R v Dutton

[2001] NSWSC 135

CITATION:	R v Dutton [2001] NSWSC 135
FILE NUMBER(S):	SC 071106/01
HEARING DATE(S):	12 February 2001, 21 February 2001
JUDGMENT DATE:	21 February 2001
PARTIES :	R v Edward Isaac Dutton
JUDGMENT OF:	Howie J at 1

COUNSEL :	P. Neil SC (Respondent) Applicant in person
SOLICITORS:	Commonwealth Director of Public Prosecutions
LEGISLATION CITED:	Extradition Act 1988 - ss 15, 16, 19, 21, 22 Extradition (Republic of South Africa) Regulations
CASES CITED:	Cabal v United Mexican States [2000] FCA 7; [2000] FCA 1892 Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 Von Arnim v Federal Republic of Germany [1999] FCA 1747 Wu v Attorney General of the Commonwealth & Ors (1997) 79 FCR 303 Bertran v Vanstone & Ors (1999) 94 FCR 404 Holt v Hogan (No. 1) (1993) 44 FCR 572
DECISION:	Bail is refused.

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

HOWIE J

WEDNESDAY 21 FEBRUARY 2001

071106/01 - BAIL APPLICATION OF EDWARD ISAAC DUTTON

JUDGMENT

1 HIS HONOUR: On 18 December 2000 a magistrate, Ms O'Shane, determined under s 19 of the Extradition Act 1988 that Edward Dutton ("the applicant") was eligible for surrender to the Republic of South Africa ("the respondent") in respect of a number of fraud offences with which the applicant had been charged in that country. As a consequence of the making of that determination, the magistrate issued a warrant committing the applicant to prison, as she was required to do by s 19(9)(a).

2 The applicant has sought a review of that determination in this court under s 21(1) of the Act and has made an application for bail. Where an application for review of such an order has been lodged, this Court has power to grant bail to the applicant under s 21(6). Section 21(6)(f) relevantly provides:

"the court to which the applicant or appeal is made may:
(iii) order that the person be kept in such custody as the Court directs; or
(iv) if there are special circumstances justifying such a course, order the release on bail of the person on such terms and conditions as the Court thinks fit;
until the review has been conducted or the appeal has been heard."

Background to this application

3    The applicant was arrested on 17 January 1990 for offences of fraud allegedly committed by him in South Africa in the period 1986 to 1989. He was released to bail on those offences on 2 February 1990.

4    On 27 January 1992 the trial of the applicant on those charges commenced in the Supreme Court of South Africa. On 7 February 1994, while the trial was still proceeding, the applicant failed to appear at court to answer his bail. On 3 July 1994 the applicant entered Australia using a passport issued to a person named Addison. He departed Australia on 30 September but re-entered this country on 18 October 1994. The applicant used the name of Addison to purchase property and for the purpose of registering a business name in Australia.

5 The respondent requested the applicant's extradition on 3 October 1995, and on 18 December 1995 the Commonwealth Attorney-General signed a notice under s 16(1) of the Act directed to a magistrate and indicating that the request had been received. On 24 November 1995 the applicant was arrested upon a warrant issued under the Act and taken into custody.

6 Extradition proceedings under s 19 took place before a magistrate and were determined by a finding that the applicant was not eligible to be surrendered to South Africa in relation to the alleged extradition offences. This was because the magistrate had rejected evidence which was tendered by the respondent in order to satisfy the "sufficient evidence" test which was required to be satisfied under the Extradition (Republic of South Africa) Regulations as they stood at that time. As a consequence of this determination, the magistrate ordered the release of the applicant.

7    The respondent sought a review of the magistrate's ruling rejecting the evidence tendered by the respondent. Hill J determined certain preliminary questions arising on the application for review but the applicant sought to challenge these rulings by an application for leave to appeal. However, these proceedings were effectively cut short by an amendment to the Extradition (Republic of South Africa) Regulations that took effect on 21 May 1997. By this amendment the respondent was relieved of the requirement to satisfy the "sufficient evidence" test.

8 The respondent made a second request for the extradition of the applicant at the beginning of 1998 and on 28 January of that year the Minister for Justice and Customs issued a notice under s 16 (1) of the Act in respect of that request.

