finding of there being ‘special circumstances’ went to a risk of flight.)

    In Green, Perram J concluded (at [37]) that:

Having a close family unit who will seek to ensure [the respondent’s] presence at the eventual hearing, being needed on the farm, having no passport, being confronted with domestic offences which may take some time to come to trial and the proceedings quite possibly not resulting in a custodial sentence are a set of factors which are not, in combination, possessed by extraditees generally or by extraditees sought on rape and reckless endangerment charges.

Further, his Honour considered that:

They sufficiently differ from the position of other extraditees (both generally and in the case of extraditees facing rape and reckless endangerment charges) to be called special and, if necessary, extraordinary

(though his Honour did not consider ‘extraordinary’ was intended to be a superaddition to the word ‘special’).

    In Zentai v Republic of Hungary [2009] FCA 511, Gilmour J at first instance ordered the appellant’s release on bail. This was in light of ‘Mr Zentai’s age and his ongoing severe health difficulties, [which] set him apart from the ordinary case’ (at [5]). Although his Honour noted, there was no clear evidence that his health difficulties could not be managed within the prison system, assisted by a proximate tertiary hospital. His Honour also considered that the considerable complexity of the legal questions involved in Mr Zentai’s case was relevant to the special circumstances. In a subsequent decision, Zentai v O’Connor [2009] FCA 1597, I continued the bail. Bail was unopposed by the Republic of Hungary. Zentai, an octogenarian (twice the applicant’s age) had suffered life threatening incidents.

    In Moloney v New Zealand [2005] FCA 245, Madgwick J ordered that the applicants be released on bail where the magistrate had acknowledged that the case for extradition was finely balanced and there were above average prospects of a successful review, the applicants were people of outstanding character apart from the present allegations’ practically, there were no prospects of flight; and the applicants had previously been on bail and scrupulously complied with bail conditions. It was considered that ‘the applicants are in no sense persons who can be regarded as in the position of the typical putative extraditee’ (at [4]).

    In Kalejs v Republic of Latvia [2001] FCA 676, Kenny J at first instance was satisfied that bail ought to be granted because of ‘the applicant’s advanced age and the evidence concerning his medical condition’ (at [16]).

52    In contrast, in the following cases, ‘special circumstances’ have not been made out:

    In Taylor, Collier J was not satisfied that there were ‘special circumstances’ evidenced from the applicant’s significant business interests in Australia requiring his attention, the applicant’s close-knit family, the applicant’s adherence to previous bail conditions, the applicant’s cooperation with US authorities and the considerable delay between the laying of the charges in 2007 and the extradition proceedings in 2011. Her Honour was not persuaded that any of the factors, either individually or in combination, were in any way ‘different in kind from the disadvantages that all extradition defendants have to endure’ (at [29], citing Cabal (at [61])).

    In Barney v United Kingdom (2012) 215 FCR 570, Robertson J held that the applicant’s claims of a willingness to surrender himself to the authorities and to be held in immigration detention, the applicant’s engagement to be married to a person in Australia, the applicant’s detention in maximum security and not being allowed visits or telephone contact with his de facto partner, the proposed challenge to the extradition proceedings and the absence of any risk to the community did not warrant a finding of ‘special circumstances’.

    In O’Donoghue v Ireland [2009] FCA 394, Barker J considered that the dependency of the applicant’s family on his income and for rent of the family home, the applicant’s previous compliance with bail conditions, the applicant’s ill health, the fact that close family members had either surrendered their passports or had no passports and the fact that – despite interviewing the applicant prior to his departure from Ireland – the Irish Police had not charged the applicant until after he had been living in Australia for two years, were insufficient factors to constitute ‘special circumstances’.

    In Habib v The Kingdom of Belgium [2004] FCA 486, Nicholson J was not persuaded that facts including that the applicant was charged with fraud (and not a ‘serious’ crime) was a special circumstance, although his ability to pay a surety for bail and the lengthy time already spent in custody awaiting extradition were ‘special circumstances’. However, as his Honour did not consider that the applicant’s application for review had strong prospects of success, the application for bail was refused.

    In Haddad v Lyon [2003] FCA 1623, Emmett J considered that being incarcerated in a maximum security prison, being depressed about such incarceration and concern about a spouse being unable to speak English (although able to reside with friends) were not ‘special circumstances’.

THE PRIMARY DECISION

53    The decision under review was extensive, as were the submissions and material put before the Magistrate, including 52 pages of submissions for the applicant and 38 pages of submissions for the first respondent.

54    His Honour noted (at [19]) that the decision to remand the applicant in custody or release the applicant on bail is an administrative decision, not a punitive one. The Magistrate set out some background leading to the arrest of the applicant (at [45]-[60]), including the charges pertaining to the extradition request and then turned to consider the proper interpretation of ‘special circumstances’ within the meaning of s 15(6) of the Extradition Act. He noted that the expression appears in other Extradition Act provisions relevant to other stages of the extradition process, such as ss 19(9A), 21(2B) and 21(6)(f)(iv) of the Extradition Act. Then his reasons turn to the High Court decision of Cabal where the expression was examined, albeit in the context of s 21(6)(f)(iv).

55    As noted in Cabal and Vasiljkovic v Commonwealth (2006) 227 CLR 614 (at [60]), the phrase ‘special circumstances’ seems to have had its origins in extradition law of the United States. As the Magistrate recorded, in Cabal, in understanding the meaning of ‘special circumstances’, the High Court observed that ‘valuable guidance’ could be obtained from the United States cases.

56    The Magistrate discussed [61] of Cabal (set out above at [48]) and noted (at [66]):

The heart of the decision in Cabal, lies in what Gleeson CJ, McHugh and Gummow JJ set out were the two threshold conditions that must be fulfilled before bail could be granted in an extradition bail application. The threshold test or formulae was put in this way at [61]:

First, the circumstances of the individual case are special in the sense that they are different from the circumstances that persons facing extradition would ordinarily endure when regard is had to the nature and extent of the extradition charges. This means that the circumstances relied on must be different in kind from the disadvantages that all extradition defendants have to endure. To constitute “special circumstances”, the matters relied on “need to be extraordinary and not factors applicable to all defendants facing extradition”. Secondly, there must be no real risk of flight. Absence of a real risk of flight is ordinarily a necessary but not a sufficient condition of bail. When there is a real risk of flight, ordinarily bail should be refused. Further, the risk of flight should be considered independently of the effect of the proposed bail conditions. In this area of law, the history and character of the defendant and the potential punishment facing the defendant are likely to be surer guides to the risk of flight than bail conditions — even rigorous conditions.

(Emphasis added, citations omitted.)

57    He continued (at [67]):

At [62] in Cabal Gleeson CJ, McHugh and Gummow JJ also stated relevantly in part:

“Even when special circumstances are proved and there is no real risk of flight, it does not follow that bail must be granted[.] For example, the defendant may pose a risk to the community or a particular individual. In addition, bail must become harder to obtain as the case proceeds through the judicial system …”

58    His Honour was of the view that the two conditions referred to in Cabal (at [61]) were a ‘precondition to the grant of bail’ and that bail principles in ordinary criminal cases were not fully applicable in extradition cases (citing Cabal at [45]).

59    His Honour drew on three points from Cabal. The first was that the High Court expressed the view that although the typical extraditee is a person who has fled from another country after committing a serious crime, granting bail to such a person provides a further opportunity to flee from the reach of the extraditing country. There is an ever present risk of flight in extradition situations, which provides the rationale for the ‘special circumstances’ requirement before bail is granted.

60    The second point identified by the Magistrate was that the Explanatory Memorandum of the Extradition Act and the objects of the Extradition Act had led the High Court in Cabal to accept that bail is ordinarily refused because there is a presumption that a person sought for international extradition is a flight risk (citing Cabal (at [63])). The onus is on an applicant to demonstrate that the grant of bail would be justified on the separate grounds of ‘special circumstances’ and that the person does not present a real risk of flight (citing Cabal (at [70])).

61    The third point was, given the presumption that a person sought for international extradition is a flight risk, the ‘special circumstances’ condition prevents persons being at liberty because there is a very high risk of persons sought for extraditable offences absconding. His Honour stressed, however, that the risk of flight was a separate condition and it is a mistake to conclude that because an applicant has not fled Australia, that the person is not a flight risk in the face of potential extradition. His Honour quoted the following extract from Cabal (at [65]):

…Persons who have fled the extraditing country to avoid justice are persons who are likely to flee again. But it is a mistake to think that a person is unlikely to abscond simply because that person did not leave the extraditing country “to avoid justice”...

(Emphasis added.)

62    His Honour also noted Robertson J’s decision in Barney (at [16] and [22]), where his Honour explained that ‘special circumstances’ in s 15(6) of the Extradition Act is a statutory expression that does not carry the ordinary English meaning of its constituent words. As an expression, it must be understood in the statutory context of the Extradition Act and understood as stated by the High Court in Cabal.

63    What was much at issue in the argument before the Magistrate and in the application before this Court was the question of whether flight risk could be part of the special circumstances considered in s 15(6) of the Extradition Act. The applicant strenuously contended that it could.

64    That view was not accepted by the learned Magistrate who (at [74]) recorded that the applicant had relied on several United States cases identified in Cabal which had been described as giving ‘valuable guidance’ as to what might be ‘special circumstances’. The applicant had also referred to Perram J’s observation in Green (at [23]), where his Honour considered the expression ‘special circumstances’. However, the Magistrate considered that when Perram J observed that the expression ‘special circumstances’ is to be interpreted by reference to notions which involve a ‘keen appreciation of the United States jurisprudence’, that his Honour was simply addressing an assertion by counsel for Mr Green that ‘special circumstances’ was to be interpreted ‘according to its common understanding’. The Magistrate continued (at [75]-[77]):

75.    Moreover, the Applicant’s lead counsel during oral submissions took my attention to parts of many United States cases including as far back as the 1903 when the Supreme Court of United States decided in Wright v Henkel 190 US 40 that in foreign extradition cases courts power to admit person to bail in special circumstances. These cases have been mentioned in detail in the Applicant’s Outline of Submissions at paragraphs [17]-[41] inclusive and further addressed in oral submissions.

76.    It is particularly noted that lead counsel for the Applicant submitted in oral argument that there was “a question that lies between” the Applicant and the Respondent as to whether “an absence of a risk of flight is a special circumstance”. Lead counsel for the Applicant claimed that the United States cases offer guidance to the answer to that question.

77.    Lead counsel for the Applicant mentioned a number of United States cases but it is sufficient to note that by reference to an earlier case of United States case of America v Smyth (1992) 795 Fed Sup 973 at page 976 District Court Judge Caulfield considered that risk of flight as a special circumstance but also that the Judge was certain that the lack of flight risk alone did not constitute sufficient special circumstances. That view was again repeated in case[s] after Cabal namely Re Extradition of Santos 473 F Supp 2d 1030, 1043 (CD, Cal 2006) per Magistrate Judge Wistich. Lead counsel for the Applicant submits that fits with what the High Court has said about how to interpret the [Extradition Act]. From that guidance lead counsel for the Applicant contended that the risk of flight is a circumstance to be considered within the “rubric of special circumstances” but the lack of flight risk alone did not constitute sufficient special circumstances.

