Republic of Ireland v O'Donoghue [2004] FCA 1753

FEDERAL COURT OF AUSTRALIA

Republic of Ireland v O'Donoghue [2004] FCA 1753 EXTRADITION – bail – arrest of requested person on provisional warrant – arrest under Extradition Act 1988 (Cth) – release on bail by magistrate pending extradition hearing – release on conditions – application by requesting country for judicial review of bail order – whether arguable error in magistrate's finding of special circumstances and no risk of flight – whether balance of convenience favours grant of interlocutory relief – claim of jurisdictional error – arguable case but not warranting grant of interlocutory relief – claim for interlocutory order returning requested person to custody refused Extradition Act 1988 (Cth) s 15 Judiciary Act 1903 (Cth) s 39B Federal Court of Australia Act 1976 (Cth) s 23 REPUBLIC OF IRELAND v VINCENT THOMAS O'DONOGHUE AND ANOTHER WAD300 of 2004 FRENCH J 30 DECEMBER 2004 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD300 OF 2004

BETWEEN: REPUBLIC OF IRELAND

APPLICANT

AND: VINCENT THOMAS O'DONOGHUE

FIRST RESPONDENT

IVAN GREGORY BROWN

SECOND RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 30 DECEMBER 2004

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The claim for interlocutory relief is refused.

