FEDERAL COURT OF AUSTRALIA Barney v United Kingdom [2012] FCA 51 Citation: Barney v United Kingdom [2012] FCA 51 Parties: MARCUS BARNEY AKA ALAN TONY HARTE v UNITED KINGDOM and MAGISTRATE HUBER File number: NSD 122 of 2012 Judge: ROBERTSON J Date of judgment: 3 February 2012 Catchwords: EXTRADITION – bail – magistrate's refusal to remand applicant on bail ADMINISTRATIVE LAW – Judicial review of decision of magistrate – whether magistrate erred in law in concluding that "special circumstances" under s 15(6) of the Extradition Act 1988 (Cth) not made out Legislation: Extradition Act 1988 (Cth), s 15(2) and 15(6) Cases cited: Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 applied Cabal v United Mexican States (2001) 180 ALR 593 considered Cabal v United Mexican States (2000) 174 ALR 747 considered Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 applied Industry Research & Development Board v Bridgestone Australia Ltd (2001) 109 FCR 564 cited McCrea v Minister for Customs and Justice (2005) 145 FCR 269 considered Roy Morgan Research v Commissioner of Taxation (2010) 184 FCR 448 followed United Mexican States v Cabal (2001) 209 CLR 165 applied United States v Green (2009) 257 ALR 252 not followed Vetter v Lake Macquarie City Council (2001) 202 CLR 439 applied Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 applied Date of hearing: 2 February 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 52 Counsel for the Applicant: Mr I Lloyd QC with Mr A Tokley Solicitor for the Applicant: Leigh Johnson Counsel for the First Respondent: Mr S Lloyd SC Solicitors for the First Respondent: Blake Dawson The Second Respondent filed a submitting appearance, save as to costs IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 122 of 2012 BETWEEN: MARCUS BARNEY AKA ALAN TONY HARTE Applicant AND: UNITED KINGDOM First Respondent MAGISTRATE HUBER Second Respondent JUDGE: ROBERTSON J DATE OF ORDER: 3 FEBRUARY 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the costs of the first respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 122 of 2012 BETWEEN: MARCUS BARNEY AKA ALAN TONY HARTE Applicant AND: UNITED KINGDOM First Respondent MAGISTRATE HUBER Second Respondent JUDGE: ROBERTSON J DATE: 3 FEBRUARY 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision made on 24 January 2012 by a magistrate under s 15 of the Extradition Act 1988 (Cth) ("Extradition Act") refusing to remand Mr Barney, the applicant, on bail. 2 The application for judicial review was filed in this Court on 25 January 2012 and came on for urgent final hearing on 2 February 2012 given that the applicant was remanded in custody. 3 The application is brought under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) ("Judiciary Act"), applications for judicial review of decisions under the Extradition Act being excluded from review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) Schedule 1 par (r). Following Bertran v Vanstone (1999) 94 FCR 404, I accept that the Court has such jurisdiction. 4 Mr I Lloyd QC and Mr A Tokley of counsel appeared for the applicant and Mr S Lloyd SC appeared for the first respondent. A submitting appearance, save as to costs, was filed by the second respondent. 5 That the Court had jurisdiction was common ground. It was also common ground that, to succeed, the applicant had to show jurisdictional error but there was an important difference between the parties as to what that meant in the present case. 6 The following brief background was accepted as accurate by the applicant and the first respondent before me. 7 The applicant is currently remanded in custody under s 15 of the Extradition Act as a result of extradition proceedings brought by the United Kingdom. The offence for which the applicant's extradition is sought is "causing death by dangerous driving". The applicant has been convicted of this offence and sentenced in the United Kingdom. While serving his sentence, the applicant absconded to Australia. Before the Magistrate it was not in dispute that the applicant entered Australia on a false passport; and, when he was arrested "on domestic charges" by the New South Wales police in July 2011 he was also in possession of a driver's licence in a false name, which the applicant had obtained from the internet. 8 The extradition process in relation to the applicant was commenced on 21 October 2011, when a Magistrate of the Australian Capital Territory issued an arrest warrant under s 12 of the Extradition Act. The applicant was arrested, pursuant to that warrant, on 1 November 2011 and brought before a Magistrate, as required by s 15 of the Extradition Act, at Kempsey Local Court on that day. Since 1 November 2011, the applicant has been remanded in custody pursuant to s 15 of the Extradition Act. (At the time the applicant was arrested, he was serving a sentence of imprisonment in relation to domestic criminal offences. The first respondent understood that that sentence was completed on 6 November 2011.) 9 On 12 December 2011 the Minister for Justice issued a notice under s 16 of the Extradition Act which stated that an extradition request had been received from the United Kingdom and that the extradition offence was "causing death by dangerous driving". The extradition request referred to in that notice was dated 1 December 2011. 