65    His Honour rejected the contention that an absence of flight risk could be part of special circumstances. His Honour regarded as being particularly significant that in Cabal (at [57]) the High Court stated:

In Australia, the existence of special circumstances is an essential condition of the grant of bail. It seems proper, therefore, to determine whether special circumstances exist before considering the question of flight, a matter that is highly relevant in the exercise of the general discretion. It may be going too far to say that, if there is any risk of flight, the Act requires that bail be refused, even if there are special circumstances. In a particular situation, the special circumstances may be so cogent that bail should be granted although there is a slight risk of flight. Nevertheless, to grant bail where there is a real risk of flight could only be justified in the most extraordinary circumstances. In the vast majority of cases, the proper exercise of discretion requires the refusal of bail if there is such a risk. To grant bail where a risk of flight exists is to jeopardise Australia’s relationship with the country seeking extradition and to jeopardise our standing in the international community.

(Emphasis added.)

66    On this basis, the Magistrate was of the view that the absence of flight risk was not to be considered as a special circumstance, contrary to those United States cases which might suggest otherwise. His Honour said ‘[b]ut moreover and persuasively, Robertson J in [Barney] at [33] stated very clearly that in light of Cabal “flight risk does not play a part in a “special circumstances”[”]’.

67    As his Honour understood this submission from the applicant, it was to the effect that his Honour was required to have regard to United States decisions in determining what were ‘special circumstances’. This contentious submission was neither rejected nor accepted by the Magistrate, who noted that it was not suggested for the first respondent that it was impermissible to have regard to the United States cases or cases in any other foreign jurisdiction, but that it was not necessary or appropriate to have regard to the United States cases in this instance because the law was that stated in Cabal and applied in subsequent cases in this Court. His Honour noted that recently in Ghodskani, Moshinsky J considered the applicable principle relating to bail under the Extradition Act because of the issues relevant to flight risk raised in that case. His Honour did not consider the United States cases, although he restated the High Court’s observation that those cases ‘give valuable guidance as to what constitutes special circumstances’.

68    Before the Magistrate, the applicant contended that there was a broad consistency in approach to this topic between the United States cases and the Australian cases post-Cabal. His Honour said (at [83]):

At this level of decision making I accept it is unnecessary nor appropriate to definitively reach any concluded opinion whether it is necessary or appropriate to have regard to the United States cases.

69    As will be seen, the applicant takes issue with this approach, contending that in this instance the Magistrate should have had regard to the United States cases or, at the very least, should not have considered that he should not have regard to them. As I pointed out in oral exchanges with counsel, the Magistrate did not reach either of those conclusions, but simply said that he was not expressing a view. As it happens, the Magistrate did have regard to some United States cases, but perhaps not in a fashion that met the expectations or hopes of the applicant.

70    As will be discussed below, the Magistrate was an administrative decision-maker in this instance and was certainly not required to have regard to case law in the United States. The Magistrate was required to apply the legislation as construed by the courts of Australia, notably the High Court and this Court. If the High Court and/or this Court choose to consider United States decisions in explaining or construing certain provisions of Australian legislation, those courts do so acting in a judicial capacity, rather than an administrative capacity. That is sufficiently apparent from Cabal, where it was said (at [75]):

Schoenmakers and Holt have proved influential in the determination of a number of subsequent cases in the Federal Court. But, for the reasons we have given, the two cases contain statements which are wrong and which should not be followed. It is unnecessary to examine the reasoning or decisions in subsequent cases in the Federal Court. In some cases bail has been refused; in others, it has been granted. Earlier in this judgment, we stated the principles that should be applied in determining whether to grant bail under the Act. Together with the assistance to be gained from the United States decisions on “special circumstances”, those principles will enable the Federal Court to produce a consistent body of case law on the bail requirements of the Act.

(Emphasis added, citations omitted.)

71    The Magistrate also noted (at [86]):

Whatever else can be said about the United States cases as a guide to determining the existence of special circumstances it is clear that the United States cases also recognise that the absence of flight risk alone cannot be a special circumstance justifying a grant of bail. In Australia whether capable of being with the rubric of special circumstances or not the fact that there is not a real flight risk that is also not of itself enough to grant bail in extradition cases.

(Emphasis in the original.)

72    His Honour outlined the consecutive steps that he was following in reaching his decision. He said (at [88]-[93]):

88.    First, in determining the existence or otherwise of “special circumstances” depends on the particular facts of the case and the entirety of the circumstances of the Applicant: Taylor v United States of America [2012] FCA 366. Plainly, applications for bail under the [Extradition Act] are based on a factual matrix that inevitably will “always raise matters of difficulty and sensitivity”, as recognised French, Marshall and Kenny JJ stated in McDade v United Kingdom [1999] FCA 1685 at [16].

89.    It follows as part of the first step that having considered the whole of the circumstances that are found to exist then, applying the law as stated in Cabal, the circumstance/s must necessarily then be within (or outside) the statutory expression “special circumstances” justifying a grant of bail. The circumstances need to be extraordinary in the sense used in Cabal at [52] and [61] citing Re Extradition of Morales (1995) 906 F Supp 1368 at 1373 (Morales) (SD Cal); that is “extraordinary and not factors applicable to all defendants facing extradition”. That also probably invites some comparison or contrast with the position of persons facing similar charges: Untied [sic] States of America v Green per Perram J at [35].

90.    This first step involves an assessment of an evaluative character of all the circumstances so found to exist as was aptly described by French J (as he then was) in Republic of Ireland v O’Donoghue [2004] FCA 1753 at [16]. Further, it is clearly recognised that it is not necessary to establish that any particular circumstance should be regarded as special and that several factors or circumstances in combination can constitute special circumstances justifying bail (see Cabal at [52] citing Re Extradition of Morales (1995) 906 F Supp 1368 at 1373 (Morales) (SD Cal) as applied other Federal Court decisions including Untied [sic] States of America v Green per Perram J at [20]). Indeed it has also been consistently said that “No package of circumstances can, or should, be said to be necessary to exist before s 15(6) is enlivened”’: see Mansfield J Hellenic Republic v Konstantinou at [35].

91.    Applying the law in Cabal the onus is on the Applicant to provide evidence that (i) circumstances exist that are different in kind from disadvantages that all persons facing extradition have to endure, and (ii) those circumstances justify remand on bail on that basis.

92.    In the second step I also make clear is that, if after engaging in the evaluative assessment of the whole of the circumstances and if finding that either singly or combination circumstances do exist that properly characterised are within the meaning of special circumstances the Applicant must also further satisfied the condition that there is no real risk of flight.

93.    If upon concluding there are special circumstances and no real risk of flight in a third step I must also consider the exercise of my discretion to make an order that the Applicant be remanded on bail as being appropriate and if so on what terms or conditions.

73    The Magistrate recognised (at [94]) that the applicant contended his circumstances were special, either singularly or in combination. There were 10 such circumstances stressed and the Magistrate proceeded to examine each of them in sequence and then collectively.

74    The general opposing submission from the first respondent was that the matters raised, individually and collectively, were not uncommon in extradition cases. The first respondent supplied a table (not before this Court) setting out Federal Court and High Court authorities on bail in matters arising in the Extradition Act and the circumstances relied on in those cases. This table was only provided as an indication of what might or might not constitute ‘special circumstances’.

75    The first respondent submitted that the pressures pointed to on behalf of the applicant, in one form or another, were faced by many people who were detained, whether it be pending trial or pending extradition. It was emphasised that the circumstances faced by the applicant were no different from those faced by others facing extradition and did not, alone or in combination, satisfy ‘special circumstances’ within the meaning of s 15(6) of the Extradition Act.

76    Adopting the numbers the applicant adopted, the Magistrate evaluated each of the circumstances as follows.

(i)    the applicant has long known and opposed extradition proceedings and has made no effort to avoid them or to escape or flee

77    The Magistrate generally accepted that submission. His Honour did not, however, attach any weight to the first respondent’s failure through Australian-based solicitors to give notice of the proposed arrest. His Honour accepted that the applicant had since July 2016:

(a)    known of pending charges against him;

(b)    known of the prospects of an extradition request and the consequential extradition proceedings; and

(c)    had not made an effort to leave Australia, thereby trying to flee to a jurisdiction which did not have an extradition treaty with the first respondent, such as Russia.

78    His Honour held (at [110]):

… I take the view that I must recognise and act on what the High Court clearly states in Cabal, that in my evaluation, these matters bearing on the question of flight risk [do] not play a part in "special circumstances".

79    The Magistrate did not regard the United States decision of In re Mitchell (1909) 171 F 289 (SD NY) as being binding on him. He also accepted the first respondent’s submission that the applicant’s offering to act in a cooperative manner was not of itself a special circumstance. He did not consider that this cooperation was different in kind from the disadvantages that all extradition defendants had to endure in considering special circumstances. There was nothing special or extraordinary in offering to cooperate. In that regard, his Honour considered he was reaching a conclusion consistent with that of Collier J in Taylor. His Honour said (at [112]-[113]):

112.    I am reinforced in reaching that conclusion in my assessment by noting that in Taylor v United States of America [2012] FCA 366 Collier J reach a similar view when considering a bail application pursuant that ss26(6)(f)(iv) of the [Extradition Act] pending a judicial review of a decision by a magistrate under s19 of the [Extradition Act] that the Applicant Taylor was eligible to be surrendered to the Respondent. In that application the Applicant Taylor had like this Applicant relied on similar factors including that he had after being charged remained in contact with United States authorities and extensively cooperated with in relation to the charges. Whilst the Applicant in this case referred to what Collier J had stated at [25] in this respect I also note what His [sic] Honour said at [29] part of which reads:

“.... The fact that Mr Taylor had co-operated with the US authorities prior to and following the indictment, while potentially testament to his good character, is not unusual or a “special circumstance”:

I note that Collier J citied in that respect O’Donoghue v Ireland [2009] FCA 394.

113.    To constitute “special circumstances”, the matters relied on “need to be extraordinary and not factors applicable to all defendants facing extradition[”].

80    His Honour concluded (at [114]):

Accordingly, in my evaluative assessment I have not been satisfied by the Applicant that having known since July 2016, being a relative long time, of the prospect or proposed extradition proceedings and not making any effort or attempt to escape or flee is not in itself a special circumstance or circumstances. The same can be said of the implication that the Applicant has been cooperative with authorities.

(ii)    the offences for which the applicant’s extradition is sought are ‘bailable offences’ under the laws of Western Australia and the laws of the United States

81    His Honour did not agree that this was a special circumstance. The applicant had relied on a 2010 United States decision of United States of America v Castaneda-Castillo (2010) 739 F Supp 2d (D Mass).

