Local Court New South Wales Medium Neutral Citation: Romania v Livadariu [2020] NSWLC 8 Hearing dates: 8 May 2020 Decision date: 15 May 2020 Jurisdiction: Civil Before: Farnan LCM Decision: Bail refused Catchwords: BAIL — Extradition — Overseas — from Australia — Special circumstances not shown for remand on bail Legislation Cited: Extradition Act (Cth) 1988 Cases Cited: Vasiljkovic v Commonwealth of Australia & Ors (2006) 227 CLR 614 United Mexican States v Cabal and Others (2001) 209 CLR 163 Schoenmakers v DPP (1991) 30 FCR 70 Republic of Poland v Ginter [2009] FCA Taylor v United States of America [2012] FCA 388 Holt v Hogan No 1 (1993) 44 FCR 572 Category: Principal judgment Parties: Sorin Vincent Livadariu (Applicant) Romania (Respondent) Representation: Counsel: Self represented (Applicant) T Buterin (Respondent) Solicitors: Self represented (Applicant) Attorney General's Department, Canberra (Respondent) File Number(s): 2019/00214187 Judgment 1. Mr Livadariu has applied to be remanded on bail pending proceedings in this court to determine his eligibility for surrender to Romania under the Extradition Act (Commonwealth) 1988. 2. Romania seeks to have Mr Livadariu extradited to serve a sentence of five years imprisonment imposed on him following his conviction in Romania for a robbery contrary to Article 211 of the Romanian Criminal Code, (of which four years and nine months allegedly remain to be served). The robbery involved the theft of a taxi on 12 February 1998 with violence. 3. The charge was dismissed at the Timis Tribunal on 18 May 1998. A prosecution appeal against that decision to the Romanian Court of Appeal was initially unsuccessful, with reasons for that decision given on 22 May 1998. He had been in custody it would appear between 13 February 1998 and 18 May 1998. 4. A further prosecution appeal was determined on 8 April 1999 and dismissed. 5. On the prosecutor's final appeal, the Romanian Supreme Court of Justice convicted Mr Livadariu on 24 May 2000. A Prison Penalty Execution Mandate was issued on 29 June 2000 for five years prison, from which the period previously spent in custody of about three months was deducted. 6. Mr Livadariu's own account is that by that date he had gone to Spain. There is no evidence of the circumstances in which that happened, however it appears he was legally represented in the proceedings in Romania. 7. The applicant first appeared before this court on 12 July 2019 on a warrant issued by a Magistrate of the Local Court of the Australian Capital Territory on 10 July 2019 under the Extradition Act 1988 (Cth). As at that date he was in custody in New South Wales serving a sentence. There is no evidence before me of the circumstances of that sentence, except that it is apparently a sentence of less than three years in total. He became eligible for release on automatic parole on that sentence on 5 May 2020. I have been informed that he has citizenship of both Australia and Romania. 8. No determination has yet been made as to whether he is liable for surrender under the Act. That hearing was listed before me on 9 March 2020, however was vacated on an earlier date on the respondent's application as he was seeking to obtain legal representation. All documents in support of the application for surrender appear to have been filed. His attempts to obtain legal representation have been unsuccessful and he has been self represented on this application. 9. The material before me on this bail application has been helpfully provided by the Bail Respondent, Romania, in a Hearing Book which contains both the applicant's material and that of the respondent. Additional material provided by the Applicant during the hearing consisted of medical records of Mr Livadariu from Lithgow Correctional Centre, and oral evidence given by him. 10. It is no part of my function to consider whether Mr Livadariu committed the offence for which his extradition is sought (Extradition Act s3(a) and see Vasiljkovic v Commonwealth of Australia & Ors (2006) 227 CLR 614 at 629). 11. Provision for remand on bail is made by section 15 of the Act. The power of this court to remand a person on bail is subject to section 15 (6) which provides: "(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." 1. The meaning of special circumstances in this provision has been considered in many decisions. There is a presumption against bail. The onus is on the applicant to show that a grant of bail is appropriate (Schoenmakers v DPP (1991) 30 FCR 70). The onus is also on the applicant to prove matters relied on as special circumstances. 2. The High Court in United Mexican States v Cabal and Others (2001) 209 CLR 163 has determined that the issue of special circumstances is to be determined first, and only if a determination is made in the applicant's favour on that issue is consideration to be given to the question of whether there is a risk of flight (at para 61). 3. In order to be special, an applicant's circumstances must be "different in kind from the disadvantages that all extradition defendants have to endure" (Cabal at para 61). They must also be "extraordinary". 4. The question of risk of flight is to be determined independently of any proposed bail conditions. That is a recognition of the practical reality that bail conditions cannot ever provide a guarantee that a person will be unable to flee if given their liberty. The issue, if the proceedings get to that stage, is whether there is a risk that they will seek to do so. It is the history and character of the defendant and the possible punishment faced which are to be considered. 5. The High Court in Cabal also indicated that bail is not necessarily to be granted even where special circumstances are proved and there is no real risk of flight (par 62). 6. The matters relied on as special circumstances I understand to be as follows: 1. Mr Livadariu's need to be at liberty to work, for the purpose of paying for legal representation. Mr Livadariu has done everything he can to obtain legal aid, and has also applied to the pro bono schemes through the Bar Association and the Law Society, all without success. It is accepted that he has exhausted his opportunities to obtain legal representation available to those who are unable to pay for it themselves. I accept that his ability to pay for legal proceedings would be improved if he were not in custody. 