10 The application for judicial review as filed was in the following terms: 1. On the grounds stated in the statement of claim, accompanying affidavit or other document prescribed by the Rules, the Applicant claims: 1. A declaration that Huber LCM erred in law in refusing bail to Marcus Barney by: (a) Failing to consider whether the extradition notice challenge was "viable"; (b) Applying the wrong statutory test to the bail determination; (c) Considering that "special circumstances" were not made out; 2. To seek to have the decision of Huber LCM quashed on appeal under section 39B(1A) of the Judiciary Act (Cth). 3. To have the decision of Huber LCM remitted to another Magistrate of the Local Court of New South Wales to be dealt with according to law; 4. To seek costs against the United Kingdom. 11 The applicant relied on the formal affidavit of Leigh Johnson affirmed on 25 January 2012 and otherwise on a bundle of material which the parties agreed was the material before the Magistrate. 12 At the commencement of the final hearing, ground 1(b) was abandoned and ground 1(a) was pressed only as part of ground 1(c) and on the basis that the Magistrate gave that matter no weight. As will be seen the "viability" question suffered further refinement in the course of argument. The applicant also accepted that, if he was successful on the "special circumstances" ground, the matter would have to be remitted and no objection was taken to such remitter to Huber LCM. 13 Section 15 of the Extradition Act is relevantly in the following terms: 15 Remand (1) 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. (2) 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. (3) If a person is remanded in custody after making an application for bail, the person cannot make another application for bail during that remand unless there is evidence of a change of circumstances that might justify bail being granted. . . . (6) A magistrate shall not remand a person on bail under this section unless there are special circumstances justifying such remand. 14 The Magistrate's decision under s 15 was set out in an agreed copy of the transcript, as follows: . . . this is an application for bail. The applicant is in custody as a result of extradition proceedings which have been commenced by the United Kingdom. The offence for which the applicant is being sought to be extradited is causing death by dangerous driving. The applicant has been convicted and sentenced in the United Kingdom and indeed was serving a sentence by way of day release at the time he absconded to Australia. The application was heard yesterday and I adjourned the matter until today in order to read all the material and the authorities which were relied upon by the parties and handed up to me. Time constraints have prevented me from writing a detailed decision. Section 15(6) of the Extradition Act provides that "A magistrate shall not remand a person on bail under this section unless there are special circumstances justifying such a remand". The applicant submits that when one considers all the following circumstances, special circumstances can in fact be satisfied. They include: (a) that the applicant intends to contest the warrant but it may take over 12 months for the contested warrant proceedings to be heard; (b) if he is extradited the time spent in custody will not automatically be taken into account when he returns to the United Kingdom's custody, and indeed he has only a little over a year left to serve in the United Kingdom; (c) he is being held in maximum security; (d) his health has deteriorated as a result; (e) he has been threatened with knives as indeed has his family; Further circumstances that are sought to be taken into account are that: (f) whilst he's been in custody he's not been allowed visits or telephone contact with his de facto; (g) and also he's not allowed to speak Romany, any telephone calls or visits are terminated if Romany is spoken; (h) he intends to appeal his domestic conviction and sentence, that is the Kempsey conviction and sentence, which in fact he has already completed; (i) further, he intends to challenge Blake Dawson solicitor's capacity to prosecute the extradition order on behalf of the United Kingdom. The applicant relies on Bertran v Vanstone (1999) 94 FCR 404 as binding authority. Her Honour quoted from [14]-[15] of the judgment of Sundberg and Merkel JJ in that case and continued: The applicant relies also on United Mexican States v Cabal (2001) 209 CLR 165 for the proposition that it is not necessary that any particular circumstance should be regarded as special, several factors in combination can constitute special circumstances justifying bail. The applicant entered Australia unlawfully using a false passport. He has no current visa, and were it not for the extradition application, the applicant would be likely to be deported to the UK. As a result of the extradition proceedings, a criminal justice certificate is in place. The applicant is content to be detained in an immigration detention facility, and indeed the applicant has proposed that a condition of bail