82    His Honour noted that the applicant had not identified any Australian authorities to support the submission that being bailable offences in both jurisdictions was a special circumstance. His Honour drew on Cabal and Ghodskani, saying (at [122]-[124]):

122.    Whether the charged offences pending against the Applicant are bailable in Australia does not in my opinion properly go to the question of whether under the law declared in Cabal there exists special circumstances. I do not accept that the United States cases displace what was said in Cabal at [72] namely in part:

“ ...In extradition cases, the general rule is that defendants are to be held in custody whether or not their detention is necessary. Only when there is something special about a defendant’s circumstances can the question of bail be considered. For that reason, it is erroneous to take into account “those circumstances which ordinarily would fall for consideration on an application for bail where a person is charged domestically for the commission of a crime”.[”]

123.    As pointed out in the Respondent’s submissions this position was reiterated by what was said in Ghodskani v Untied States of America by Moshinsky J at [18] stated:

“[In Cabal] At [72], the High Court acknowledged that a court may take into account those circumstances that ordinarily would fall for consideration on an application for bail where a person is charged domestically for the commission of a crime. The High Court said that such circumstances “may be taken into account in considering the exercise of discretion after special circumstances have been established”. It was emphasised, however, that “they can play no part in determining whether the applicant has established special circumstances”.

124.    Applying the law in Cabal and in my evaluative assessment I have not been satisfied by the Applicant that the offences for which the Applicant’s extradition is sought are “bailable offences” under the laws of Western Australia and the laws of the United States of America is not in itself a special circumstance or circumstances.

(Emphasis added.)

(iii)    the applicant has lived openly and notoriously under his true name and there has been no concealment of his identity

83    Again, in substance, his Honour accepted these factual submissions and noted that there were United States cases in which it was concluded that similar facts may constitute a special circumstance: Artukovic v Boyle (1952) 107 F Supp 11 (SD Cal) per Hall J. That case was decided in 1951 where Hall J in granting bail to a petitioner whom Yugoslavia sought to have extradited on a charge of ‘having murdered or caused to be murdered’ stated (at 15):

Another special circumstance is the fact that while [the petitioner] came to this country under an assumed name, shortly after his arrival ... he disclosed his true identity to the State Department ... Since that time and since he came to California he has lived openly and notoriously under his true name. His wife and his children likewise have lived openly and notoriously under their true names. His children have been attending school under their true names. So there has been no concealment of his identity here and no continued concealment, and there was a revelation of his true identity long before any demand was made, according to the evidence presented before me, for his extradition to Yugoslavia.

84    However, there were, in his Honour’s view, far more pertinent Australian authorities from this Court in which it had been held that living openly and not as a ‘fugitive’ was not a special circumstance, citing Taylor (at [33]); United Kingdom v Forsyth (No 2) (2003) 132 FCR 418 (at [8]); O’Donoghue v Minister for Immigration and Citizenship [2010] FCA 1486 (at [33]); Republic of Poland v Ginter [2009] FCA 262 per Gilmour J (at [13(b)]); and Adamas v The Hon Brendan O’Connor (No 3) [2012] FCA 365 per Gilmour J (at [28(f)] and [29]).

85    In each instance, in those cases, living openly under the applicant’s true name, together with other circumstances, did not amount to ‘special circumstances’. His Honour was not satisfied the matters relied upon were extraordinary and considered they were not factors putting the applicant in a position different from other persons facing extradition. It was not unusual, his Honour said, for proposed extraditees to have been Australian citizens with family connections in Australia, known to have lived openly and not concealed from the authorities their identity, when facing extradition.

(iv)    there is a ‘serious risk of deterioration’ of the applicant’s health if he were remanded in custody rather than on bail

86    It was common ground that ‘imprisonment causing a serious deterioration of health’ may constitute a special circumstance.

87    His Honour was not satisfied however, on the evidence, that if the applicant were kept in custody and not released on bail during the extradition proceedings that there would be a serious deterioration to his health. The evidence did not show that the applicant’s medical conditions could not be adequately managed in custody. His Honour examined the evidence on this topic closely, including further evidence from the Western Australian Department of Justice, Corrective Services, from which his Honour accepted that persons entering a custodial setting undergo a ‘comprehensive nursing health assessment within 24 hours of admission’. Mental health services were also available. There was no cogent evidence that if further referral, treatment or placement was required, mental health services, such as clinical assessment treatment and management, ongoing monitoring and support, counselling and psychiatric services would not be available to the applicant in custody. There were also appropriate arrangements for the taking of medication in custody. His Honour accepted that such services would be more likely to be accessible if he were on bail.

88    His Honour said (at [152]-[153]):

152.    If medically reviewed in a custodial setting I am also unpersuaded that counselling could not be provided despite the view of Dr Pascu that mental health and psychological services in prison are focussed on people with behavioural disturbances who create problems in prison.

153.    After careful reflection and weighting [sic] the competing information I can accept that if the Applicant remains in custody and not receive psychological support that he will require there is likely to be an increase in his level anxiety and depression or put another way develop further depressive episodes. That is to be expected given the prospects that he may be held eligible for surrender and taken to the United States of America to face in due course trial on criminal charges in that country while separated from children and other loved ones. The deterioration of the Applicant’s mental, in isolation from any other cause of any deterioration in his health, is no different from the disadvantages to be suffered in my assessment by any other extradite. In other words the deterioration of health on account of there is likely to be an increase in his level anxiety and depression or that he develops further depressive episodes I would not assess alone as being a special circumstance. If I am wrong in reaching that assessment I would observe that I would consider it as not being a cogent special circumstance.

89    His Honour then proceeded to deal with the lumbar inflammatory disk and accepted that it would not be possible for the applicant to continue with his hydrotherapy program. I set this consideration out in full as there is a challenge to the fact finding (at [160]-[163]):

160.    The evidence from Corrective Services which I accept makes clear that private health service providers such as physiotherapists provide services to person in custody but hydrotherapy is not available. Physiotherapy is a treatment that the Applicant has utilised in the past although he stopped such treatment for some unknown reason in the past over a year before being reviewed by Dr Hardcastle in April 2018. There is no evidence that physiotherapy would not be an effective substitute for hydrotherapy in combination with other exercises as recommended by Dr Hardcastle namely “some walking” and “upper limb exercises”. There is nothing to suggest that those forms of exercise could not be undertaken or that physiotherapy if required could not be provided whilst in custody.

161.    On the whole of the 2 reports of Dr Hardcastle, if remanded in custody I do accept the Respondent submission that Dr Hardcastle’s opinion regarding the need for or timing of other treatments including injections and surgery remain unaffected. On my reading of Dr Hardcastle’s report, realising that he last reviewed the Applicant in April 2018, there is no clear opinion that expresses that continued incarceration of the Applicant in custody is likely to cause a serious deterioration in the Applicant’s health. If that was his opinion then I would have expected that opinion to be made abundantly clear or those legally assisting the Applicant to ensure that such opinion was made clear and known. The expression “would have an impact on [the Applicant’s] treatment and rehabilitation specifically hydrotherapy” in my judgement falls significantly short of enabling me to draw a reliable inference that incarceration of the Applicant in custody is likely to cause a serious deterioration in the Applicant’s health.

162.    In my assessment, the Applicant has not shown that due to his lumbosacral inflammatory disc problem/medical condition, if he is kept in custody and not released to bail during the extradition proceedings, that his medical situation rises to a threshold that I am satisfied the Applicant would be caused a serious deterioration in his health. I am also of that mind even when that condition is considered in combination and account is taken of the circumstance that there is a likelihood of the Applicant developing further depressive episodes as described by Dr Pascu.

163.    In respect to these asserted health concerns the Applicant has not shown that there is any special circumstance in their own respective/combined rights for the purposes of ss15(6) of the [Extradition Act]. As mentioned I certainly do not consider these to be cogent, if they are contrary, to my view special circumstances. The evidence suggests strongly that as a resilient young man these medical conditions can be managed by the Applicant with and the through the services provided by Corrective Services in the discharge of its duty of care while the Applicant remains in custody.

(Emphasis added.)

(v)    the applicant’s family background favours a grant of bail

90    His Honour accepted for the purposes of analysis:

(a)    the applicant has a close supportive family that includes the support of the applicant’s parents;

(b)    despite their separation, the applicant and his wife remain amicable and mutually supportive and both are focused on protecting the wellbeing of their children in a cooperative manner;

(c)    together with his wife, the applicant has had, until his arrest, an ongoing, regular, caring and supervisory role with each of their young children; and

(d)    the applicant has developed natural loving bonds with his children and his children have, to varying degrees, grown dependent on his ongoing care and support which has resulted in negative or adverse impacts both emotionally and mentally on each of their wellbeing since the applicant has been absent and in custody.

91    His Honour also accepted that the applicant’s wife and his mother had noticed changes in the applicant’s children and that they each hold understandable concerns about the children’s behaviour and how they might cope emotionally and mentally in the future in the absence of their father if the applicant remained in custody.

92    It was then noted that the applicant had pointed to several United States and Australian cases which had taken into account an extraditee’s closeness with family members, some of whom were emotionally and mentally dependent on the extraditee, in finding ‘special circumstances’. Although, his Honour noted that this was usually in conjunction with other factors.

93    It was observed, however, that there were, in contrast, decisions of this Court where family connections and dependency, both emotionally and financially, were not considered singularly or in combination to be ‘special circumstances’. For example, in Taylor, Collier J had stated relevantly (at [29]):

I note Mr Taylor’s contentions in relation to the prospective damage to his business affairs should he remain in custody until review of the decision of the Magistrate, however such unfortunate consequences are potentially applicable to any person seeking bail pending review of a determination of extradition eligibility. I also note Mr Taylor’s close family and friendship bonds in his place of residence, but again these advantages are not unusual in respect of applicants in his position, as is clear from such cases as Barney v United Kingdom, Haddad v Lyon and O’Donoghue v Ireland.

(Emphasis added.)

94    His Honour noted, all those cases involved an evaluative assessment of the extraditee’s family background and turned upon particular facts which existed in some cases and not others.

95    His Honour approached consideration of this topic in the following way (at [170]-[172]):

170.    In my assessment, the family background that is characterised by the supportive relationships that pervade the Applicant’s family dynamics, his caring supervisory focus on raising his young children who are dependent emotionally and mentally on the Applicant are not extraordinary or carrying a quality of speciality. As a parent the Applicant is fulfilling the expected responsibility of any and all normal parents whether separated or not from the other parent. These are circumstances, in my opinion generally which are applicable to all persons in the Applicant’s position facing extradition. Inevitable there are unfortunate albeit regrettable impacts or pressures upon loved ones that flow from remaining in custody pending the determination of the surrender in accordance with the [Extradition Act] following an extradition request.

171.    I have disciplined my mind to not allow the sympathy that I necessarily have for the Applicant’s children to determine this application for bail other than in accordance with the law declared by High Court in Cabal. Despite the subjective views of the Applicant’s wife and his mother the sad impacts suffered by his children since their daily physical connections with the Applicant have been severed are not so extraordinary that I would reach another conclusion other than to conclude that the family background do not come within the meaning of special circumstances. There is not any cogent medical or other expert evidence that sheds any significant insight into the psychological impact on either or both the Applicant children although common sense and experience of human affairs would suggest that there is likely to be to some extent such impact.

172.    The regrettable impacts on the Applicant[’]s parents and his wife are not underestimated and no doubt emotionally real for each of them. However, those circumstances, in my opinion generally are applicable to all persons in the Applicant’s position facing extradition. Again the impacts on the Applicant[’]s parents and his wife whilst regrettable are expected normal impacts or pressures upon loved ones that flow from remaining in custody pending the determination of the surrender in accordance with the [Extradition Act] following an extradition request.