2. Conditions in custody arising from the current Covid 19 pandemic arrangements, and in particular restrictions on mixing with other prisoners, and accessing library facilities, affect Mr Livadariu's ability to represent himself. He gave evidence that when he speaks to the Prisoners' Legal Service, which he has done, he is unable to have more than a minute or two with them. He previously sought to have another prisoner assist him as a "McKenzie friend". I refused that application. That person previously prepared written submissions on his behalf, which are part of the material on this application. 3. Conditions in custody as a result of the Covid 19 pandemic mean that he is not able to have contact with his family whilst in prison, making his conditions in custody more harsh than they would ordinarily be. 4. Mr Livadariu's need to be at liberty to obtain medical investigation and treatment. He has given evidence that on the day before this application was to be heard he was unexpectedly transferred from Lithgow Correctional Centre to Parklea Correctional Centre. That afternoon he had an appointment with a general practitioner at Lithgow clinic to obtain an opinion about an apparent growth in his testicles. His unexpected transfer meant he was unable to attend that appointment. He gave evidence that he had been waiting for that appointment for about four weeks. 5. There is no evidence of any actual risk of flight. He has strong family ties in Australia that militate against his seeking to flee the jurisdiction. He says he has a partner and two sons and can live with them. There is a $1000 surety available and he is prepared to report to police and has already surrendered his passport to Campbelltown police. He refers to the current challenges involved in international travel in any case, and says that he has no reason to hide. 6. Delay was not raised by Mr Livadariu, but by me. The extradition relates to a sentence of imprisonment imposed in Romania in 2000, and it appears that it is more than 8 years since the prospect of extraditing Mr Livadariu was first raised with Australian authorities by Romania. There is nothing in the material before me to indicate what occurred between 2014, when Australia received a response to its query of Romania concerning double jeopardy, and 2019 when the extradition warrant was issued. 7. The fact that on 24 February 2020 the Timis Law Court in Romania has determined that the sentence for which Mr Livadariu's extradition is sought has been "accomplished" as the limitation period for serving the sentence has passed. As I read the translation of that decision which has been provided, the court essentially found that the period of five years plus the term of the sentence, itself five years, is the limitation period applying to this sentence. Time did not run during the period when Mr Livadariu was evading justice, however as I understand the decision the court found that time recommenced to run on 17 July 2009, the date on which the extradition request was first made (it is not clear whether that date refers to action taken within Romania, or action taken and communicated to Australia). I am informed that Australia has made a request of Romania for further information about this court decision, but that no formal response has been received. 1. Mr Buterin for Romania argues that the matters raised do not constitute special circumstances, either alone or in combination. He has taken me to authorities many of which were referred to by the High Court in Cabal. Every case is different, and just because a particular factor has been found in another case not to constitute special circumstances does not mean that it cannot in this case. However, the decisions do provide guidance as to the appropriate exercise of the discretion involved in determining what circumstances ought to be regarded as special. 2. Australia has obligations under international law in respect of applications by foreign entities for extradition which are powerful reasons for the presumption against bail in such matters. If a person is arrested on a warrant granted in Australia but is subsequently unable to be returned to the requesting jurisdiction because they have absconded while on bail, Australia's diplomatic standing as a country which complies with its treaty obligations may be harmed. This is one of the factors justifying the extremely stringent approach to bail in extradition matters. It is a rationale for finding that it is an error to have regard in these matters to the general presumption that a person's liberty should not be unnecessarily restricted (or that there is "a predisposition against unnecessary or arbitrary detention in custody" Holt v Hogan No 1 (1993) 44 FCR 572 disapproved in Cabal at para 72). That presumption is not something to which I can have regard. 3. The presumption in a matter such as this is that a person is ordinarily to be held in custody whether or not their detention is actually necessary to ensure that they will appear in court. 4. The first question is whether Mr Livadariu has discharged his onus of proving matters that he relies on as constituting special circumstances. 5. In relation to legal representation, I am satisfied on the balance of probabilities that the applicant has done everything he can to obtain legal representation, and that he is not in a position to pay for it. I accept that his capacity to represent himself is limited, particularly with the arrangements currently in place in the prisons as a result of the Covid 19 arrangements. However, there is no general entitlement to legal representation for proceedings of this nature, and it is certainly not unusual for those who are not in a position to pay for legal representation to have to represent themselves on extradition proceedings, where they seek to contest them. These are not criminal proceedings. I do not consider that this is in itself a special circumstance. 