Case: United Mexican States v Cabal [2001] HCA 61 ; (2001) 209 CLR 165
Outcome: applied
In United Mexican States v Cabal [2001] HCA 61 ; (2001) 209 CLR 165, the High Court (Gleeson CJ, McHugh and Gummow JJ) considered the question of whether a person whose extradition is sought ought be admitted to bail under s 21(6)(f). Their Honours identified the tests which need to be applied in such an application as the present, notwithstanding that in that case it was the person whose extradition was sought who was seeking to challenge proceedings on appeal and had applied for bail under s 21(6)(f)(iv). Gleeson CJ, McHugh and Gummow JJ held ( Cabal 209 CLR at 192 [62]) that, before a judge granted bail, the person whose extradition was sought ordinarily would need to show three things: (1) the application for review had strong prospects of success; (2) special circumstances; (3) an absence of risk of flight. 8 In this case, Mr Tervonen need not address the first matter on which he carried an onus because he had succeeded before Gyles J. In my opinion, it is for Finland to show that it has prospects of success on its appeal. It has not been argued that the appeals have no merit. Indeed, they raise important questions of the construction of both ss 19 and 16 . So far as is relevant, the appeal under s 19 from Gyles J's decision, itself, raises questions of significance in the construction of s 19 and the review power. No submission has been made to me to suggest that the appeal is one which would not satisfy any relevant requirement that the extradition country would bear in an application of the present kind. It seems to me that, at least, there is a bona fide appeal with a reasonable basis. 9 The second and third matters upon which Mr Tervonen bears an onus are, as was explained in Cabal [2001] HCA 61 ; 209 CLR 165, somewhat interlinked. The special circumstances relied on must be of a different kind from the disadvantage that all extradition defendants have to endure. They need to be extraordinary and not factors applicable to all persons facing extradition. In addition, there must be no real risk of flight: see Cabal 209 CLR at 191 [61]. 10 As their Honours made clear, the Parliament had in mind that there was a very high risk of persons sought for extraditable offences absconding. They observed that the explanatory memorandum for the Extradition Bill 1987 (Cth) at p 18 noted that, in many cases, the person is in Australia to avoid arrest in the country where he or she is alleged to have committed the offence; that is, the person left the jurisdiction to avoid justice: Cabal 209 CLR at 191 [60]. Their Honours concluded ( Cabal 209 CLR at 194 [70]; see also at 195 [72] and [74]): 'The purpose of the extradition proceedings is set at risk if an applicant is entitled to bail upon proof of special circumstances and a probability that the applicant will not abscond. If there is a real risk that the applicant will abscond, the objects of the Act and the rationale of ss 15 and 21 require the refusal of bail in all but exceptional cases. Unless the special circumstances are so cogent and the risk so very low that the proper exercise of discretion requires the grant of bail, any real risk of flight should be decisive against the grant of bail.' (Their Honours' emphasis.) 11 As I have noted, the present case is somewhat unusual to the general one which their Honours were considering, namely: Mr Tervonen has succeeded, in front of two single judges of the court, in his applications under ss 16 and 19 . However, even if those factors amount to special circumstances, I am satisfied that there is a real risk that Mr Tervonen may abscond. 12 A passport was found in Mr Tervonen's possession when he was arrested. The evidence before me is that it was an Estonian passport in the name of Juri Moskov. Forensic examination suggests it had been altered by the substitution of a new photograph of the passport holder and a change to his date of birth without alteration of the machine readable data on the passport as issued, thereby demonstrating an alteration or unusual disparity between the details apparently recorded on the passport and those previously inserted by the country of issue. In addition, there was evidence in the material provided by Finland, in support of its request for extradition, that Mr Tervonen had made admissions that he had passports from several countries in another name, namely Urmas Murk, including one issued by Estonia. 13 I am positively satisfied that there is a real risk of Mr Tervonen's flight if he is granted bail. I am able safely to conclude that Mr Tervonen has not discharged the onus of showing an absence of risk of flight. 14 I am also mindful that, although he has spent a considerable period in custody since his original arrest in mid-2006, the two appeals will be heard in a reasonably short period of time. 15 In my opinion, I should order that Mr Tervonen be kept in custody until Finland's appeal against Gyles J's decision and the orders made by him on 20 December 2007 is heard. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 15 January 2008 Counsel for the Appellant (respondent on the application for bail): KC Morgan Solicitor for the Appellant: Commonwealth Director of Public Prosecutions Counsel for the First Respondent (applicant on the application for bail): DPM Ash Date of Hearing: 24 December 2007 Date of Judgment: 24 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/2107.html