(Emphasis added.)

(vi)    the applicant is not and never has been a fugitive from justice

96    Despite citing a United States authority relied upon by the applicant (Re Extradition of Molnar (2002) 182 F Supp 684 (ND III)) in favour of this factor being relevant, his Honour took the view that the contention did not establish any ‘special circumstances’. It was not extraordinary, he said, that offences were alleged to have occurred against the laws of another country by people who have not set foot in that country either at all or at the time of the alleged offending. The High Court recognised the ‘transnational’ nature of criminal activity in Cabal (at [65]) when discussing flight risk.

(vii)    there is uncertainty regarding the merits of the request for the applicant’s extradition

97    The Magistrate recorded that s 19 Extradition Act proceedings had yet been commenced. The applicant was only eligible for surrender if all of the requirements set out in that section were satisfied. No arguments had been advanced specifically on the merits of the request in the context of the bail application before the Magistrate. At this point, there was no decision under review where facts had been found. However, certain assertions were advanced to show uncertainty regarding the merits of the request for the applicant’s extradition. His Honour was not able to evaluate them, but did not dismiss them. Ultimately, it came down to whether the fact that arguable contentions had been raised on the merits of the request was sufficient to constitute special circumstances. His Honour held it was not.

(viii)    the applicant is not a flight risk

98    The applicant contended below, as he did before this Court, that because he has long known of the prospect of the extradition proceedings and made no effort to flee whilst living openly in his own name, that he had demonstrated that he was not a flight risk. Again, the applicant relied on United States authority in Molnar and Wroclawski v United States of America (2009) 634 F Supp 2d 1003 (D Ariz) per Murguia J. His Honour noted that against these cases the High Court in Cabal noted that there was United States authority that special circumstances did not exist when there was a low risk of flight: United States v Leitner (1986) 784 F 2d 159 (2nd Cir).

99    His Honour also had regard to what Robertson J said in Barney (at [33]) and the High Court’s observations in Cabal (at [61]).

100    In Barney, Robertson J said that important to the evaluation was the fact that the applicant there accepted that, in light of Cabal, flight risk does not play a part in ‘special circumstances’. In Cabal (at [61]) it was noted that there were two conditions to be met before bail was granted. First, ‘special circumstances’ must arise and secondly, there must be no real risk of flight. The Magistrate observed (at [191]):

… The risk of flight must as [sic] arise after the conclusion that there are special circumstances. That the risk of flight is separate and not in itself capable of being a special circumstance must be so and must arise from the High Court’s statement “Absence of flight risk is ordinarily a necessary but not sufficient condition of bail”.

101    His Honour took the view that the United States cases relied upon by the applicant were neither guides nor persuasive to the assessment of the special circumstances consideration given what the High Court said in Cabal.

102    Even, accepting for the purposes of this assessment that the applicant was not a flight risk, the Magistrate rejected that the circumstance was within the meaning of ‘special circumstances’ for the purposes of s 15(6) of the Extradition Act. He also noted that if the applicant were properly to be assessed as not being a flight risk, that circumstance alone was insufficient to justify a grant of bail even if guided by the United States cases.

(ix)    the applicant (i) is a citizen of Australia; (ii) is sought for a crime that occurred (if at all) principally – if not exclusively – in Australia; (iii) would be eligible for bail if charged with a similar offence in Western Australia; and (iv) is not faced with opposition from the United States as to his release on bail

103    His Honour accepted that the applicant was an Australian citizen. He seemed to accept that he is alleged to have committed offences ‘principally in the United States’ as pleaded in the indictment (although, as discussed below, this seems to be an oversight as his Honour clearly understood from his reasons and the indictment that it was contended that while the purported offences were deemed to be in the United States, the applicant’s activity was mainly in Australia).

104    He accepted that the applicant would be eligible for bail if similarly charged in Western Australia and probably would also be granted bail without opposition from prosecutors if he surrendered to a United States court.

105    Again, the applicant relied upon United States authority (Matter of Extradition of Sacirbegovic Unreported, United States District Court, SD NY, Maas USMJ, 2 July 2004 (2004 WL 1490219)). However, his Honour said that the applicant did not identify any Australian authority to support the submission that being charged with what would be ‘bailable’ offences in both jurisdictions constituted ‘special circumstances’. His Honour rejected the contention that, ‘being an Australia citizen charged with “bailable” offences in Australia and the United States’ properly went to the question of whether under the law declared in Cabal there existed ‘special circumstances’. He said he was reinforced in his conclusion by the additional view that the position of the United States prosecutors as to whether bail would be agreed to in a United States court was a matter concerning domestic bail in the United States and does not take into account the need for ‘special circumstances’ on the question of bail in an extradition context. His Honour followed what was said in Cabal (at [72]), namely:

[T]he general rule is that defendants are to be held in custody whether or not their detention is necessary. Only when there is something special about a defendant’s circumstances can the question of bail be considered. For that reason, it is erroneous to take into account “those circumstances which ordinarily would fall for consideration on an application for bail where a person is charged domestically for the commission of a crime”.

He noted that this position was followed by Moshinsky J in Ghodskani (at [18]). His Honour concluded that applying the law in Cabal, and in his own evaluative assessment, he was not satisfied ‘that these combined circumstances or singly identified as item (ix) are a special circumstance or circumstances’.

(x)    the applicant (i) has a close-knit family who will seek to ensure his presence at the eventual hearing; (ii) is needed by his family; and (iii) retains no passport

106    His Honour was of the view that those matters were matters which might ordinarily fall for consideration on an application for bail by a person charged with a domestic offence or go to the question of flight risk, which risk does not play a part in special circumstances. He reiterated what was said by Moshinsky J in Ghodskani (at [18]). He also referred to other decisions of this Court, including Ginter where Gilmour J said (at [22]):

The fact that the first respondent has no current Polish or Australian passport is not, inevitably, a barrier to flight. The case of Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 demonstrates this point. Schoenmakers had, as a condition of his bail, been required to surrender his passport to the Australian Federal Police. Nonetheless he managed to flee from Australia to Thailand upon his release on bail from extradition detention: Cabal at [67].

107    His Honour also cited Snedden v Republic of Croatia [2007] FCA 1902 (at [38]), where Cowdroy J, referring to Vasiljkovic (at [60]), stated that the provision of sureties by Mr Snedden’s brother, sister and friend did not constitute special circumstances and did not ‘outweigh the greater public interest in ensuring that Australia’s treaty obligations are met’.

108    His Honour did note that Perram J, in Green (at [24]-[25] and [37]), took the view that a similar combination of factors may constitute special circumstance justifying bail. However, the Magistrate did not consider that the finding in Green was determinative of his own evaluation of the specific circumstances of the applicant. In his Honour’s assessment the applicant having a close-knit family (which had already been considered as part of the family background) did not warrant the characterisation of extraordinary or special and, therefore, did not amount to special circumstances. That remained his view even when coupled with the circumstances that the applicant was needed by his family who would ensure his attendance at court, including by having sureties. Those circumstances were not extraordinary in his assessment and were not circumstances that put the applicant in a position different to other persons facing extradition.

Conclusion on special circumstances

109    His Honour was not satisfied that the applicant had demonstrated the existence of special circumstances within the meaning of s 15(6) of the Extradition Act.

110    His Honour said that none of the matters asserted would be sufficient individually, or compendiously in some combination thereof, to warrant a grant of bail. He said that there would be nothing more and nothing relevant to the concept of speciality as conceived or described by Perram J in Green (at [36]).

Real risk of flight

111    The Magistrate then turned to the question of the real risk of flight. As to that, his Honour was satisfied the legal position was clear as indicated by the High Court in Cabal (at [61]) and the two threshold conditions therein established. Apart from finding that there are special circumstances (matters which ‘need to be extraordinary and not factors applicable to all defendants facing extradition’) there must also be no real risk of flight. His Honour accepted, as judges of this Court had done before him, that he should apply the law expressed in Cabal. It was common ground between the parties that bail conditions could not be taken into account in assessing whether there is a real risk of flight. He also noted that it was impermissible to reason that any resistance to extradition proceedings was indicative of a flight risk, rather, the applicant was entitled to assert his rights in Australia and not surrender without prejudice to his entitlements to test his eligibility to be surrendered. He accepted that the history and character of the applicant and potential punishment the applicant might face if tried and convicted were more reliable guides to assessing the risk of flight.

112    The applicant had submitted that there was no risk of flight or actual risk of flight, putting many of the circumstances again before his Honour. Particular emphasis was on the fact that the applicant had long known of the charges proffered against him in the indictment and the prospective penalty if he was convicted. His Honour also considered further factors which had been advanced by the applicant (at [217]-[218]):

    the applicant’s close family connections, including having young children in Perth;

    the applicant residing openly under his name;

    the applicant not having left or attempted to leave Australia since early January;

    an absence of evidence the applicant relocated in an attempt to conceal his whereabouts;

    the applicant’s solicitors reaching out to offer the surrender of his passports and person;

    no history on the part of the applicant of fleeing justice, breaching bail or concealing his identity; and

    the applicant’s appreciation of the imprisonment faced.

113    His Honour then also considered the respondent’s submissions to the effect that the applicant was a person who has an international travel record and until the issue of the warrant there was no lawful basis to prevent him travelling. He was no stranger to travelling abroad by entering one country from Australia and returning to Australia via another country.

114    His Honour said he did not overlook that the applicant’s travel record was before any of the charges and prior to there being a prospect of extradition. It was true that the applicant had stayed in Perth, as he advised authorities he would do, despite learning of the charges and prospects of extradition.

115    His Honour inferred that the applicant had access to financial means to fund international travel overseas to any part of the world. Although the applicant had not put any direct evidence of his financial standing, his Honour considered that it was most probable that the applicant indeed was the man described by Dr Pascu as a man of ‘high profile and wealth’ taking into account of his history. In relation to that history, his Honour noted that the applicant started his own computer software development and information technology consulting business in 2005 and, more recently, became the co-founder of companies listed on the Australian Securities Exchange and now provided consulting services to the technology industry. There was history of a substantial number of journeys or trips overseas, necessarily meaning some expense to be met for such travel or journeys. He had established a reputation for philanthropy, being a supporter and financial contributor to important incorporated bodies assisting people with disabilities. This again pointed to the applicant being a person with real financial capacity and resources at his disposal. His Honour noted the applicant held a current Russian passport which could be used to travel and enter Russia, a country with which the first respondent had no extradition treaty. His Honour did not speculate as to how specifically the applicant might flee if he were motivated to do so, noting the observations at Ghodskani (at [49]).

116    Ultimately, his Honour expressly cited Cabal (at [70]), where the High Court said:

Unless special circumstances are so cogent and the risk so very low that the proper exercise of the discretion requires the grant of the bail, any real risk of flight should be decisive against the grant of bail.

117    Recognising that there was no ‘bright line principle governing the assessment’, and that the matter was one of evaluation and judgment, his Honour considered that the risk of flight by the applicant was overall apt to be properly assessed as real. It was not fanciful or a bare risk for a man with his financial capacity.