9 On 17 February 1998 the applicant was again arrested upon an extradition warrant. In order to pursue proceedings in relation to the second s 16 notice, the respondent sought to discontinue the application for review that was currently before the Federal Court. The applicant commenced proceedings seeking an injunction to restrain the launching of a fresh extradition proceeding.

10 On 4 March 1998 Madgwick J made consent orders designed to facilitate the resolution of the proceedings before the Federal Court so that hearing of the second extradition request could proceed. For present purposes it is unnecessary to set out in full the consent orders made, but they were designed to permit the extradition hearing to proceed provided that the applicant was granted bail by the magistrate under s 15 of the Act.

11 However, by reason of s 15(6), the magistrate could only remand the applicant on bail if the magistrate was satisfied that there were special circumstances justifying such remand. Accordingly, the first order made by Madgwick J required the respondent to submit to the magistrate that special circumstances existed justifying the remand of the applicant on bail on conditions including those set out in the consent order.

12 On 5 March 1998 the applicant appeared before Magistrate Moore and was granted bail under s 15, and, in accordance with the intention of the parties set out in the consent orders, on 6 March 1998 Hill J dismissed the respondent's application for review.

13 The proceedings relating to the second extradition request were mentioned in the Local Court on 19 March 1998. On 30 March 1998 the applicant sought a stay of these proceedings. That application was dismissed on 7 January 1999. Further proceedings were commenced by the applicant challenging the second s 16 notice and seeking orders including a stay of the extradition proceedings. On 23 April 1999 these proceedings were dismissed. An appeal against this dismissal was unsuccessful, clearing the way for the extradition proceedings to continue before the Local Court.

14    The proceedings before Magistrate O'Shane commenced on 29 July 1999. There were numerous adjournments of the hearing throughout 2000 and it was not concluded until 1 December 2000. As I indicated at the outset of these reasons, the magistrate made her determination against the applicant on 18 December 2000. The applicant has been in custody since that date.

15    There is a dispute between the parties on the details of almost every aspect of the matter, ranging from the facts surrounding the arrest of the applicant in South Africa through to what transpired in the proceedings before the magistrate on 16 November 2000. I do not believe it is necessary for me to resolve any of the facts that are in contention in order to determine the issue before me.

The requirement of "special circumstances"

16 The issue of "special circumstances" in relation to the grant of bail under s 21(6)(f)(iv) has been considered by the Federal Court on numerous occasions. The submissions placed before me by the parties have referred to a number of decisions of that Court and to statements of the principles to be applied when determining an application for bail under that section. There is no dispute between the parties as to the approach this Court should take to the issue of "special circumstances" and I am content to follow the principles that have been stated and applied by the Federal Court.

17    I do not intend to set out in detail the comments that have been made about the approach that a court is to take to the finding of "special circumstances" in order to reflect the policy behind the restriction on the granting of bail. They were recently reviewed by Goldberg J in Cabal v United Mexican States [2000] FCA 7. The principles, which I believe can be extracted from the decisions of the Federal Court, are as follows:

1. The use of the term "special circumstances" imports a presumption against bail and imposes an onus upon the applicant to satisfy the court that the precondition for the grant of bail has been established: Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70; Von Arnim v Federal Republic of Germany [1999] FCA 1747;

2. The purpose of the requirement that "special circumstances" exist is to take account of the perception that there is a very high risk of persons sought for extraditable offences absconding: Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70; Wu v Attorney General of the Commonwealth & Ors (1997) 79 FCR 303; Bertran v Vanstone & Ors (1999) 94 FCR 404;

3. The term refers to circumstances that are different from the circumstances which ordinarily apply where a person is in custody pending extradition proceedings and which by their nature warrant a more favourable view in relation to bail: Wu v Attorney General of the Commonwealth & Ors (1997) 79 FCR 303; Bertran v Vanstone & Ors (1999) 94 FCR 404;

4. In determining whether "special circumstances" have been established there is a necessity to balance the general purpose of the requirement against the particular interests of the applicant and the broader community standards, including the liberty of the subject: Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70; Bertran v Vanstone & Ors (1999) 94 FCR 404;

5. What are "special circumstances" will vary from case to case and matters, which may not be decisive by themselves, may in combination satisfy a court that it is justified in ordering the release of the applicant to bail: Cabal v United Mexican States [2000] FCA 7.

