Hellenic Republic v Konstantinou

Case [2010] FCA 708

FEDERAL COURT OF AUSTRALIA

Hellenic Republic v Konstantinou [2010] FCA 708

Citation: Hellenic Republic v Konstantinou [2010] FCA 708
Parties: HELLENIC REPUBLIC v VASILIOS KONSTANTINOU and DEPUTY CHIEF MAGISTRATE ANDREW CANNON
File number: SAD 80 of 2010
Judge: MANSFIELD J
Date of judgment: 6 July 2010
Catchwords:

EXTRADITION – bail application – respondent granted bail pursuant to s 15(2) of the Extradition Act 1988 (Cth) – applicant sought judicial review of decision – whether jurisdictional error in interpreting legislative requirement of “special circumstances” in s 15(6) – error to take into account that there is a predisposition against unnecessary or arbitrary detention

EXTRADITION – procedural fairness – refusal of adjournment of bail application – magistrate obliged to accord requesting country procedural fairness – whether requesting country was given a reasonable opportunity to prepare – no denial of procedural fairness

Legislation:

Judiciary Act 1903 (Cth) s 39B(1A)(c)
Extradition Act 1988 (Cth) ss 12, 15(1), (2), (3) and (6), 16, 17, 18, 19, 21, 26(6)(f)
Constitution s 73

International Convention on Civil and Political Rights 1966 Art 9(3)

Cases cited:

Vasiljkovic v The Commonwealth (2006) 227 CLR 614
Pasini v United Mexican States (2002) 209 CLR 246
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
Al-Kateb v Godwin (2004) 219 CLR 562
United Mexican States v Cabal (2001) 209 CLR 165
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
Craig v South Australia (1995) 184 CLR 163
United States of America v Green [2009] FCA 638
Republic of Ireland v O’Donoghue [2004] FCA 1753
Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70

R v Dudley Justices, Ex parte Director of Public Prosecutions (1992) 156 J.P.N. 618

Date of hearing: 18 and 28 June 2010
Place: Adelaide
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 54
Counsel for the Applicant: T Begbie
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the Respondents: M Shaw QC and M Jandy
Solicitor for the Respondents: Dadds Jandy Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 80 of 2010
BETWEEN:

HELLENIC REPUBLIC
Applicant
AND:

VASILIOS KONSTANTINOU
First Respondent

DEPUTY CHIEF MAGISTRATE ANDREW CANNON
Second Respondent

JUDGE:

MANSFIELD J

DATE OF ORDER:

6 JULY 2010

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.An order in the nature of certiorari that the decision of the second respondent on 8 June 2010 to remand the first respondent on bail under s 15(2) of the Extradition Act 1988 (Cth) be quashed.

2.The first respondent is to return to his former custody by surrendering himself to the Australian Federal Police at Level 8, 55 Currie Street Adelaide in the State of South Australia no later than 11 am on Tuesday 6 July 2010 to the intent that he be brought before a magistrate as soon as practicable in accordance with s 15(1) of the Extradition Act 1988.

3.In the event that the first respondent fails to comply with order 2…

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Hellenic Republic v Konstantinou [2010] FCA 708
Case
[2010] FCA 708
Decision Date

CaseChat Overview and Summary

The case of Hellenic Republic v Konstantinou involved the Hellenic Republic seeking a judicial review of a decision by a magistrate to grant bail to Konstantinou, an individual wanted for extradition. The primary legal issues before the court were whether the magistrate made a jurisdictional error in interpreting the requirement of "special circumstances" under section 15(6) of the Extradition Act 1988 (Cth), and whether the requesting country was accorded procedural fairness during the bail application process. The Hellenic Republic argued that the magistrate misinterpreted the legislative requirement by considering international human rights norms, specifically the International Covenant on Civil and Political Rights (ICCPR), which led to an inappropriate presumption against detention. They further contended that the requesting country was not given a reasonable opportunity to prepare its case, thus denying it procedural fairness.

The court examined the magistrate's reasoning and concluded that the magistrate did not misinterpret the legislative requirement for "special circumstances." The court found that the magistrate correctly applied the law as articulated in previous cases, considering all relevant factors before deciding to grant bail. The court further held that the Hellenic Republic was given a reasonable opportunity to prepare and present its case, thus no procedural fairness was denied. The court found that the magistrate's decision to grant bail was not a jurisdictional error and did not warrant judicial review.

Given the court's conclusion on the jurisdictional error, the magistrate's decision to grant bail was quashed. The court ordered that Konstantinou return to custody and be brought before a magistrate for the bail application to be reheard. The court also made an order that if Konstantinou fails to comply with the return order, he may be taken into custody. Additionally, the court declared the magistrate's previous bail decision to be of no force and effect. The court granted either party the liberty to apply for further orders regarding implementation and costs.