118    Remembering that the question of the risk of flight was to be considered independently of the effect of any proposed bail conditions, in his Honour’s assessment, there was an actual risk in the face of the serious allegations made against him which, if he were convicted, carried the real potential for imprisonment. He said he would not assess the risk given the capacity for the applicant to fund overseas travel to be ‘very low’ (to use the expression in Cabal). He reached that conclusion notwithstanding the applicant’s connections to his family in Perth and what he had done since learning of the charges and prospects of extradition.

Discretionary considerations

119    Finally, the Magistrate had regard to the nature of the residual discretion, revisiting the remarks of the High Court in Cabal (at [62]) to the effect that ‘[e]ven when special circumstances are proved and there is no real risk of flight, it does not follow that bail must be granted’. Although, in his Honour’s assessment, the risk of flight was real (although not acted upon) his Honour turned to discretionary considerations. There had been no suggestion, and his Honour accepted that there was no suggestion or evidence, that the applicant posed a risk to the community or anyone else. Further, relatively speaking, the extradition process was in its early stages. Nonetheless, he noted that the objects of the Extraction Act were not punitive and do not involve an adjudication of guilt. His Honour noted there was a presumption against granting bail in extradition proceedings but for the existence of special circumstances. That said, prima facie, the allegations were extremely serious and potentially the applicant faced a term of imprisonment.

120    His Honour was mindful of Australia’s obligations under the treaty. He found limited guidance from the discretionary factors applied in various cases which turned on their own factual considerations and little could be gleaned. His Honour ultimately concluded (at [233]):

For completeness, if my assessments that there are no special circumstances and risk of [f]light are thought to be incorrect I have nevertheless reflected carefully over the competing relevant considerations and I make clear that my mind has been driven to conclude that bail is not properly to be granted to the Applicant in the exercise of my discretion in any event.

121    The applicant seeks judicial review of the learned Magistrate’s decision.

GROUNDS OF REVIEW

122    The grounds in support of the bail review application are also extensive. They repeat arguments set out above. They are:

1    The Third Respondent’s decision, made on 29 January 2019, to refuse the Applicant’s application for an order that he be remanded on bail pursuant to section 15 of the Extradition Act 1988 (Cth) (Bail Decision) is invalid because it was affected by and reflects jurisdictional error.

2    The Bail Decision was affected by and reflects jurisdictional error because the Third Respondent misconstrued section 15(6) of the Extradition Act.

3    The Bail Decision was affected by and reflects jurisdictional error because the Third Respondent erred in law in holding that:

“absence of [risk of] flight is not to be regarded as a special circumstance”,

within the meaning of section 15(6) of the Extradition Act: Reasons for Bail Decision (Reasons), [78].

4    The Bail Decision was affected by and reflects jurisdictional error because, contrary to the statement of the High Court of Australia in United Mexican States v Cabal (2001) 209 CLR 165, 196 [75] (Gleeson CJ, McHugh and Gummow JJ) that in deciding whether to grant bail under the Extradition Act decision makers should “gain assistance from the United States decisions on ‘special circumstances’”, the Third Respondent erred in law in holding that:

“it is unnecessary nor appropriate to definitively reach any concluded opinion whether it is necessary or appropriate to have regard to the United States cases”:

Reasons, [83].

5    The Bail Decision was affected by and reflects jurisdictional error because the Third Respondent erred in law in holding that the facts:

“that the Applicant has since July 2016 –

a)    known of pending charges against him; and

b)    known of the prospects of an extradition request and consequential extradition proceedings; and

c)    not made an effort to leave Australia thereby trying to flee to a jurisdiction which does not have any extradition treaty with the [United States of America] such as Russia,

… do not go to the question of the existence of “special circumstances”:

Reasons, [109].

6    The Bail Decision was affected by and reflects jurisdictional error because the Third Respondent erred in law in holding that:

“matters bearing on the question of flight risk [do] not play a part in ‘special circumstances’”:

Reasons, [110].

7    The Bail Decision was affected by and reflects jurisdictional error because the Third Respondent erred in law in holding that the circumstance that:

“the offences for which the Applicant’s extradition is sought are ‘bailable offences’ under the laws of Western Australia and the laws of the United States of America is not in itself a special circumstance”:

Reasons, [124].

8    The Bail Decision was affected by and reflects jurisdictional error because the Third Respondent erred in law in holding that:

although “at all material times, and moreover, since becoming aware that there are charges pending against him and that the Applicant was wanted he has not concealed his identity and has lived openly using his true name” [those matters] “go to the question of flight risk and that does not play a part in ‘special circumstances’”:

Reasons, [125], [128] and [132].

9    The Bail Decision was affected by and reflects jurisdictional error because the Third Respondent erred in law in holding that a serious risk of deterioration of the Applicant’s (mental) health, which was the subject of unchallenged and uncontroverted evidence of Dr … Pascu, in particular that the Applicant:

“is at risk of developing major depressive episodes which could increase the risk of self-harm” and

“is highly unlikely to receive the level of individual psychological care he requires if he were remanded in custody”,

was not a special circumstance within the meaning of section 15(6) of the Extradition Act: Reasons, [153].

10    The Bail Decision was affected by and reflects jurisdictional error because the Third Respondent erred in law in holding that, since it is not possible for the Applicant to continue to undergo or receive any hydrotherapy treatment for his chronic spinal condition whilst he is in custody, the serious risk of deterioration of the Applicant’s (physical) health, which was the subject of the unchallenged and uncontroverted evidence of Dr … Hardcastle, was not a special circumstance within the meaning of section 15(6) of the Extradition Act: Reasons, [162].

11    The Bail Decision was affected by and reflects jurisdictional error because, contrary to the evidence, the Third Respondent speculated that physiotherapy may be an effective substitute for the regular hydrotherapy treatment of which the Applicant will be deprived whilst he is in custody: Reasons, [160].

12    The Bail Decision was affected by and reflects jurisdictional error because the Third Respondent erred in law in holding that:

“even accepting for the purposes of this assessment, that the Applicant is not a flight risk, I reject that the circumstance is within the meaning of ‘special circumstances’ for the purposes of section 15(6) of the [Extradition Act]”:

Reasons, [193].

13    The Bail Decision was affected by and reflects jurisdictional error because the Third Respondent erred in law in asking himself the wrong question in respect of the Applicant’s contention numbered (ix) referred to in paragraphs [194] to [200] of the Reasons. It was not in dispute the Applicant did not enter and was not present in the United States of America at any relevant time in 2012 or 2013. The Applicant’s contention numbered (ix) was that the Applicant was sought for alleged criminal conduct (by the Applicant) that occurred (if at all) principally – if not exclusively – in Australia. The Third Respondent misstated (repeatedly) and misunderstood the Applicant’s contention to be that that the Applicant was sought for alleged criminal conduct (by the Applicant) that occurred (if at all) principally – if not exclusively – in the United States of America: Reasons, [194] – [200].

14    The Bail Decision was affected by and reflects jurisdictional error because the Third Respondent erred in law in holding that the Applicant’s contention numbered (x) involved circumstances that:

“are more properly characterised as ones that might ordinarily fall for consideration on an Application for bail by person charged with a domestic offence and all go to the question of flight risk which does not play a part in ‘special circumstances’”:

Reasons, [202].

15    The Bail Decision was affected by and reflects jurisdictional error because the Third Respondent erred in law by failing to consider properly or at all the correct question: whether the Applicant’s circumstances, taken together, constitute ‘special circumstances’, within the meaning of section 15(6) of the Extradition Act, because they involve factors not applicable to all persons facing extradition.

16    The Bail Decision was affected by and reflects jurisdictional error because the Third Respondent erred in law by failing to consider properly or at all the correct question: whether any of the Applicant’s non-special circumstances, taken together, constitute ‘special circumstances’, within the meaning of section 15(6) of the Extradition Act.

17    The Bail Decision was affected by and reflects jurisdictional error because the Third Respondent erred in law by:

(a)    ignoring relevant material;

(b)    relying on irrelevant material;

(c)    making an erroneous finding; and

(d)    arriving at a conclusion that is manifestly unreasonable, illogical and or irrational,

as to whether there is a real risk that the Applicant may flee if he were remanded on bail.

18    The Bail Decision was affected by and reflects jurisdictional error because the Third Respondent relied on irrelevant material, engaged in speculation and thereby erred in law in holding that:

“the applicant holds a current Russian passport. That passport could be used to travel and into Russia a country that the [United States of America] has no extradition treaty with”:

Reasons, [224].

19    The Bail Decision was affected by and reflects jurisdictional error because the Third Respondent erred in law by failing to consider properly or at all the correct question: whether the there is a real risk that the Applicant may flee if he were remanded on bail - as distinct from a merely theoretical or fanciful risk of that kind.

20    The Bail Decision was affected by and reflects jurisdictional error because the Third Respondent erred in law in holding that:

“if my assessments that there are no special circumstances and risk of light (sic) are thought to be both incorrect I have nevertheless reflected carefully over the competing relevant considerations and I make clear that my mind has been driven to conclude that bail is not properly to be granted to the applicant in the exercise of my discretion in any event”:

Reasons, [233].

CONSIDERATION

123    As the parties argued the grounds in groups, it is convenient to treat them in the same manner.

Grounds 1, 2, 3, 5, 6, 8, 12, 14: the proper construction of s 15(6) of the Extradition Act and the relevance of risk of flight to an assessment of special circumstances

124    The applicant contends that the Magistrate misconstrued s 15(6) of the Extradition Act and fell into jurisdictional error in holding that:

(a)    (Ground 3) ‘the absence of [risk of] flight (sic) is not to be considered a special circumstance’;

(b)    (Ground 5) the facts that the applicant has since July 2016 known of relevant charges against him, of prospective extradition proceedings and has made no effort to flee ‘do not go to the question of the existence of “special circumstances”’;

(c)    (Ground 6) ‘matters bearing on the question of flight risk [do] not play a part in “special circumstances”’;

(d)    (Ground 8) the facts that the applicant is not a fugitive and has at all material times, and particularly since becoming aware of relevant charges against him and ‘that the applicant was wanted’, not concealed his identity and lived openly using his true name ‘go to the question of flight risk that does not play a part in “special circumstances”’;

(e)    (Ground 12) ‘even accepting for the purposes of this assessment, that the Applicant is not a flight risk, I reject that the circumstance is within the meaning “special circumstances” for the purpose of ss15(6) of the [Evidence Act]’; and

(f)    (Ground 14) the facts that ‘the Applicant is part of [a] close supporting family and … his retired parents … are continuing to be supportive [and] are willing to … take steps to ensure the Applicant’s appearance at any future court proceedings [and that] that would be made easier given the Applicant has offered at all material times to surrender his passports and would in those circumstances have no passport that might be used to lawfully travel outside Australian [sic] … “go to the question of flight risk which does not play a part in ‘special circumstances’”.

125    The applicant notes, as previously discussed, and consistently with Cabal, the provenance of the ‘special circumstances’ requirement is United States extradition case law. The applicant particularly refers to the High Court’s comments that the ‘United States cases give valuable guidance as to what constitutes special circumstances’ (at [52]) and that in determining whether to grant bail under the Extradition Act ‘assistance [is] to be gained from the United States decisions on “special circumstances”’ (at [75]).