18 It has been held repeatedly in the Federal Court that s 21(6)(f)(iv) requires a court to approach the question of bail by a two step process: the court determines whether there are "special circumstances" giving rise to the jurisdiction to grant of bail and, if such circumstances exist, the court considers its discretion whether to grant the applicant bail and on what conditions: for example Shoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 at 74; Holt v Hogan (No 1) (1993) 44 FCR 572 at 579; Bertran v Vanstone & Ors (1999) 94 FCR 404 per Sunberg and Merkel JJ at 412; and Cabal v United Mexican States [2000] FCA 1892 at para 70. Under this approach the finding of special circumstances has been considered to be a "condition precedent" to the exercise of the discretion to grant bail.

19    Although, I favour the contrary view taken by Finkelstein J in Bertran v Vanstone at 419, that there is no two step approach required by the section, it is unnecessary for the purposes of this application to resolve that issue. I am prepared to adopt the approach which has generally been followed by the Federal Court and which was held to be the correct approach by the majority in Bertran v Vanstone. The respondent conceded that, if special circumstances were found to exist, there was no reason why bail should not be granted to the applicant.

20    It was submitted by the applicant that I should find that special circumstances exist by reason of the fact that such a finding was made at the time the applicant was released to bail on 5 March 1998. That was a finding made for the purposes of 15(6). In this regard the applicant relied upon the decision of Gray J in Cabal v United Mexican States [2000] FCA 1892 where his Honour held that there was an issue estoppel created by a finding that special circumstances existed at a particular date. His Honour stated at paragraph [21]:

"There can be no doubt that the Court to which an appeal has been made from a judgment given on a review of a magistrate's decision has a fresh power to hear a bail application. This does not mean, however, that an applicant for bail in such circumstances is at large as to the facts to be relied on. It appears to me that, once a determination has been made on the question of "special circumstances", as at a particular date, that determination is binding on the parties to the proceeding as to the circumstances at that date. Even in another proceeding, in my view, the parties remain bound by that determination on the question of “special circumstances”. In my view, an issue estoppel exists as to such a determination, so that the facts as they existed at the date of the earlier determination cannot be reopened and grounds which were not argued in respect of the earlier application cannot now be relied upon. Conversely, if a Court has once determined that "special circumstances" do exist, successive applications can be made to different courts or different judges for the exercise of the discretion to grant bail, without the need to re-establish on each such application that "special circumstances" exist. Only if the "special circumstances" have ceased to exist could a Court decline to consider the exercise of its discretion."

21    Even if I were to accept this as a correct statement of the principles to be applied where a court has considered and determined the issue of the existence of "special circumstances" between the parties, it is not clear in the present case what were the special circumstances found by the magistrate to justify release of the applicant to bail. The reasons of the magistrate for granting bail to the applicant have not been placed before me. It may be that, in light of the fact that there was no dispute between the parties as to the existence of "special circumstances", the magistrate did not see the need to give reasons for his decision to grant bail to the applicant. The transcript of the proceedings before the magistrate on 4 March 1998 is annexed to the applicant's affidavit filed in these proceedings. Remarks by the magistrate on that day indicate that he would not have granted bail but for the stance taken by the respondent.

22    Paragraph 45 of the affidavit of the Senior Assistant Director in the Sydney Office of the Commonwealth Director of Public Prosecutions in evidence before me states (in reference to the bail application determined by Magistrate Moore):

"The "special circumstances" found to exist at the time of that bail application in March 1998 were:

(a) the Plaintiff had, by that date, been held in custody in respect of the first extradition request for a period of 12 months;

(b) he had been at large from the date of his release at the conclusion of those proceedings (29 November 1996) until he was arrested on the second provisional warrant issued under the Extradition Act on 17 February 1998;

(c) at the time of second request, the Plaintiff had been discharged by the magistrate following a hearing under s 19 of the Extradition Act;

(d) he indicated an intention to resist the application for extradition."