that he not be released from custody unless it be into the care and custody of an immigration officer and then be taken directly to an immigration detention facility where he is to reside whilst on remand. This condition it is argued, would allay any concerns the Court might have in relation to flight. The United Kingdom argues that Cabal is the relevant and most recent authority concerning section 15(6). I agree. Although the case concerned section 21, it specifically noted that the same test was to be applied to section 15(6). Cabal provides the formula for assessing in what circumstances bail is to be granted. There are two requirements for bail based on special circumstances. First, they must not be factors applicable to all persons facing extradition. And secondly, there must be no real risk of flight. Her Honour then quoted from [61]-[62] of the judgment of the Court in Cabal as follows: Given this background and the rationale for the "special circumstances" condition, 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". 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. 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 twelve to fourteen hours in which to leave Australia. Even when special circumstances are proved and there is no real risk of flight, it does not follow that bail must be granted. Her Honour continued as follows: The Court in Cabal found that, inter alia, delay, discomfort in gaol, the likelihood of delay in hearing, the likelihood of acquittal on return, the need to be actively involved in defence of the extradition proceedings, pending civil litigation, risks to the defendant's health, risk to health, likelihood of bail in the extraditing country, likelihood of acquittal of the underlying charge, existence of a constitutional challenge to the extradition statute, non-violent [nature] of the offences amongst other things did not amount to special circumstances. The applicant concedes that the delay facing him in relation to both the proceedings and also in relation to the actual extradition is not specific to himself and that it is common to all who are subject to an extradition warrant. Similarly, having regard to the matters raised by the applicant with respect to the UK legislation, that is, that the time spent in Australian custody awaiting extradition to the UK will not necessarily be taken into account as time served back in the UK, is not specific to the accused. It cannot be regarded as special to the applicant as it relates to all who fall within the UK legislative provisions. All persons subject to an extradition warrant are able to contest the warrant. They may indeed be held in maximum security. Threats to prisoners and their families are, regrettably, not unusual. Challenging Blake Dawson Waldron's capacity to prosecute the extradition order on behalf of the UK is simply a further ground to challenging the warrant. Appealing a domestic conviction and sentence is not particular, peculiar to the applicant. The accused is fluent in English, being born and educated in the UK, and although he would like to speak Romany to visitors and relatives, I do not find that it amounts to a special circumstance. Nor do I find that not being allowed visits or telephone contact with his de facto is special circumstances. I am not satisfied that the applicant has shown special circumstances, even when each of the circumstances are considered in combination. Accordingly, not finding that there are special circumstances, it is not necessary for me to consider whether or not he is a flight risk. The application for bail is refused. The date, the 12th of March is confirmed, and that's the date to fix the hearing date. 15 As I have indicated there was an important difference between the parties as to the task of the Court on the present judicial review application. The applicant submitted that this Court should decide the matter of "special circumstances" for itself, that is, that this Court should make up its own mind whether special circumstances justifying remand on bail exist or existed. The first respondent submitted that the question was whether the decision of the Magistrate was open on the facts before her Honour. 16 In my view, in exercising judicial review jurisdiction under s 39B(1A)(c) of the Judiciary Act in relation to whether or not there are special circumstances justifying remand on bail within the meaning of s 15 of the Extradition Act, the issue is not whether this Court considers that there are or were such special circumstances but whether, the facts being properly determined and the law correctly stated and accepting that the statutory expression does not carry the ordinary English meaning of its constituent words, it was open to the Magistrate to conclude as her Honour did. 17 This approach differs from that taken by Perram J in United States v Green (2009) 257 ALR 252 at [37] but the particular point does not appear to have been argued in that case: it appears to have been assumed that the position of the Court in a s 15 judicial review case was the same as in a s 21(6)(f) bail application. The particular point is whether the consequence of the conclusion that the words "special circumstances justifying such remand [on bail]" did not have their ordinary English meaning is that the Court should decide for itself whether, on the facts, special circumstances were made out. Further the approach I prefer would not have affected the result in that case. This is because Perram J must have concluded implicitly, by agreeing with the Magistrate's conclusion, that that conclusion was open. 18 I take this approach consistently with a line of cases which includes Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557 per Mason JA; Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 450-451; Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [17]-[19]; and Roy Morgan Research v Commissioner of Taxation (2010) 184 FCR 448 at [30] and [34]. 