In Australia, a person arrested under an extradition arrest warrant can be remanded in custody, or on bail. However, in contrast to usual domestic criminal practice, a person will not be released on bail unless there are special circumstances. Last year, two matters adjudicated by the Federal Court provided greater guidance on the ‘special circumstances’ requirement and confirmed the limited situations in which bail may be granted.
In Tsvetnenko v United States of America (‘Tsvetnenko’) and Rivas v Republic of Chile (‘Rivas’), following arrest and remand in custody, the applicants applied for bail claiming that special circumstances existed. The magistrates in both instances refused the applications and judicial review was sought before a single judge in the Federal Court, and again before the Full Court in Tsvetnenko. The original decisions were upheld on review.
Background
In Tsvetnenko extradition was sought for charges related to wire fraud, identity theft and money laundering. Before the magistrate, the applicant identified a number considerations for the bail application, namely that: the offences were ‘bailable offences’ under the laws of Western Australia and the United States, the ‘serious risk of deterioration’ of the applicant’s health, the applicant’s supportive family and two dependant young children, and that the applicant was not a fugitive from justice nor a flight risk.
In Rivas, extradition was sought for charges of aggravated kidnapping. Before the magistrate, the applicant identified a number of considerations for the bail application including: the applicant’s poor health, and the complexity, delay and prospects of success in respect to the substantive extradition matter.
The leading authority on bail in extradition matters is United Mexican States v Cabal (2001) 209 CLR 165 (‘Cabal’), where the High Court observed that special circumstances exist when they are different to those a person facing extradition would ordinarily endure, they “need to be extraordinary and not factors applicable to all defendants””.
In both matters the magistrates concluded that the applicants had not demonstrated circumstances different to the kinds of disadvantage all extradition defendants endure.
Considerations by the Federal Court
Nature of the review
In both matters, the Court stressed the evaluation being undertaken was a judicial review pursuant to section 39B of the Judiciary Act 1903 (Cth) limited to jurisdictional error. The jurisdiction of an administrative entity will be exceeded where the decision is affected by:
‘”an error of law which causes it 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” Craig v State of South Australia [1995] HCA.
In undertaking this review, “the reasons of an administrative decision maker are not to be construed minutely and finely with an eye keenly attuned to the perception of error.” It was stressed that the applicants had no ability to challenge the merits of the decision generally.
In both matters the Federal Court found that the applicants had failed to demonstrate jurisdictional error. In Tsvetnenko the applicant claimed the magistrate had failed to proceed reasonably and on a correct understanding of the law. The Full Court noted that while reasonableness may be accepted as a pre-condition to the magistrate’s exercise of power, correctness could not, and thus failed to find any jurisdictional error of law. In Rivas the Court stated that much of the substance of the applicant’s submissions were no more than mere disagreements with the magistrate’s conclusions.
Interpreting and applying “special circumstances”
United States authorities are not binding
In Tsvetnenko the Federal Court in both reviews rejected the applicant’s proposition that Cabal requires magistrates to follow and apply United States jurisprudence in determining special circumstances. Though Cabal stated that United States case law can provide valuable guidance, this did not suggest that magistrates or Federal Circuit judges are bound by foreign jurisprudence. The Regard may be had to the United States’ jurisprudence for assistance; however the magistrate is to perform his or her administrative task according to Australian law.
Risk of flight is not a special circumstance
In Tsvetnenko the Federal Court also rejected the applicant’s proposition that a low risk of flight is, in itself, a special circumstance. In Cabal, the High Court had noted that, contrary to the approach of the United States, it is proper “to determine whether special circumstances exist before considering the question of flight”. The judge in the first review stated that “it would not be possible to consider special circumstances before flight risk if flight risk was already part of the special circumstances consideration” and held that in Australia, special circumstances is a separate consideration. This approach was confirmed by the Full Court.
What amounts to special circumstances?
Health
As noted in Cabal, “a serious deterioration of health” caused by imprisonment would constitute special circumstances. However the magistrate in Tsvetnenko, accepting that the applicant would suffer an increase in his level of anxiety and depression if he remained in custody without support, found that this was no different to what was faced by others held in custody. In relation to his back disc problems, which the applicant claimed required a hydrotherapic treatment not available in custody, the magistrate was not convinced that imprisonment would cause “a serious deterioration of health”. On review, the Full Bench found that these conclusions were reasoned by a reference to the evidence in respect of a factual matter entrusted to the magistrate to evaluate. The conclusions were not outside the bounds of reasonableness.
Similarly in Rivas the magistrate considered the ongoing pain suffered by the applicant, and concluded that there was nothing to support a finding that the applicant would suffer from a serious deterioration of health caused by her incarceration. On review the judge found that the magistrate had considered the material relied on by the applicant and given detailed reasons for rejecting them. The applicant had failed to identify any error in the magistrate’s reasons.
Other circumstances
Furthermore the state magistrate in Tsvetnenko held that it is not unusual or special for a person wanted for extradition to co-operate with authorities. The applicant’s close-knit family and young children were also not circumstances out of the ordinary. On first review, the judge found that this conclusion was evaluative and had not been shown to reveal jurisdictional error.
In Rivas the Federal Court held that the applicant’s denial of the alleged offence was irrelevant to establishing special conditions. Furthermore neither the delay, nor complexity of the applicant’s matter was any different to what any person facing extradition would ordinarily endure. Finally the applicant’s prospects of success in the substantive proceedings, could be a relevant consideration, but without more, would not amount to special circumstances.
Key takeaways
These two cases confirmed the narrow circumstances in which bail might be granted for extradition matters, and the limited scope of review available. Unless the technical grounds for review can be demonstrated a court will not challenge the magistrate’s decision.
These two cases also confirmed that magistrates are not required to consider jurisprudence from the United States and that factors going to flight risk should not inform an assessment of special circumstances. They revealed the severity of the health deterioration an applicant must face before it is consider special, and enumerated a number of other factors which would not considered circumstances out of the ordinary.