2. The costs of the application be reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD300 OF 2004

BETWEEN: REPUBLIC OF IRELAND

APPLICANT

AND: VINCENT THOMAS O'DONOGHUE

FIRST RESPONDENT

IVAN GREGORY BROWN

SECOND RESPONDENT

JUDGE: FRENCH J

DATE: 30 DECEMBER 2004

PLACE: PERTH

REASONS FOR JUDGMENT ON CLAIM FOR INTERLOCUTORY RELIEF 1 These proceedings, which were commenced today, seek review of a decision of a Stipendiary Magistrate, his Worship Mr Brown SM, in which he ordered that Vincent Thomas O'Donoghue, a person subject to extradition proceedings before him, be released on bail subject to meeting certain conditions. 2 The background to the extradition proceedings and the occasion for the learned magistrate's order commenced with the arrest of Mr O'Donoghue by Australian Federal Police in Perth on 21 December 2004. The arrest was made pursuant to provisional warrants issued under the authority of the Extradition Act 1988 (Cth) (the Act). The provisional warrants relate to charges laid and warrants issued in the Republic of Ireland in connection with offences of fraudulent conversion of cheques and false pretences. It appears to be common ground that the overall amount in issue is in the vicinity of ₤34,000. The false pretence and fraudulent conversion charges can be grouped in pairs, each of which concerns essentially one incident. 3 The Irish warrants were issued on 24 March 2004. There was evidence before the learned magistrate, in the form of an affidavit sworn by Mr Hollands, a Senior Legal Officer of the Attorney-Generals Department in Canberra on 22 December 2004, that Mr O'Donoghue had been interviewed by Irish police in relation to the suspected offences on 29 May 2000. It does not appear from the record that any charges were laid between that time and the laying of charges in March 2004. 4 Mr O'Donoghue departed Ireland for Australia in July 2002 and arrived in Australia on 21 July 2002, travelling on his Irish passport. He has remained in Australia since that time, living for the most part in Queensland. He has only recently moved to Perth. He also recently applied for the issue of a new Irish passport and sent his old Irish passport to the Irish Embassy in Australia for that purpose. After his arrest his new passport and his old passport were sent to the address which he nominated in Perth and which is his present residence. They have been surrendered to the Australian Federal Police and are presently in their possession. Mr O'Donoghue is accompanied in Australia by his de facto wife and two children, none of whom is an Australian citizen, and their passports have all been surrendered. 5 The matter came on before his Worship Mr Brown SM on 24 December 2004 and at that time an application was made for Mr O'Donoghue to be released on bail. The release of a person on bail in such circumstances is covered by s 15 of the Act, which provides in subs(1) that: 'A person who is arrested under a provisional arrest warrant shall be brought as soon as practicable before a magistrate in the State or Territory in which the person is arrested.' Subsection (2) provides: 'The person shall be remanded by a magistrate in custody, or, subject to subsection (6), on bail, for such period or periods as may be necessary for proceedings under section 18 or 19, or both, to be conducted.' Subsection (6) provides: 'A magistrate shall not remand a person on bail under this section unless there are special circumstances justifying such remand.' 6 On 24 December 2004, the learned magistrate acceded to the defence application for bail, indicating that he was satisfied that special circumstances had been made out and that there was no real risk of flight by Mr O'Donoghue if he were to be released on bail. In so doing it appears from references to the magistrate's reasons in an affidavit sworn by Mr Putt that he referred to the judgment of the High Court in United Mexican States v Cabal (2001) 209 CLR 165. The Court said in that case (at [61]): '... bail in extradition cases should be granted only when two conditions are fulfilled. 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." Second, there must be no real risk of flight. Absence of a real risk of flight is ordinarily a necessary but not a sufficient condition of bail. 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. A person, fearing punishment and inclined to flee, is unlikely to be diverted from that course by the prospect that his or her sureties may forfeit their securities or by stringent reporting conditions. Even if the defendant has to report twice daily to the police, he or she will have a period of 12 - 14 hours in which to leave Australia.' And (at [62]): '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.' 7 The bail conditions imposed by the learned magistrate required that Mr O'Donoghue and his de facto wife were to surrender all their passports to the Clerk of Courts. He was to reside at 39 Victory Terrace, East Perth, Western Australia. He was to provide a $50,000 personal bail undertaking and a cash deposit of $5,000. He was not to approach within three kilometres of an airport. He was to report daily between 9.00 am and 10 am to the Beaufort Street police station. 8 The matter was adjourned for further mention to 4 January 2005. Pursuant to the bail order, Mr O'Donoghue was released from custody on 28 December 2004. 9 There is no transcript of the learned magistrate's reasons for decision. However, Mr Putt, the counsel for Ireland, who appeared before him, has identified matters with which the magistrate dealt in concluding that there were special circumstances and that there was no flight risk. In particular it appears that his Worship referred to the delay by Irish authorities in issuing warrants in March 2004 for Mr O'Donoghue's arrest arising out of offences allegedly committed in the period from November 1998 to July 1999, the fact that Mr O'Donoghue was interviewed by Irish police on 29 May 2000 and that he arrived in Australia in July 2002. Mr Putt also indicated that the learned magistrate found, contrary to an unsupported proposition put to him in Mr Hollands' affidavit, that Mr O'Donoghue had not 'fled' from justice in Ireland. 10 As to his Worship's finding in relation to the real risk of flight, it appears from Mr Putt's affidavit that he found that Mr O'Donoghue had not fled justice in Ireland, had been working in Australia under his own name since July 2002, had been and still is lawfully resident in Australia, is accompanied in Australia by his immediate family, pregnant wife and two children, is qualified as a legal practitioner in Ireland and has relatives in Ireland. 