O'Donoghue v Ireland

FEDERAL COURT OF AUSTRALIA

O'Donoghue v Ireland [2009] FCA 394

EXTRADITION – applicant committed to custody – application for bail pending review of Magistrate’s order pursuant to s 21(6)(f)(iv) of the Extradition Act 1988 (Cth) - special circumstances not made out – bail application dismissed

Extradition Act 1988 (Cth), s 19(2), s 19(9), s 21(1), s 21(6)(f)(iv)

Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70
United Mexican States v Cabal (2001) 209 CLR 165

VINCENT THOMAS O'DONOGHUE v IRELAND and GRAEME NEIL CALDER

WAD46/2009

BARKER J
6 APRIL 2009
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD46/2009

BETWEEN: VINCENT THOMAS O'DONOGHUE
Applicant

AND:

IRELAND
First Respondent

GRAEME NEIL CALDER
Second Respondent

JUDGE:	BARKER J
DATE OF ORDER:	6 APRIL 2009
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The interlocutory application for bail is dismissed.

2.The directions hearing of the application dated 3 April 2009 is otherwise adjourned to Tuesday 14 April 2009 at 9.30am.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD46/2009

BETWEEN: VINCENT THOMAS O'DONOGHUE
Applicant

AND:

IRELAND
First Respondent

GRAEME NEIL CALDER
Second Respondent

JUDGE:	BARKER J
DATE:	6 APRIL 2009
PLACE:	PERTH

REASONS FOR JUDGMENT

1. On 3 April 2009, His Honour Magistrate G N Calder, sitting in the Western Australian Magistrates Court at Perth determined, pursuant to s 19(2) of the Extradition Act 1988 (Cth) (the Act), that the applicant, Vincent Thomas O’Donoghue, is an eligible person for surrender for extradition to Ireland in relation to the extradition offences of obtaining property by false pretences (8 counts) and fraudulent conversion (8 counts). Magistrate Calder thereupon committed the applicant to custody pursuant to s 19(9) of the Act.

2. By application dated 3 April 2009 the applicant sought review of the Magistrate’s decision pursuant to s 21(1) of the Act and applied for immediate bail pending review, pursuant to s 21(6)(f)(iv) of the Act.

3. Under s 21(6)(f)(iv) of the Act, pending the determination of a review application in this Court, bail can only be granted if there are “special circumstances” justifying such a course. The decision of the High Court of Australia in the United Mexican States v Cabal (2001) 209 CLR 165, is on point and relied upon by both the applicant and first respondent.

4. In Cabal, the Court (Gleeson CJ, McHugh and Gummow JJ) at  para 61 stated:

   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…