6. The discharge of the onus is particularly relevant to the question of his medical care. I accept that there is material before me which indicates that he requires review by a general practitioner. The medical record handed up on 8 May 2020 includes an entry by a nurse confirming "a large acute growth on his testicle" requiring urgent review. Counsel for Romania relies on documents included in the Hearing Book from Justice Health at tab 9 which is a standard document indicating that the full range of medical care is available to prisoners in New South Wales correctional centres. On the material before me I am satisfied on the balance of probabilities that Mr Livadariu does have a condition which requires investigation, and that so far his attempts to have it investigated within the correctional setting have been less effective than they would be if he were in the community. However, whether it is a condition which requires treatment, and if so, whether treatment is available within the correctional setting is entirely unclear. On the material before me I do not consider he has discharged his onus of proving that it is sufficiently unusual to constitute a special circumstance. Clearly, it does require investigation by Justice Health staff. 7. I accept that conditions in custody in May 2020 are more harsh than ordinarily would be the case. There is however no evidence that this applicant is more harshly impacted by those conditions than any other prisoner. In particular there is no evidence that his medical treatment is adversely affected by the Covid 19 arrangements. 8. There has been no relevant delay since the issue of the warrant. At this stage the applicant has been in custody for a period of 10 months, although he had been serving the non-parole period of a NSW sentence until 5 May 2020. While there is certainly a prospect that he will remain in custody for a lengthy period if denied bail, that is at this stage speculative so far as it may differ from other persons facing extradition. This court is in a position to allocate a date for hearing of the application for surrender in a matter of weeks rather than months. 9. Noting that it was raised by me, not by Mr Livaradiu, I do not consider that delay prior to the issue of the extradition warrant can be taken into account as a special circumstance on this bail determination for the following reasons. 10. I have been referred to the decision in Republic of Poland v Ginter [2009] FCA 262 on the question of delay as a special circumstance. I do not consider that decision to be authority for the proposition that delay prior to the issue of a warrant is incapable of constituting a special circumstance, although in the circumstances of that case it did not. The same may be said about the decision in Taylor v United States of America [2012] FCA 388. The delay referred to earlier in these reasons remains unexplained. The passage of at least seven years (2012 to 2019) from first request for extradition to the issue of an extradition warrant is in my view capable of constituting a special circumstance for bail where it could be shown to have adversely affected the respondent's ability to respond to the application, or some other aspect of their circumstances. However, there is no such evidence here. 11. The question of delay is of particular relevance where, as here, the circumstances on their face have resulted in a court decision in Romania calling into question this applicant's status as an extraditable person. I say immediately that that status is not a matter that any magistrate of this Court is required to determine. I have been referred in that regard to the decision in United Kingdom v Forsyth and another [2003] FCA 1072, a matter bearing some similarity to this in that Mr Forsyth was sought to be extradited to the United Kingdom following the issue of a warrant for his arrest in that jurisdiction. The application for bail came before the court after the original warrant issued in the UK had been withdrawn. Justice French in the Federal Court found that the magistrate was in error in determining that whether Mr Forsyth was still an extraditable person was relevant to the determination of his application for release on bail. The factual circumstances there certainly differ considerably from those here. In that matter, there had been an interim order of the High Court of Justice in the UK that the decision to withdraw the arrest warrant did not affect the validity of the warrant. It appears that the warrant had been withdrawn in error. However, that was not the basis on which Justice French granted the application for review. His Honour found that the magistrate was in error in considering whether Mr Forsyth was an extraditable person, and even if the magistrate's reasons could be read as foreshadowing reasons why he may not be eligible for extradition, that would not constitute a special circumstance warranting the grant of bail. 12. Mr Livadariu's situation with this delay and the apparent court decision in Romania is unusual. However, those are matters for another decision maker, not for me to consider on this application. Forsyth is persuasive authority that I cannot have regard to it. It is not a special circumstance. 13. The other matters relied on are all matters which are not in any sense unusual or exceptional. They also go to the risk of flight, rather than to special circumstances. 14. Mr Livadariu it is to be inferred left Romania aware that would have the effect that he would avoid serving any sentence imposed. Although there is no direct evidence of it, the only available inference is that he has been aware whilst living in Australia that he was sentenced to 5 years imprisonment in Romania in his absence. 15. While I am satisfied that the risk of flight may be low, and that his ties in the Australian community may be strong, I am not satisfied that the applicant has discharged his onus of proving that there are special circumstances. I have therefore concluded that the application for bail should be refused and Mr Livadariu should be remanded in custody pursuant to s15 Extradition Act. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 November 2021