23    It is not clear to me that it is being asserted in that paragraph that these were the special circumstances found by the magistrate. It may well be that these were the matters which were considered by those appearing for the respondent to amount to "special circumstances" which justified their participation in the consent orders made by Madgwick J.

24    The applicant has placed before me a list of matters which he says were the circumstances existing at the time bail was granted to him and which he believes formed the basis of the finding that "special circumstances" existed. These matters relate to the personal circumstances of the applicant at the time of the bail hearing.

25    The difficulty in applying any issue estoppel in the present case is that this court cannot identify the circumstances that, either individually or in combination, gave rise to a finding of special circumstances justifying the remand of the applicant on bail in March 1998. Without identifying the special circumstances found by the magistrate to exist in March 1998, the Court cannot determine whether or not they exist at the present time.

26    In any event the application of the principle would only bind the parties as to the existence of circumstances in March of 1998. I am concerned with the circumstances at the time of the application before me and it is clear that one particular circumstance, which now exists and which did not exist in 1998, is the determination made by Magistrate O'Shane that the applicant is eligible for surrender and that he had not satisfied her that his extradition objections under s 7 of the Act were made out. The respondent submits that this is a circumstance that would significantly affect a finding as to whether "special circumstances" now exist.

27 The applicant submitted that, because the determination under s 19 was made by a magistrate and it is to be reviewed by this Court, that finding should be considered to be provisional and should not be accorded such weight as to deprive him of the benefit of the existence of special circumstances in March 1998. Further, he submits that not only do the circumstances that existed in March 1998 continue to the present time, but also there are additional circumstances now in existence that would warrant a finding of "special circumstances" for the purposes of the present application.

28    Notwithstanding that the determination of Magistrate O'Shane is open to review by this Court by way of rehearing on the material before her, it is a finding made by a competent court after a lengthy hearing in which the applicant was legally represented. I have not been asked to evaluate the prospects of the application being determined in favour of the applicant and I have no material before me on which any evaluation could properly be made.

29 It is not without significance that the legislature considers a determination under s 19 to be such a significant step in the extradition process that it has denied the magistrate the power to grant bail to the person who is the subject of the determination and has required that the person be immediately committed to prison. The legislature clearly believes that, notwithstanding that the determination is open to review, the finding that a person is eligible for surrender will significantly increase the prospects of flight by that person.

30 I must take into account the finding made by the magistrate and I should consider the personal circumstances of the applicant and the general community values balanced against the fact that, subject to review by this Court, the applicant is liable to be extradited and the impact of that finding upon the likelihood of the applicant fleeing the jurisdiction. I also take into account that, even if the review in this Court is against the applicant, his extradition is still subject to a determination by the Attorney General under s 22(3)(c)(iv).

Personal circumstances of the applicant

31    The applicant, as I have already indicated, came to Australia in 1994 under a false passport and fleeing from the jurisdiction of the Supreme Court of South Africa. However, the applicant has no prior convictions.

32    The applicant was arrested in November 1995 in respect of the first extradition request and remained in custody until November 1996. He was rearrested in respect of the second request on 17 February 1998 and remained in custody until released to bail on 4 March 1998. He was on bail in respect of the present proceedings from that date until he was committed to prison on 18 December 2000. As I have already indicated, he has remained in custody until the present time.

33    The applicant has an Australian wife and a child aged 14 months who was born in Australia. He has property in Australia and has taken steps to establish a business here although this has been frustrated by the extradition proceedings and his periods of incarceration. He has a close and caring relationship with his mother-in-law, who, he claims, is dependent upon him.

34    He has a valuable asset in the family home. This property was used as security for the bail granted to him in March 1998 and is available to be used as security if he is granted bail by this Court.

35    The applicant has suffered from the effects of a heart condition that he believes is the result of stress arising from the extradition proceedings. He has been admitted to hospital on two occasions prior to July 2000 and is being prescribed flecainide while in custody. This drug causes drowsiness and impairs his ability to prepare his application for review.

Do "special circumstances" exist?