126    The applicant cites Re Extradition of Santos (2006) 473 F Supp 2d 1030 (CD Cal), where the Magistrate Judge Wistrich observed (at 1035):

The party seeking release on bail in an international extradition case must also demonstrate there is no risk that he will fail to appear for further extradition proceedings and that he is not a danger to the community, but those factors are not special circumstances which alone justify release on bail”.

(Emphasis added.)

127    In Wroclawski, Murguia J referred to authorities for the proposition that ‘absence of a flight risk [is] a special circumstance’ and said (at 1007):

The Government contends that whether a relator is classified as a flight risk cannot be considered a special circumstance. Yet, the cases relied upon by the Government belies its position. The Ninth Circuit in Salerno did not state that absence of a flight risk is not a special circumstance. Rather, the court stated that whether someone was a flight risk was not the appropriate test to determine whether a relator is entitled to bail. Nor did the Second Circuit in Leitner hold that absence of a flight risk was not properly considered a special circumstance … The Government has not introduced any persuasive authority for the proposition that absence of a flight risk cannot be considered a special circumstance.

(Emphasis added.)

128    As noted by Collier J in Taylor (at [24]):

Clearly in each case the existence or otherwise of “special circumstances” depends on the particular facts of that case and the entirety of the circumstances of the applicant must be considered.

(Emphasis added.)

129    The applicant says that the following passage from the judgment of Caulfield J in United States of America v Smyth (1992) F Supp 973 (ND Cal) (at 976), is apt to describe the proper construction of s 15(6) of the Extradition Act (and is entirely consistent with the reasons for judgment of the High Court in Cabal):

The list of potential “special circumstances” is not limited to those previously enumerated in published decisions. … The only certain guideline is that lack of flight risk alone does not constitute sufficient “special circumstances”.

(Emphasis in original.)

130    In my view, the Magistrate did not err in stating that absence of risk of flight is not to be regarded as a special circumstance for the purposes of bail under the Extradition Act.

131    At [57] of Cabal, the High Court stated:

The risk of flight

In the United States, the practice is to consider the risk of flight and only then to consider whether special circumstances exist. If there is a real risk of flight, the application for bail is refused whatever the special circumstances may be. In Australia, the existence of special circumstances is an essential condition of the grant of bail. It seems proper, therefore, to determine whether special circumstances exist before considering the question of flight, a matter that is highly relevant in the exercise of the general discretion.

(Emphasis added.)

132    The applicant says that this does not say, and nothing in Cabal says, that flight risk cannot also be considered first, prior to, special circumstances. The applicant orally contends that the High Court’s comment above as to the ‘proper’ approach can be explained by appreciating that in Australia, if one came to the view that there was a real risk of flight, it would not be disqualifying. Perhaps ordinarily, or in the majority of cases, but the applicant submits it is not necessarily disqualifying in Australia as it is the United States. I disagree. The cases have not construed the passage or other passages in Cabal this way. This is for the simple reason that it would not be possible to consider special circumstances ‘before’ flight risk if flight risk was already part of the special circumstances consideration.

133    I accept the contention for the first respondent that the process of considering an application for bail in Australia under the Extradition Act is therefore not identical to the process in the United States. In Australia, the existence of special circumstances is to be considered first, before considering risk of flight, whereas it is the other way around in the United States. That affects the role that the consideration of risk of flight plays in an application for bail and, in particular, its relationship to the consideration of whether there are ‘special circumstances’.

134    In Australia, consideration of whether there are special circumstances is separate from the consideration of the risk of flight.

135    It is also problematic extracting only portions of the content of judgments from the United States intermediate superior courts and applying them to the Australian construction of ‘special circumstances’ without also considering the entire content of such judgments against a full backdrop of the United States’ extradition jurisprudence. That is exemplified in this instance as there is certainly United States authority (for example, Santos (at 1043) (and quoted above)), to the effect that absence of flight risk will not alone justify release on bail.

136    Secondly, if it be the contention that Cabal requires magistrates and eligible Federal Circuit Court judges to follow and apply United States jurisprudence on bail in extradition cases, this cannot be accepted.

137    As noted in Cabal (at [52]), the High Court identified that ‘[t]he United States cases give valuable guidance as to what constitutes special circumstances.’ The Court then considered certain United States cases in the paragraphs that followed, to illustrate some of the circumstances which have been regarded as ‘special’ or not.

138    But what is fundamental in that context is that the High Court then said (at [75]):

Earlier in this judgment, we stated the principles that should be applied in determining whether to grant bail under the Act. Together with the assistance to be gained from the United States decisions on ‘special circumstances’, those principles will enable the Federal Court to produce a consistent body of case law on the bail requirements of the Act.

(Emphasis added.)

139    Nothing in Cabal suggests that magistrates or Federal Circuit judges are bound by foreign jurisprudence in performing their administrative functions under the Extradition Act.

140    Cabal contemplates that the Federal Court, in performing the judicial function of construing and applying the Extradition Act, will produce a body of case law. In producing that body of case law, the Federal Court is bound by the High Court’s decision in Cabal (and other High Court cases), but may have regard to foreign jurisprudence, in particular the United States jurisprudence, in the ordinary way for assistance. A magistrate or Federal Circuit Court judge may also, as part of the administrative function do so, but is not bound to do so. Nor will she or he be precluded from doing so. In this instance, the Magistrate did not suggest he was precluded, but while referring to some United States cases, applied the law as enunciated by the High Court and this Court. This was correct.

141    The magistrate’s function is to perform his or her administrative task according to Australian law. That Australian law is the Extradition Act and the body of Australian case law construing that legislation.

142    It is clear, in my view, where this Court has considered the grant of bail under the Extradition Act, or has reviewed an administrative decision concerning the grant of bail, it has consistently treated consideration of the risk of flight separately from consideration of ‘special circumstances’: see, for example, Haddad; Snedden; Ginter; and Taylor. That is consistent with Cabal.

143    Specifically, in O’Donoghue v Ireland, Barker J stated (at [10]) that the question of flight, and how real the risk of flight is, ‘only arises where special circumstances have first been demonstrated.’ In Barney, it was common ground that consideration of flight risk was not part of ‘special circumstances’ (at [33]).

144    Ground 5 and ground 8 cannot be sustained. It is not unusual or special that a person wanted for extradition may have co-operated with foreign authorities and not made any attempt to flee despite knowing or expecting a request for extradition may be made: see, for example, Barney (at [34]) and Taylor (at [29]). Extradition cases often involve this circumstance. There is obvious merit in attempting to persuade the requesting authorities against an extradition request and against the statutory consequences that follow.

145    The Magistrate also considered and rejected the submissions that the applicant’s close-knit family and other family circumstances were ‘special circumstances’ not encountered by other persons facing extradition. The conclusion was evaluative. It was not a conclusion which misconstrued the effect of s 15(6) of the Extradition Act. Rather, it weighed the circumstances of the applicant against those of others in his position. The process, including the conclusion, has not been shown to reveal jurisdictional error.

Grounds 1, 2 & 4: failure to have proper regard to United States authorities

146    The applicant argues that in light of the content of Cabal (at [52]), the Magistrate fell into jurisdictional error in holding that ‘it is unnecessary nor appropriate to definitively reach any concluded opinion whether it is necessary or appropriate to have regard to the United States cases’.

147    I have addressed this assertion above and it is plain that I reject it as a legal proposition and as a proper construction of the reasoning of the High Court or of the Magistrate. Further, the Magistrate did have regard to the United States cases (albeit senior counsel for the applicant suggested those references were only made selectively): see [84]-[85], [107], [118]-[120], [126]-[127], [134], [148], [166], [175], [182], [188]-[189], [196] and [198].

Grounds 1, 2 & 7: availability of bail for the underlying substantive offences

148    The applicant notes, correctly, that some United States cases have held that where the offence for which extradition is sought is a ‘bailable offence’ under the laws of the requesting country and a ‘bailable offence’ under the (corresponding) laws of the country from where extradition of the alleged offender may be sought, this is a ‘special circumstance’: Re Gannon (1928) 27 F 2d 362 (ED Pa) per Dickinson J (at 362); United States of America v Taitz (1990) 130 FRD 442 (SD Cal) per Magistrate Judge Moskowitz (at 446-447); Matter of Extradition of Nacif-Borge (1993) 829 F Supp 1210 (D Nev) per Judge Pro (at 1221); Morales; United States of America v Ramnath (2008) 533 F Supp 2d 662 (ED Tex) per Magistrate Judge Hines (at 666); Wroclawski; and Castaneda-Castillo.

149    Before the Magistrate, and repeated in this Court, the applicant contends that were the applicant charged under the laws of Western Australia with offences similar to those with which he has been charged in the United States of America, he would be eligible for bail: Pt II of the Bail Act 1982 (WA) and see further s 15M of the Crimes Act 1914 (Cth).

150    Further, in the hypothetical circumstance referred to above, the applicant’s family circumstances would justify a grant of bail. Observations made in Rayney v Western Australia [2011] WASC 3 by Anderson AUJ are apt, the applicant says, to describe his and his children’s circumstances (at [15]):

[T]he welfare of the children will be best served if the family unit is kept together by allowing the applicant to continue his parenting role in the home. … [T]his is an exceptional reason why the applicant should not be kept in custody.

151    Further, there is no doubt that the offences with which the applicant is charged in the United States of America are ‘bailable offences’. The ‘Case Docket’ of the USDC is in evidence and records the progress of the United States proceedings in which the superseding indictment was issued containing the charges against the applicant. Relevant records in that Case Docket in support of the applicant’s contentions on this issue were summarised in the applicant’s written submissions before the Magistrate. These submissions stated (which are reemphasised before this Court), relevantly, that:

[E]ach of the Applicant’s co-accused in the [United States] Proceedings, who has been arrested or otherwise taken into custody in the United States, has been granted bail (on unremarkable conditions agreed to by the Prosecutors).

152    The applicant contended before the Magistrate that, just as it is in United States authorities, the circumstance that the offences for which the applicant’s extradition is sought are ‘bailable offences’ under the laws of Western Australia and ‘bailable offences’ under the laws of the United States is a special circumstance justifying bail.

153    The applicant says, in summary, that the Magistrate fell into jurisdictional error in holding that although the offences for which the applicant’s extradition is sought are ‘bailable offences’ under the laws of the United States and under (corresponding) laws of Western Australia, that circumstance ‘is not … a special circumstance’.

154    This contention must be rejected. At [45] of Cabal, the High Court cautioned against readily applying the principles applicable in domestic criminal cases for bail to those cases concerning the grant of bail under the Extradition Act. At [72], the High Court stated that it is erroneous to take into account the circumstances that would ordinarily fall for consideration on an application for bail where a person is charged domestically for commission of a crime. This Australian binding authority would be sufficient to dispose of the argument but, further (at [55]), the High Court referred to the United States’ case of Matter of Extradition of Rouvier (1993) 839 F Supp 539 (ND Ill), where the fact that the offence may have been bailable in the extraditing country was not a special circumstance. The High Court described Rouvier as one of the cases ‘instructive’ of when special circumstances are not established.