11 It is put by Mr Putt that the learned magistrate erred in holding that the circumstances, to which I have already referred, were special circumstances for the purposes of subs 15(6) of the Act and that in so holding he wrongly applied the law. It is said that his Worship failed to take into account as a relevant consideration that Irish authorities had no record of how Mr O'Donoghue departed Ireland and that he failed to take into account relevant considerations about whether there was a real risk of flight. 12 As to the alleged failure to take into account, as a relevant consideration, that the Irish authorities had no record of when or how Mr O'Donoghue departed Ireland, it does appear that the Irish Government, at least through its embassy in Australia, has recently had possession of Mr O'Donoghue's former Irish passport which he had when he arrived in Australia. It also appears not to be disputed, although nobody seems to have actually examined it on the Irish Government side, that the passport contains a stamp indicating the date upon which he departed Ireland. In any event, the relevance of all that one way or the other is really not clear. 13 In relation to the real risk of flight, the submission is that the learned magistrate failed to take into account a number of considerations; namely, that Mr O'Donoghue and his immediate family had only been in Perth for a week, having moved from Queensland, that Mr O'Donoghue was in the process of applying for a new Irish passport when arrested, that it was unclear whether Mr O'Donoghue received a new Irish passport sent by the Irish Embassy in Canberra before his arrest, that Mr O'Donoghue and his immediate family are Irish citizens and have only temporary bridging visa status in Australia, that Mr O'Donoghue is not known to own real property in Australia and is currently staying in short-term accommodation, that Mr O'Donoghue's financial resources are unknown and that he does not have family links in Australia outside his immediate family. His extended family resides in Ireland. 14 It is important to bear in mind that the present application is brought under s 39B of the Judiciary Act1903 (Cth) seeking certiorari and mandamus on the basis that the learned magistrate in the exercise of his administrative function in determining whether or not to grant bail has erred jurisdictionally. That is, it is contended, that his decision was affected by error of law, which vitiated it. In the context of this case it is, in effect, submitted that he asked himself the wrong legal questions in determining whether or not the conditions necessary to be established for the grant of bail under subs 15(6) of the Act were satisfied. 15 It will be necessary upon the hearing of the substantive application to consider the record. Apparently a transcript will be available, although it is not yet available, of the submissions put to the magistrate and what the magistrate said in making his order. I refer, without any disrespect, to Mr Putt's attempt to encapsulate what he saw as critical aspects of the magistrate's reasoning relevant to the present application. The present application is really for an order by way of interlocutory relief and invokes s 23 of the Federal Court of Australia Act 1976 (Cth) for the power to make such an order. Applying the principles ordinarily applicable to the grant of interlocutory relief, this application mandates a consideration of whether or not there is a serious case to be tried, that is to say, a seriously arguable case of jurisdictional error on the part of the magistrate in the two respects which have been advanced. It also requires consideration of whether the balance of convenience favours the grant of relief on an interlocutory basis. 16 These two conditions for the grant of interlocutory relief are interdependent. That is to say, the stronger the case then the less the balance of convenience has to favour the grant of relief. The weaker the case, the stronger the balance of convenience has to be in favour of the grant of relief. The nature of the decision which the learned magistrate was called upon to make in this case was in a sense evaluative in character. There is no bright line principle governing the assessment of whether there are special circumstances and whether there is a real flight risk. 17 In Cabal the High Court made quite clear that there is a very high threshold for the finding of special circumstances. No doubt there is in that respect an arguable case that the magistrate has erred. However, I am hampered by the fact that I do not have the full context of his Worship's remarks and I am not satisfied on the basis of the argument put to me that the point is beyond dispute. It seems to me that there is, at least potentially, merit in the submission that Mr Bayly has put on behalf of Mr O'Donoghue. Some of that of course, and particularly the question whether delay by the authorities goes to make out special circumstances, is also relevant to the question of the real risk of flight. It bears upon the time for which Mr O'Donoghue has been living apparently openly in Australia, knowing that there had been an investigation carried out but without any attempt apparently at concealment. The assessment of special circumstances and risk of flight is one which the magistrate has made. Whether that assessment was infected by error as to onus and the degree of satisfaction is not apparent to me in this case. 18 Undoubtedly the balance of convenience has two elements. The first is the liberty of the individual. That is to say if I revoke the order made by the learned magistrate then, on the basis that there was an arguable case of error, Mr O'Donoghue will spend time, until the substantive hearing of this application, in custody. On the other hand, if I do not revoke that order there is the question whether Mr O'Donoghue will be at large and constitute a risk of flight which would defeat the whole purpose of the extradition proceedings and reflect badly upon Australia's compliance with its international obligations under the extradition treaty with Ireland and under the statute. 19 I am not satisfied that the case for error which has been made out is so serious and so plainly in favour of the applicant that, having regard to the impact upon Mr O'Donoghue of revoking the order immediately until substantive hearing, I should make the order which is sought. The balance of convenience, the inconvenience or risk, if there be any, to the applicant will be mitigated by the fact that I will require that this matter go on for urgent hearing. 20 A case of this kind should not be unduly delayed given the essentially interlocutory character of the order which is under review and I will require that it proceed to a hearing in the week commencing 10 January 2005. That is irrespective of the availability of counsel, but, within that week, I will endeavour to be flexible as to the fixing of a date. The application for interlocutory relief will be refused. The cost of the application for interlocutory relief will be reserved. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.