19 In Vetter (above), the issue centred on a journey claim under s 10 of the Workers Compensation Act 1987 (NSW). Chief Justice Gleeson, Gummow and Callinan JJ said at [24] that, not infrequently, informed and experienced lawyers applied different descriptions to a factual situation. That was why the test whether legal criteria have been met had been expressed in language of the kind used by Jordan CJ in Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138: [I]f the facts inferred… from the evidence . . . are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law. 20 To describe the question whether there are special circumstances justifying remand on bail as a question of degree perhaps states a conclusion as to the quality of the exercise that the statutory provision throws up; the question then being whether the facts as found are necessarily within, or necessarily outside, the statutory expression correctly construed: as per Jordan CJ in Australian Gas Light Co. 21 I leave for another day whether what is sometimes referred to as a "margin" exists for all decisions applying the law to the facts fully found, for example where those decisions do not involve questions of degree: see Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th ed, Thomson Reuters, 2009) at [4.140]. 22 The first respondent did submit before me that the conclusion by Perram J that the words "special circumstances" were not used as words having their ordinary English meaning was plainly wrong and that I should not follow it. In my view however it is not possible to understand those words except as explained in the High Court's decision in Cabal. Further, in my view the words are part of a composite statutory expression and are to be understood in the statutory context in which they appear. See also Industry Research & Development Board v Bridgestone Australia Ltd (2001) 109 FCR 564 at [49]-[51]. I therefore reject that submission. 23 In substance the case as ultimately pressed was that the Magistrate was wrong in her overall conclusion that there were not special circumstances justifying the remand of the applicant on bail. 24 As I have indicated, ground 1(b), that the Magistrate had applied the wrong statutory test, was abandoned at the commencement of the final hearing. In light of the decision of the High Court in Cabal especially at [57] and [61]-[62] the ground was clearly unsustainable. 25 As to ground 1(a), even considered as part of "special circumstances", as will appear below the applicant ultimately accepted that he was unable to put the matter of the extradition notice challenge higher than that the challenge had been made. The same applied to the challenge to the retainer of the first respondent's solicitors, although I understood that challenge to be foreshadowed rather than made. 26 At one point the argument about the extradition notice challenge was put that there was a high probability that the applicant could resist extradition in this case and that he could do so by reference to whether or not he had escaped from "prison" in the United Kingdom. It was not explained how that issue related to the substantive terms of the Extradition Act. For example, it does not appear to relate to whether or not the applicant is an "extraditable person" within the meaning of s 6 of the Extradition Act (Cth). Section 6 informs s 12(1)(b), that is, the magistrate is satisfied, on the basis of information given by affidavit, that the person is an extraditable person in relation to the extradition country. Neither does it appear to relate to the definition of extradition offence which is an element of the determination under s 19 of the Extradition Act. 27 More specifically, it was not established that the Attorney-General considered the extradition request as though the applicant had escaped from serving his sentence for dangerous driving and simply ended the enquiry at that point, as submitted by the applicant. 28 Neither, in my view, was it established that it was a mandatory relevant consideration, as explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39–41, for the Attorney-General acting under s 16(1) that the time spent on remand by the applicant would not or might not be counted towards his United Kingdom prison term. 29 In light of these considerations the applicant did not press the submission that there were good reasons to consider that a challenge to the extradition proceedings, including any challenge to the authority of the first respondent's solicitors to act, was likely to succeed, see matters (vi) and (viii) below, but submitted that the existence of the challenges was part of the special circumstances contended for, including by reference to delay. 