Orders

Orders of the court

1. An order in the nature of certiorari that the decision of the second respondent on 8 June 2010 to remand the first respondent on bail under s 15(2) of the Extradition Act 1988 (Cth) be quashed.

2. The first respondent is to return to his former custody by surrendering himself to the Australian Federal Police at Level 8, 55 Currie Street Adelaide in the State of South Australia no later than 11 am on Tuesday 6 July 2010 to the intent that he be brought before a magistrate as soon as practicable in accordance with s 15(1) of the Extradition Act 1988.

3. In the event that the first respondent fails to comply with order 2 he may be taken into custody.

AND THE COURT DECLARES THAT:

4. The decision of the second respondent on 8 June 2010 to remand the first respondent on bail under s 15(2) of the Extradition Act 1988 was of no force and effect.

AND THE COURT GIVES:

5. Either party liberty to apply on short notice in the event that any issue arises as to the proper implementation of these orders.

6. Either party liberty to apply on question of costs.

Note:

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

As the magistrate’s bail order is to be quashed in any event, the Hellenic Republic will now obviously be in a position on the bail application to be reheard where in any event it has had the benefit of knowing the case he wants to present and to assemble the evidence it wants to adduce in opposition.CONCLUSION In the light of my conclusion on the first issue, I propose to make the following orders as suggested by counsel for the Hellenic Republic and acceded to by senior counsel for Mr Konstantinou in the event that the magistrate’s decision is to be quashed:1.An order in the nature of certiorari that the decision of the magistrate on 8 June 2010 to remand Mr Konstantinou on bail under s 15(2) of the Extradition Act 1988 (Cth) be quashed. 2.An order that Mr Konstantinou is to return to his former custody by surrendering himself to the Australian Federal Police at Level 8, 55 Currie Street Adelaide in the State of South Australia no later than 11 am on Tuesday 6 July 2010 to the intent that he be brought before a magistrate as soon as practicable in accordance with s 15(1) of the Extradition Act 1988.3.An order that in the event Mr Konstantinou fails to comply with order 2 he may be taken into custody.4.A declaration that the decision of the magistrate on 8 June 2010 to remand Mr Konstantinou on bail under s 15(2) of the Extradition Act 1988 was of no force and effect. I will give either party liberty to apply on short notice in the event that any issue arises as to the proper implementation of these orders. I will also give either party liberty to apply on the question of costs.

Ratio Decidendi

Legal Principle Established

The magistrate’s conclusions and orders are in the following passage:I find that in combination, all the circumstances are special circumstances. I separately find that there is no flight risk regardless of conditions that I am about to impose. I will of course, as a matter of prudence, impose further conditions to minimise any flight risk were I to be wrong in my finding that there is no flight risk. Finally, there are no prevailing circumstances of risk to the community or other matters that prohibit bail. I intend to grant bail in his own recognisance in the sum of $50,000 and two sureties to be members of his family at $10,000 each. That is not cash that is an obligation. I order that his passports be surrendered immediately to the Registrar of the Court to be held by the Registrar of the court until further order, that he not apply for any passport, that he not attend at any airport or other port of embarkation to leave Australia, that he not leave the State of South Australia, that he report to the Holden Hill Police Station every day between 9 a.m. and 5 p.m. and that is to commence tomorrow. I note that in fixing that reporting condition that it may be reasonable to apply to vary that at a later time. He is to reside at 4 Billabong Road, Para Hills.CONSIDERATION OF THE APPLICATION The Hellenic Republic accepts that it has no right prescribed under the Act to have the magistrate’s decision on bail reviewed or to appeal from it. It accepts that it must demonstrate jurisdictional error on the part of the magistrate, as explained in Craig v South Australia (1995) 184 CLR 163 and more recently in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 so as to have the magistrate’s decision quashed. The Hellenic Republic accepts that, in that event, the question of bail under s 15(2) should be remitted to a magistrate for re-determination according to law. It also accepts that such a re-determination would be de novo, so that Mr Konstantinou should be able to adduce such material as he may be advised on that application. Five grounds of jurisdictional error were asserted. I shall consider each in the sequence set out in the written submissions of counsel for the Hellenic Republic.(1) Did the magistrate misinterpret the legislative requirement for “special circumstances” in s 15(6) of the Act? The contention is that the magistrate erred in law so as to ask himself the wrong question by his reference to the ICCPR and its role in interpreting s 15(6) of the Act, and additionally therefore did so in a way which indicates he was performing a judicial rather than an administrative function. In substance, the contention is that the magistrate wrongly had regard to a presumption against detention in custody when considering the meaning of “special circumstances”. In that part of his reasons set out in [22] above, he has drawn conclusions on the bail application in terms apparently consistent with the proper approach to s 15(2) and (6) as explained in Cabal. His Honour found:·special circumstances existed;·there was no risk of flight; and·in the exercise of his discretion, it was appropriate to grant bail.