155    I accept the contention for the first respondent that, given that bail is theoretically available for the vast majority of domestic offences in Australia, it is difficult to see how the fact that the person whose extradition has been requested might be bailed if charged domestically with a criminal offence in respect of the conduct or equivalent conduct for which his or her extradition is sought could ever be regarded as ‘different from the circumstances that persons facing extradition would ordinarily endure when regard is had to the nature and extent of the extradition charges’: Cabal (at [61]). It follows that whether or not the person might be granted bail (whether in the requesting state and/or domestically) will not constitute a special circumstance.

156    In Cabal (at [58]-[59]), the High Court explicitly discussed the rationale for refusing bail in just such a context as follows:

The rationale in refusing bail in extradition cases

58    Where a person is found in Australia and an extraditable offence is alleged against him or her, this country is obliged to return that person to the country seeking extradition. Australia therefore has a very substantial interest in surrendering the person in accordance with its treaty obligations. If Australia fails, when requested, to return a person against whom there is probable cause for concluding that he or she has committed an extraditable offence, it breaches its obligations under international law. If Australia fails to comply with a treaty, the rules of international law entitle the other party to the treaty to repudiate or suspend the performance of its own obligations under the treaty. A repudiation or suspension by another country of its extradition treaty obligations to Australia would hinder this country’s ability to enforce its own laws. In an era where much crime is transnational, the breakdown of international co-operation in apprehending criminals would be disastrous for the peoples of the countries concerned. Such a breakdown may do more than inhibit the apprehension of persons who have committed crimes against Australian law. If other countries think it not worthwhile to seek extradition from Australia, Australia may become a haven - at least for a time - for those who have committed serious crimes in other countries. They may well commit similar offences here.

59    If the defendant flees Australia after being granted bail, the expense of enforcing Australia’s treaty obligations has been incurred for no gain to this country. Even if the defendant is re-captured, further public money will have been expended. The cost of extradition proceedings is often substantial. In the present case, for example, there were extremely lengthy proceedings before the magistrate, an appeal to the Federal Court, and an appeal to the Full Court of the Federal Court. In the proceedings before Kirby J, Mexico and the Commonwealth asserted that they were the “beneficiaries of costs orders against Mr Cabal which amount, in aggregate, to about $2m”. But the cost of any extradition proceeding is certain to be considerable. It is obvious that Australia and often the extraditing State may have to spend large sums on extradition proceedings, most of which may be irrecoverable from the defendant. To these costs must be added the cost of keeping the defendant in custody. All this expenditure is put at risk when a defendant is granted bail.

(Citations omitted.)

157    The applicant’s argument does not sit well with this important passage.

Grounds 1, 2, 9, 10, 11: risk of deterioration of health if/while incarcerated

158    The applicant stresses that Dr Pascu gave unchallenged and uncontroverted evidence that the applicant is at risk of developing major depressive episodes which could increase the risk of self-harm if he were remanded in custody. The applicant repeated again the submissions which were before the Magistrate as to the applicant’s health. Here, it is relevant to note again that the expert report of Dr Pascu contains observations and opinions that the applicant:

(a)    suffers from, among other things, a longstanding generalised anxiety disorder - the onset of anxiety symptoms being in early childhood;

(b)    has a history of recurrent depressive episodes;

(c)    has a biological vulnerability which continues to predispose him to more severe depressive episodes;

(d)    is at risk of developing major depressive episodes which could increase the risk of self-harm; and

(e)    is highly unlikely to receive the level of individual psychological care he requires if he were remanded in custody.

159    In her report, Dr Pascu explained that, if the applicant were remanded in custody, in her opinion:

58.    Given the history of depressive episodes, together with being separated from his family and more significantly his children he may become at risk of developing major depressive episodes with [sic] could increase the risk to harm himself.

…

60.    Having experience with providing psychiatric sessions to prisons over a number of years and more recently reviewing people in prison for psychiatric assessments and reports, I am aware that with the level of health, mental health and psychological care available in prison Mr Tsvetnenko is unlikely to receive the required level of individual psychological care.

61.    It is highly likely that he will not receive the psychological support that he requires, as the provision of mental health and psychological services in prison is focused on managing people with behavioural disturbances, who create problems in prison and this leads to people like Mr Tsvetnenko, who do not create problems, being completely overlooked.

62.    Furthermore given his high profile and wealth [the applicant] might be vulnerable and a target to exploitation in prison. Considering all these limitations, in my opinion he is more likely than not to develop further depressive episodes in the future, more so without the ongoing support from his family, parents, his children and his work.

160    Dr Pascu’s report concludes:

In my opinion I am of the view that having the support from his family and more so his two young children, I believe will provide a better, more therapeutic framework for [the Applicant’s] ongoing treatment, overall management and long term rehabilitation.

161    The applicant’s mother gave lay evidence as to the impact remand in custody would have on the applicant’s mental health to a similar effect.

162    The applicant also stresses that Dr Hardcastle gave unchallenged and uncontroverted evidence of a risk of serious deterioration of the applicant’s physical health if he were remanded in custody because the applicant would be unable to continue to undergo or receive hydrotherapy treatment for his chronic spinal condition. The applicant repeats submissions before the Magistrate detailing the findings of Dr Hardcastle regarding the applicant’s ‘inflammatory disease at the lumbosacral level’ and Dr Hardcastle’s ‘diagnosis of a lumbosacral inflammatory disc problem at L5-S1’.

163    The Magistrate had before him detailed submissions, and Dr Hardcastle’s evidence, regarding the applicant’s chronic back problem, his ongoing hydrotherapy treatment and that if remanded in custody, rather than on bail, it would not be possible for the applicant’s hydrotherapy program to be maintained. These were comprehensively laid out in the Magistrate’s decision.

164    The burden of the evidence of Dr Pascu, the applicant’s mother and Dr Hardcastle was, therefore, that there was a serious risk of deterioration of the applicant’s physical and mental health if he were remanded in custody rather than on bail.

165    The applicant says that the United States and Australian authorities have held that where there is a risk of serious deterioration of the extraditee’s health while incarcerated that this is a ‘special circumstance’ justifying bail: Nacif-Borge per Judge Pro (at 1216-1217); Ramnath per Magistrate Judge Hines (at 666); Kainhoffer v Director of Public Prosecutions (1993) 48 FCR 9 per Spender J (at 17-18); and Wu v Attorney-General of the Commonwealth (1997) 79 FCR 303 per Burchett J (at 306-307).

166    The applicant says the Magistrate erred in holding that he ‘would not assess as being a special circumstance’ or ‘a cogent special circumstance’ the risk of which Dr Pascu gave unchallenged and uncontroverted evidence that, if the applicant were remanded in custody, he may develop major depressive episodes which could increase the risk of self-harm.

167    The applicant says the Magistrate also erred in reaching the conclusion he did, despite the certainty that if the applicant were remanded in custody he would be unable to continue to undergo or receive hydrotherapy treatment for his chronic spinal condition (which would likely hasten the applicant’s need for spinal fusion surgery) of which Dr Hardcastle gave unchallenged and uncontroverted evidence.

168    In addition, the applicant argues that the Magistrate erred by speculating that ‘physiotherapy is a treatment that the applicant has utilised in the past although he stopped such therapy for some unknown reason’ and that ‘[t]here is no evidence that physiotherapy would not be effective substitute for hydrotherapy’. The applicant says the uncontroverted and unchallenged evidence before the Magistrate, which his Honour failed to have proper regard, was that:

(a)    physiotherapy afforded the applicant no benefit or only marginal benefit;

(b)    the applicant ceased receiving physiotherapy and commenced undergoing hydrotherapy upon Dr Hardcastle’s expert recommendation;

(c)    specific hydrotherapy is best for the applicant’s current treatment; and

(d)    detention without appropriate facilities (i.e. hydrotherapy facilities) will have an adverse effect on the applicant’s current chronic back condition.

169    The Magistrate set out his understanding of the law and the principles governing the exercise of his power to grant bail in detail in his reasons (at [61]-[93]). As to the process and principles, these paragraphs cannot be criticised. More specifically to these grounds, the exposition was, with respect, plainly correct.

170    The evidence referred to by the applicant in respect of these grounds was considered by the Magistrate in great detail in his reasons (at [135]-[163]). His Honour concluded:

The evidence suggests strongly that as a resilient young man these medical conditions can be managed by the Applicant with and the through [sic] the services provided by Corrective Services in the discharge of its duty of care while the Applicant remains in custody.

(Emphasis added.)

171    It is clear that the applicant strongly disagrees with this assessment. That does not make it susceptible to jurisdictional error. Although the written ground does not stipulate irrationality or legal unreasonableness, the applicant’s complaints as orally articulated would also fall short of establishing these errors. The conclusion expressed deals correctly with the proper inquiry that the Magistrate was to make.

172    Orally, senior counsel challenged the correctness of the finding that it was not clear why the applicant discontinued physiotherapy, asserting that the reason was apparent from the materials, specifically the report of Dr Hardcastle. Even if this were a factual error, it is far from ‘material’ in the sense recently reinforced by the High Court: Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780 per Kiefel CJ, Gageler and Keane JJ (at [30]-[31]), Nettle J (at [41]) and Edelman J (at [46] and [72]). That is so particularly because of the positive finding after detailed analysis that the evidence suggested strongly that the applicant’s medical conditions could be managed with services provided while in custody.

173    These paragraphs of the Statement of Grounds are no more than challenges to findings of fact in the assessments of the evidence by the Magistrate. These findings are not susceptible to a merits review challenge on an application for judicial review.

Grounds 1, 2 & 13: alleged conduct principally, if not exclusively, in Australia

174    The applicant said that he was sought for alleged criminal conduct that occurred (if it all) principally, if not exclusively, in Australia. He says that the Magistrate failed to address properly, or at all, the submission. In so doing, the Magistrate fell into jurisdictional error.

175    The facts that the person whose extradition is sought is an Australian citizen, that the alleged conduct occurred principally or exclusively in Australia and that the person would be eligible for bail if charged domestically are not circumstances ‘different from the circumstances that persons facing extradition would ordinarily endure when regard is had to the nature and extent of the extradition charges’: Cabal (at [61]). They are not special circumstances.

176    In modern times, it is not unusual for extradition to be sought for prosecution for an offence in respect of conduct which occurred entirely outside the territory of the requesting state: see, for example, Ngo v United States of America (2009) 177 FCR 411 and Rojas v United States of America [2019] FCA 22.

177    While there was some confusion on this aspect in the Magistrate’s reasons, it is plain on a fair reading of the whole of the reasons that the Magistrate certainly understood that the applicant is wanted for prosecution in the United States for conduct that occurred while he was in Western Australia (at heading (ix)). It appears, on a fair reading (and was not suggested to the contrary) of [194] and [197] of the Magistrate’s reasons, that the references to ‘United States’ are a slip and should have been ‘Australia’, particularly when regard is had to the fact that the Magistrate (in [194]) accepted the submissions advanced by the applicant.

178    There is nothing at all about this fact that constitutes ‘special circumstances’ for s 15(6) of the Extradition Act and the Magistrates reasons on this topic do not invite the conclusion his Honour fell into jurisdictional error.