30 As to the authority of the first respondent's solicitors, reference was made by the applicant to von Arnim v Federal Republic of Germany (2002) 125 FCR 324 at [12], [15] and [17] but nothing that is said there about the authority of the Director of Public Prosecutions to enter an appearance in that case advances the issue of the authority of the solicitors for the present first respondent. 31 In the result the applicant contended that the evidence before the Magistrate established that special circumstances existed in combination in this case for the following reasons: (i) The applicant was (and remains) willing to surrender himself to the authorities and to be held in immigration detention pending the determination of the application for extradition – in such circumstances there can be no risk of flight. (ii) The applicant was (and still is) engaged to be married to a person in Australia and wishes to do so – there is no incentive for him to run – not all persons awaiting extradition find themselves in such a situation. (iii) There is no evidence which contradicts the matters deposed to by the applicant in his affidavit – his present imprisonment circumstances are unnecessarily harsh and no person should be subject to or subjected to what the applicant has had to and is having to endure – not all persons awaiting extradition fall into this category: Cabal at [78]. (iv) The applicant's time in custody– already several months, is unlikely to be taken into account by the UK authorities with the consequence that he will serve more in custody than he was required to serve by the UK authorities: Cabal at [56]; opinion/affidavit of Dennis QC. (v) The purpose of detention in Australia is to prevent flight: Cabal at [58]; it is not intended to punish a person – yet, that is the consequence of the applicant's present imprisonment conditions – not all persons awaiting extradition fall into this situation. (vi) There will be a strenuous challenge to the extradition proceedings and there are good reasons to consider that such a challenge is likely to succeed based on existing UK authority and the advice received from UK counsel: Cabal at [56]. Such a challenge will inevitably delay the proceedings. (vii) There is no evidence that the applicant poses any risk to the community. There is no evidence of any history or use of violence. He is not a danger to the community: Cabal at [56]. (viii) There is a challenge to the authority of the first respondent's solicitors being able to prosecute extradition proceedings. This challenge will further delay the proceedings. The case, it was submitted, for the combination of such matters as constituting "special circumstances" was overwhelming given the approach taken in the US cases. The contrary view was so clearly wrong that error must exist. 32 I shall consider these eight matters individually before considering them in combination. In doing so I apply to those matters capable of going to "special circumstances" the test of whether the facts are necessarily within the statutory expression "special circumstances justifying such remand [on bail]" such that a contrary decision is wrong in law. 33 Importantly to the evaluation of the eight matters I have set out was that the applicant accepted that, in light of Cabal, flight risk does not play a part in "special circumstances". 34 As to matter (i), the willingness of the applicant to surrender himself to the authorities and to be held in immigration detention so that there can be no risk of flight does not go to the question of special circumstances, consistently with Cabal and the applicant's acceptance that flight risk does not play a part in "special circumstances". 35 Similarly, as to matter (ii), the factor of the applicant's engagement to be married to a person in Australia was also put as going to the incentive for him to run and thus it goes to the flight risk which, the applicant accepted, does not play a part in the assessment of special circumstances for the purposes of s 15 of the Extradition Act. 36 As to matter (iii), this involves an assessment of the evidence before the Magistrate and, the applicant submitted, a comparison of that evidence and the evidence accepted as constituting special circumstances in Cabal. 37 The evidence before Kirby J in Cabal v United Mexican States (2001) 180 ALR 593 was that the applicants were incarcerated in a most severe custodial regime, involving unremittingly severe discipline ordinarily reserved for the most dangerous and recalcitrant Australian prisoners. They were subjected to strip searches. During transportation they were confined by short-chain shackles. They had no more than restricted access to recreational, work, library, educational and religious activities. In total the regime could only be regarded as exceptional by the standard of the Extradition Act. 38 On appeal in Cabal at [78] the Court said first that the extreme conditions under which Mr Cabal had been held for 31 months together with his deteriorating psychological condition constituted special circumstances. Their Honours said that few, if any, persons detained for extradition in Australia can have been held for so long under such conditions. More relevantly to the present case, their Honours said "the conditions were so extraordinarily harsh that they alone constituted special circumstances." Such conditions were not endured by defendants in extradition proceedings in other parts of Australia. 