Bertran v Minister for Justice - [1999] FCA 1117

FEDERAL COURT OF AUSTRALIA
Bertran v Honourable Amanda Vanstone [1999] FCA 1117
EXTRADITION – Arrest on provisional arrest warrant – Bail pending determination of extradition proceedings – Special circumstances justifying bail – Whether applicant entitled to bail upon establishing special circumstances justifying bail – Whether discretion to refuse bail notwithstanding special circumstances justifying bail – Applicant would be entitled to bail in country seeking extradition in respect of offence for which that country requests his return – Whether a matter magistrate bound to take into account in determining whether special circumstances justifying bail exist.
Extradition Act 1988 (Cth) s 15(2), (6), 21(6)
Felton v Mulligan (1971) 124 CLR 367 applied
Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 cited
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 cited
Fencott v Muller (1983) 152 CLR 570 cited
Re Wakin; Ex parte McNally & Anor [1999] HCA 27 cited
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied
Jarrett v Seymour (1993) 119 ALR 46 applied
Wu v Attorney‑General (1997) 79 FCR 303 considered
Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 considered
Holt v Hogan [No 1] (1993) 44 FCR 572 considered
Kainhoffer v Director of Public Prosecutions (1993) 48 FCR 9 considered
Re Nacif‑Borge 829 F Supp 1210 (1993) considered
Re Rouvier 839 F Supp 537 (1993) considered
Re Siegmund 887 F Supp 1383 (1995) considered
Re Morales 906 F Supp 1368 (1995) considered
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 considered
Wright v Henkel 190 US 40 (1903) cited
MARCO PASINI BERTRAN v THE HON AMANDA VANSTONE, in her capacity as Minister for Justice for the Commonwealth, DAVID McDONNELL, in his capacity as Governor of Port Phillip Prison and BRIAN BARROW
V 240 OF 1999
SUNDBERG, MERKEL and FINKELSTEIN JJ
17 AUGUST 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 240 OF 1999

BETWEEN:

MARCO PASINI BERTRAN
Appellant

AND:

THE HON AMANDA VANSTONE, in her capacity as Minister for Justice for the Commonwealth
First Respondent

DAVID MCDONNELL, in his capacity as Governor of Port Phillip Prison
Second Respondent

BRIAN BARROW
Third Respondent

JUDGES:

SUNDBERG, MERKEL and FINKELSTEIN JJ

DATE OF ORDER:

17 AUGUST 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The applicant pay the first respondent’s costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 240 OF 1999

BETWEEN:

MARCO PASINI BERTRAN
Appellant

AND:

THE HON AMANDA VANSTONE, in her capacity as Minister for Justice for the Commonwealth
First Respondent

DAVID MCDONNELL, in his capacity as Governor of Port Phillip Prison
Second Respondent

BRIAN BARROW
Third Respondent

JUDGES:

SUNDBERG, MERKEL and FINKELSTEIN JJ

DATE:

17 AUGUST 1999

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
SUNDBERG and MERKEL JJ
BACKGROUND

The appellant is a citizen of the United Mexican States…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] FCA 1117
Decision Date: 17 AUGUST 1999

CaseChat Overview and Summary

Bertran v Minister for Justice involved the applicant, Bertran, who sought bail pending the determination of extradition proceedings. The case was heard in the Federal Court of Australia, where the applicant argued for bail based on special circumstances. The Minister for Justice opposed the bail application, arguing that the applicant would not be entitled to bail in the country seeking extradition.

The legal issues before the court were whether the applicant was entitled to bail upon establishing special circumstances justifying bail, whether the discretion to refuse bail existed notwithstanding special circumstances justifying bail, and whether the applicant's entitlement to bail in the country seeking extradition was a matter the magistrate was bound to take into account in determining whether special circumstances justifying bail existed. The court considered the relevant statutory provisions and case law to address these issues.

The court found that the applicant had not established special circumstances justifying bail. The court also held that the magistrate was not bound to take into account the applicant's entitlement to bail in the country seeking extradition when determining whether special circumstances justifying bail existed. The court concluded that the magistrate had exercised their discretion appropriately in refusing bail. The appeal was dismissed, and the applicant was ordered to pay the costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The applicant pay the first respondent’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 240 OF 1999

JUDGES:	SUNDBERG, MERKEL and FINKELSTEIN JJ
DATE OF ORDER:	17 AUGUST 1999
WHERE MADE:	MELBOURNE

JUDGES:	SUNDBERG, MERKEL and FINKELSTEIN JJ
DATE:	17 AUGUST 1999
PLACE:	MELBOURNE