Grounds 1, 2, 15 & 16: the proper application of s 15(6) of the Extradition Act

179    The applicant submits the Magistrate fell into jurisdictional error by failing to consider properly, or at all, the (correct) question: whether all of the applicant’s circumstances, taken together, constitute ‘special circumstances’ because, taken together, they involve factors not applicable to all persons facing extradition. It is the circumstances, ‘taken together’, which it is alleged the Magistrate erred in not considering.

180    It is to be noted that the Magistrate expressly concluded in relation to the assessment of special circumstances that ‘none of the matters asserted would be sufficient, individually or compendiously in some combination thereof that would warrant a grant of bail’ (at [209]). The applicant complains, as I perceive it, that there was a failure to give genuine and realistic consideration to the circumstances as a whole and that the very limited suggestion to the contrary could not be seen as satisfying that legal obligation.

181    Undoubtedly the cumulative assessment is essential. I would approach this as being a question of whether the totality of an applicant’s circumstances differ from the circumstances extraditees generally face.

182    In this instance, it is not clear that the Magistrate could do more than he did on the cumulative assessment. That is because he had examined so thoroughly each of the individual grounds asserted by the applicant; some he rejected as being unable to constitute ‘special circumstances’, while others he gave little weight either because they did not differ from the circumstances of other extraditees and/or because he just did not accept the factual foundation. Of course, if each of the individual parts of an argument fails, it is difficult to see how adding the sum of the zero parts will produce a different outcome. But that aside, a fair reading shows close attention being given to family and health considerations, in particular, as would be expected given these more obvious and very personal considerations.

183    To conclude the Magistrate failed to consider the circumstances cumulatively, given the Magistrate’s statement that he had considered all the factors together and given this background, cannot be accepted or justified. It is true that the statement was brief, but given the extent of the underlying analysis on each of the reasons, including those which were not capable of being ‘special circumstances’, one might ask what else could sensibly be added to demonstrate consideration of the grounds collectively. Of course, if there were extra new submissions on the collective effect, they should be considered. Had his Honour’s statement not been made, one could understand the argument. But in this instance it cannot be made good.

184    Further, his Honour’s reasons (at [92]) speak against any suggestion that he was not conscious of undertaking a collective evaluation of the circumstances of the applicant:

[I]f after engaging in the evaluative assessment of the whole of the circumstances and if finding that either singly or combination circumstances do exist that properly characterised are within the meaning of special circumstances the Applicant must also further satisfied the condition that there is no real risk of flight.

(Emphasis added.)

185    The submission that the Magistrate erred in failing to consider the applicant’s ‘non-special’ circumstances, taken together, is also untenable. The Magistrate made clear that ‘none of the matters asserted’ warranted a grant of bail.

186    It is plain that the Magistrate had regard to all of the matters relied upon by the applicant, individually and in combination, but was not satisfied that there existed the requisite ‘speciality’ (at [209], citing Green (at [36])).

Grounds 1, 2, 17, 18, 19: real risk of flight?

187    On this important aspect, the applicant’s argument runs this way:

(a)    in Cabal, Gleeson CJ, Gummow and McHugh JJ said (at [61]) that ‘[w]here there is a real risk of flight ordinarily bail should be refused’;

(b)    however, a risk that is ‘a mere speculative possibility’ is not a real a risk: Hammond v Commonwealth (1982) 152 CLR 188 per Gibbs CJ (at 199);

(c)    similarly, a risk that is no more than ‘a theoretical possibility’ is not a real risk: Hammond per Gibbs CJ (at 199);

(d)    in the administration of justice, there is a longstanding, practical and familiar distinction between a ‘possibility’ and a ‘real risk’: Lee v New South Wales Crime Commission (2013) 251 CLR 196 per Crennan J (at [146]-[148]);

(e)    no evidence before the Magistrate supported a finding that there was a real risk that the applicant would flee if he were granted bail;

(f)    rather than act rationally upon the evidence before him, the Magistrate engaged in idle speculation, specifically, that the applicant ‘could … travel [to] and enter Russia a country that the [United States of America] has no extradition treaty with’ (at [224]);

(g)    the Magistrate’s conclusion that the applicant ‘could’ flee if granted bail is ‘mere speculative possibility’;

(h)    moreover, in holding that there was a real risk that the applicant ‘could’ flee if he were granted bail, the Magistrate:

(i)    failed to discharge his functions ‘according to the rules of reason and justice. That is, ‘according to law’;

(ii)    arrived at a conclusion that is ‘arbitrary, vague and fanciful’;

(iii)    arrived at a conclusion in respect of which ‘it [is] … not … possible for a court to comprehend how the decision was arrived at’; and

(iv)    arrived at a decision ‘which lacks an evident and intelligible justification’. Accordingly, ‘it is not possible to say which of [a number of possible] errors was made, but the result itself bespeaks error’. ‘Error must be inferred’ and ‘it follows [that the Magistrate] did not discharge his functions according to law’ ‘and consequently acted beyond jurisdiction’

(relying on Li per Hayne, Kiefel and Bell JJ (at [65], [76] and [85]).

188    At [227], his Honour concluded that:

[I]n my judgment the risk of flight by the Applicant is overall apt to be properly assessed as real ... I certainly would not assess the risk, given the capacity for the Applicant to fund overseas travel, to be ‘very low’ (to use the expression of the High Court in Cabal).

189    It is worth setting out the assessment by the Magistrate (at [213]-[227]):

213.    In Cabal, Gleeson CJ, McHugh and Gummow JJ at [61] set out the two threshold conditions that must be fulfilled before bail in extradition cases could be granted apart from finding there are special circumstances being matters relied which “need to be extraordinary and not factors applicable to all defendants facing extradition” but “there must be no real risk of flight. It is not for me ponder as an administrative decision maker how that arises given the terms of the [Extradition Act] but to accept as I unequivocally do (as subsequent Federal Judges have done before me) that is the law which I must and will apply. Lead counsel for the Applicant certainly did not invite me to do anything other than determine whether there was a real risk of flight after I squarely raised with him the significance of the submission that real risk of flight has been “shoehorned”: into the “special circumstances” test in the provisions of the [Extradition Act] that refer to “special circumstances[”].

214.    The question of the risk of flight must be considered independently of the effect of any proposed bail conditions. As lead counsel for the Applicant acknowledged it is “forbidden territory” to assess risk of flight by reference to what might be fixed as bail conditions requiring the attendance at any future extradition proceeding. It would be a recognised error to do that as recognise by Perram J in United States of America v Green.

215.    It is also impermissible to reason that any resistance to extradition proceedings is indicative of a flight risk. It is not so indicative. The Applicant is entitled to assert his rights in Australia and not surrender without prejudice to his entitlements to test his eligibility to be surrendered and until that is determined whether he should remain in custody or be admitted to bail: Taylor v United States of America per Collier J.

216.    In determining the question of the risk of flight I accept that the history arid character of the Applicant and potential punishment the Applicant might face if tried and convicted are more reliable guides to assessing the risk of flight.

217.    The Applicant submits there is no risk of flight or actual risk of flight. The Applicant points the whole of the circumstances and highlights certain matters of the fact. The fact that the Applicant has long known the charges preferred against him in the S3 Indictment some of which carry maximum imprisonment terms of 20 years. The fact that the Applicant has faced the consequently prospect [sic] of the extradition proceedings since late August 2016. The fact that the Applicant has very close family connections including very young children in Perth Western Australia. That fact that the Applicant has lived openly under his true name without legal restriction to leave Australia using either of his current passports. The fact that he has not left or attempt to leave Australia since very early January 2016. The fact that there is no evidence that suggests that the Applicant has even moved residence within Australia with any intent to conceal his whereabouts or make it more difficult for any authority to know his whereabouts. At the same time it is the fact that the Applicant has through his legal representatives both in the United States of America and Australia reached out offering to surrender his passports voluntarily and himself to authorities as mutually agreed. It was pointed out that unlike some putative extradites in other cases the Applicant has no history of fleeing justice, breaching bail, changing or assume other names or identities or possessing documents like licences or passports in false name.

218.    It is inferred that the Applicant must appreciate that if he were tried and convicted of any of the charges preferred against him in the S3 Indictment he potentially could be imprisoned for a substantial period of time outside of Australia where his children and loved ones normally reside and would continue their lives while he served a term of imprisonment.

219.    The Respondent points to evidence that the Applicant is a person who has an international travel record and until the issue of the warrant there was no lawful basis to prevent the Applicant travelling. The Applicant is no stranger to travelling abroad by entering one country from Australia and returning to Australia via another country. I do not overlook that the travel record is before he knew of the charges and prospect of extradition. It is also true that the Applicant has stayed in Perth as he advised authorities that he would despite learning of the charges and prospect of extradition.

220.    It is an inference that I draw that the Applicant has access to financial means to fund any international travel overseas to any part of the world. The Applicant has not put any direct evidence of his financial standing. But it is most probable that the Applicant indeed is the man described by Dr Pascu as a person of “high profile and wealth” taking account of his history.

221.    The Applicant started in 2005 his own computer software development and IT consulting business and more recently became the co-founder of companies listed on the stock exchange and now provides consulting services to the technology industry (Murray affidavit paragraph 5(x) and (y)).

222.    There is a history that the Applicant has taken a substantial number of journeys or trips overseas which necessarily would mean some expenses had to be met for such tips or journeys.

223.    The Applicant has established a reputation for philanthropy being a supporter and financial contributor to important incorporated bodies assisting people with disabilities (Murray affidavit paragraphs 11 and 12 and exhibit PHM-2). This points to the Applicant being a person with real financial capacity and resources at his disposal.

224.    It is fact that the Applicant holds a current Russian passport. That passport could be used to travel and enter Russia a country that the Respondent has no extradition treaty with- see Hemmingway Affidavit exhibits LH-1 and LH-2. That said it is of course not necessary for me to consider specifically how the Applicant might flee if he were motivated to do so: Ghodskani v United States of America at [49].

225.    The law has been further clearly stated in Cabal at [70]:

“Unless the special circumstances are so cogent and the risk so very low that the proper exercise of the discretion requires the grant of bail, any real risk of flight should be decisive against the grant of bail.”

226.    I have taken into account of these competing submissions.

227.    Again recognising, as did French J (as he then was) in Republic of Ireland v O’Donoghue, that there is no bright line principle governing the assessment, in my judgment the risk of flight by the Applicant is overall apt to be properly assessed as real. It is not fanciful or a bare risk for a man with his financial capacity. Remembering that the question of the risk of flight must be considered independently of the effect of any proposed bail conditions in my assessment there is an actual risk in the face of the serious allegations made against the Applicant which if he is convicted carries the real potential for imprisonment. I certainly would not assess the risk, given the capacity for the Applicant to fund overseas travel, to be “very low” (to use the expression of the High Court in Cabal). I reach that conclusion notwithstanding the connections to his family in Perth Western Australia and what he has done since learning of the charges and prospects of extradition.

190    The applicant submits that there was ‘no evidence’ before the Magistrate that supported a finding that there was a real risk of flight. That cannot be accepted. Evidence which was capable of supporting that finding was considered by the Magistrate above (at [219]-[224]).