39 The evidence in relation to this issue in my view should be limited to remand pursuant to the Extradition Act, as opposed to remand in Kempsey Prison in respect of the applicant's offences in Australia. The applicant's evidence showed that he was held in protective custody in which he was locked in a small cell often for 24 hours a day. He had been denied access to phone calls and specifically told that he had no rights to contact a lawyer or the British Embassy. Every application he put in for phone calls or even the most basic items such as socks or underwear went missing and he had been told by a prison guard "you must have really pissed someone off at Kempsey because they are still fucking you over in here". The applicant's fiancÉe had rung Parklea prison to make a booking to see him which was the requirement of that prison and had been told that she could not visit him. This was causing the applicant enormous distress. His native language was Romany. He had been forbidden by prison authorities from speaking his native language on the telephone or in visits with his fiancÉe on any occasion. His phone calls were always terminated when he spoke his native language or if it was spoken to him. When he was in visits if either he or his visitor spoke Romany the visit was terminated. When he questioned whether this was correct he was told he had no rights here. The applicant's pre-existing health problems have limited his body's ability to deal with stress. He had suffered numerous panic attacks. On several occasions he had literally passed out because of one of these attacks. He had pressed the "emergency button" in his cell on numerous occasions and had not received assistance or had a prison authority look in on him. While his extradition proceedings have been pending and he has not been able to see his fiancÉe he had become extremely depressed and anxious. 40 The Magistrate said of this material that it was not unusual: all persons subject to an extradition warrant may be held in maximum security. Not being allowed visits or telephone contact with his de facto were not special circumstances. The applicant was fluent in English and although he would like to speak Romany to visitors and relatives, not being allowed to did not amount to a special circumstance. I infer her Honour considered this material to include reference to the applicant's statements as to his health. That was how her Honour was addressed on that matter and the articulation of matter (iii) before me followed the same course. 41 Although there is some similarity with the conditions in Cabal I reject the applicant's submission that they are the same. Further, the facts are not by reason of that similarity, or otherwise, necessarily within the statutory expression "special circumstances justifying such remand [on bail]" such that a contrary decision is wrong in law. It is relevant in my view that the custody is protective custody. It is also relevant that there was no material enabling a comparison to be made to show that the circumstances relied on were different in kind from the disadvantages that all extradition defendants have to endure. Her Honour had to assess whether the applicant's conditions in protective custody were so extraordinarily harsh or so harsh as to constitute special circumstances. On the evidence before the Magistrate, and the absence of comparative evidence, it was open to her Honour to conclude as she did that the conditions did not constitute special circumstances. 42 As to matter (iv), whether the applicant's time in custody is unlikely to be taken into account by the UK authorities, it was accepted by the applicant that the position was (i) that the applicant would have no automatic right to have the period of foreign detention taken into account towards the time to be served on his custodial sentence; (ii) that the matter would be for the discretion of the Secretary of State; (iii) that it would depend entirely on the particular circumstances or merits of the case; and (iv) it was likely to be only in a case where there were "exceptional circumstances" that such a direction would be given. The Magistrate said that this could not be regarded as special to the applicant as it related to all who fell within the UK legislative provisions. I see no error in this conclusion. 43 The fifth matter, the punishment of the applicant by reason of his conditions of imprisonment, does not appear to have been put to the Magistrate but in my view it stands or falls with the third matter, the applicant's imprisonment conditions, and does not require separate consideration. 