36 As I have already indicated, the personal circumstances of the applicant have to be considered against the purpose for which the legislature has limited the power of a court to grant bail to a person who has been the subject of a determination under s 19(9). There is a presumption against the applicant being granted bail.

37    However, in considering the policy behind the requirement that "special circumstances" exist, I note that there is no treaty between Australia and the respondent, the obligations of which need to be supported by a restrictive approach to the grant of bail; Wu v Attorney-General of the Commonwealth & Ors (1997) 79 FCR 303 at 307. But that is a matter that appears to me to have less significance where the extraditable person is a fugitive from justice, as is the applicant.

38    I take into account that the applicant spent a period of about 12 months in custody as a result of the first request. However, in light of the way those proceedings came to a conclusion, I am not prepared to treat those proceedings as a failed application in the way that the earlier proceedings were considered in Wu v Attorney General of the Commonwealth & Ors (1997) FCR 303 at 307. Further, the applicant has already been in custody for two months since the determination of the magistrate. Perhaps more importantly, there is uncertainty as to when the review will be determined in this Court. Even with expedition, it can be anticipated that the applicant will spend some months in custody before the review is determined if bail is not granted to him.

39 It is relevant that the applicant spent a period of 20 months on bail in respect of the present proceedings and there is no suggestion that he breached his bail conditions during that period. However, that bail was granted at a time before the hearing under s 19 had commenced.

40    The applicant relies upon the difficulty that he has in properly instructing his counsel in preparing for the review while in custody where he is denied full access to the documents that he wished to place before the magistrate but which were rejected by her. Although the respondent has taken on the burden of preparing the documents for the purpose of the review, the applicant is concerned that he will be prejudiced by his incarceration in ensuring that all material, which should be placed before this Court for the purpose of the review, is in fact before it.

41    However, even accepting that there may be a dispute as to the material which should be properly placed before this Court for the purpose of the review, there is not the same need for the applicant to be free in the community in order to properly prepare his case as there might have been during the proceedings before the magistrate. The applicant has reasonable access to counsel who was involved in the proceedings before the magistrate, and who was able to prepare very full and helpful submissions for the bail proceedings before me even though he was not able to appear for the applicant in person.

42    In the applicant's written submissions reliance is placed upon the nature of the offences for which the respondent was on trial in South Africa as being less grave and of a kind where, at least in the United States, bail is readily granted. However, the applicant placed evidence before this Court to support his submission that he fled from South Africa because he feared for his own safety rather than because he feared conviction of the offences for which he was on trial. The respondent has disputed the applicant's version of events set out in his affidavit and has placed further evidence before me which was given at the extradition hearing. This has resulted in the applicant himself placing material in contest to the material placed before me by the respondent.

43    I do not believe it is necessary for me to resolve this issue. The fact is that the applicant has stated formally and in his particulars of objection to extradition, that his life would be in serious jeopardy if he were returned to South Africa. His belief, whether justified or not, does not engender confidence that the applicant would not abscond if he thought it necessary to do so. The charges which the applicant faces in South Africa are serious matters and it is clear that the applicant will fight his return to South Africa with all the means he has available to him. He is an intelligent, resourceful and steadfast man and I believe there is a risk of his flight from this country if he formed the view that he was at risk of surrender to South Africa. The first step in that surrender has occurred, even though it may be only a provisional one.

44    The proceedings have a lengthy history but Senior Counsel appearing for the respondent informs me that the delay in the finalisation of this matter is not exceptional for extradition proceedings. An important and distinguishing feature of this case, not present in other cases on which the applicant relies, is that the applicant is in Australia as a fugitive who absconded during the course of his trial before the Supreme Court.

45    I am not persuaded that there are exceptional circumstances at this point of time justifying the grant of bail to the applicant. However, no hearing date of the review has been fixed in this Court. It may well be, in light of the fact that I am not prepared to release the applicant on bail, that the matter can be granted expedition. A changed circumstance which might enliven a reconsideration of whether there are special circumstances in this case could be the period that the applicant would be required to remain in custody pending the hearing of his review.

46    Bail is for those reasons refused.

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Last Modified: 03/19/2001