44 The sixth and eighth of the matters relied on were, as I have indicated above, conceded to amount to the existence of the challenge or challenges and the consequent delay. I see no error in the Magistrate's assessment that the delay had not been shown to be different in kind from the disadvantages that all extradition defendants had to endure. 45 In Cabal at [66] the High Court said that detention for a lengthy period – particularly when the charges are numerous and complex and the defendant exercises his or her right to appeal against the order of committal – is not so special that it constitutes special circumstances. In any contested extradition proceedings, delay is inevitable. Delay will constitute special circumstances only when it is outside what could be regarded as the normal range for offences of the type and complexity the subject of the proceedings. 46 Whether the applicant poses any risk to the community, matter (vii), does not appear to have been put to the Magistrate. In any event, in my view this does not go to the assessment of "special circumstances" but risk to the community goes to the third stage of the consideration of bail under s 15(6) as indicated by the consideration of the issue in Cabal at [62]. There the High Court said that even when special circumstances are proved and there is no real risk of flight it did not follow that bail must be granted. For example, the defendant may pose a risk to the community or a particular individual. 47 In my opinion, no error is shown in the Magistrate concluding that these matters do not constitute special circumstances of themselves or in combination. Put differently, this is not a case where the facts are so clearly in favour of the grant of bail that I would conclude that the Magistrate had erred merely because bail under s 15 was refused. 48 I reject the applicant's submission that the case for the combination of such matters or those matters considered separately was overwhelming and the contrary view was so clearly wrong that error must exist. Applying what I hold to be the correct legal test I am not persuaded that the matters which are capable of going to the assessment of "special circumstances", being matters (iii), (iv), (v), (vi), and (viii), are necessarily within the expression "special circumstances justifying such remand [on bail]" such that the contrary decision by the Magistrate was wrong in law. 49 With more than one conclusion being open to the Magistrate, it was not an error of law to conclude that there were not special circumstances justifying remand on bail within the meaning of s 15(6) of the Extradition Act. The facts were not necessarily within the statutory expression. I therefore find that there was no jurisdictional error. 50 The first respondent, the United Kingdom, contended that even though the Magistrate had not found it necessary to consider the question of risk of flight nevertheless the material on that issue was all one way such that, on the overall question of bail, there was only one answer. A consequence of this submission was that even if the Court found reviewable error in the Magistrate's assessment of special circumstances nevertheless the matter should not be remitted to the Magistrate. In light of my conclusions, this issue does not arise but I indicate that I would not have taken that course in any event, primarily because it would involve the Court in evaluating the material going to risk of flight for the first time on a judicial review application and where assessing the risk of flight is part of the three stage assessment reposed by the Parliament in a magistrate. 51 It was submitted by the applicant that if he was successful in his application for judicial review he should have an order for costs against the first respondent but that if he was unsuccessful in this application there should be no order for costs against him. He relied on the decision of Goldberg J in Cabal v United Mexican States (2000) 174 ALR 747. The relevant passage was cited with approval, although not applied in relation to the appeal, by the Full Court in Cabal v Secretary, Department of Justice (Vic) [2000] FCA 1227 at [5] and [8]. It is clear from McCrea v Minister for Customs and Justice (2005) 145 FCR 269 at [29] that there is no general principle in extradition cases that persons detained against their will should not have any impediment put in their way such as would inhibit their seeking their liberty. This was made clear in Te v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2004) 204 ALR 497 at 515-516 where it was held that the primary judge had erred in the exercise of his discretion by applying the "principle" referred to by Goldberg J as though it were a rule rather than a factor relevant to the exercise of discretion. Thus the award of costs must remain an exercise of discretion having regard to all the circumstances of the case. Having considered the circumstances of the case, including the factor referred to by Goldberg J, I conclude that costs should follow the event and that the applicant should pay the first respondent's costs of this judicial review application. 52 The order that I make is the application be dismissed, the applicant to pay the first respondent's costs. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate: Dated: 3 February 2012