Bertran v Vanstone [1999] FCA 464

Bertran v Vanstone [1999] FCA 464

The magistrate did not misconstrue s 15(2) or s 15(6), fail to ask the correct question, or miscarry in discretion. His reasons showed that he considered the applicant's asserted Mexican bail entitlement, the stay of the Mexican arrest warrants, and the other matters relied on, against the relevant criteria. He was not bound to find that either the applicant's entitlement to bail in Mexico or the Mexican stay orders constituted special circumstances, and it was open to him to find that only the anticipated length of incarceration was a special circumstance and that it did not overcome the presumption against bail in light of the evidence of risk of flight.

Jurisdiction
Australia
Judgment Date
23 April 1999
Procedural Posture
Extradition Bail Application / Motion Challenging Refusal of Bail / Federal Court Motion After Magistrate Refused to Remand the Applicant on Bail Pending Extradition Eligibility Proceedings
Outcome
The motion dated 29 March 1999 was dismissed; the specified part of the applicant's claim was dismissed; the applicant was ordered to pay the first respondent's costs of the motion, with other costs reserved.
Legal Topics
['special Circumstances Under Extradition Act 1988 S 15(6)' 'remand on Bail Pending Extradition Proceedings' 'availability of Bail in Requesting Country' 'stay of Foreign Arrest Warrants' 'risk of Flight']
['extradition' 'bail' 'administrative Law'] ['special Circumstances Under Extradition Act 1988 S 15(6)' 'remand on Bail Pending Extradition Proceedings' 'availability of Bail in Requesting Country' 'stay of Foreign Arrest Warrants' 'risk of Flight']

Case Brief

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Procedural Posture

Extradition Bail Application / Motion Challenging Refusal of Bail / Federal Court Motion After Magistrate Refused to Remand the Applicant on Bail Pending Extradition Eligibility Proceedings

Legal Issues

  1. 1 ["Whether the magistrate misconstrued Extradition Act 1988 s 15(2) and s 15(6) by not treating the applicant's asserted entitlement to bail in Mexico as a special circumstance." 'Whether provisional or definite Mexican stay orders suspending execution of arrest warrants constituted special circumstances justifying remand on bail.' 'Whether the magistrate failed to apply relevant criteria, including broad community standards, or otherwise miscarried in the exercise of discretion.']

Ratio Decidendi

The magistrate did not misconstrue s 15(2) or s 15(6), fail to ask the correct question, or miscarry in discretion. His reasons showed that he considered the applicant's asserted Mexican bail entitlement, the stay of the Mexican arrest warrants, and the other matters relied on, against the relevant criteria. He was not bound to find that either the applicant's entitlement to bail in Mexico or the Mexican stay orders constituted special circumstances, and it was open to him to find that only the anticipated length of incarceration was a special circumstance and that it did not overcome the presumption against bail in light of the evidence of risk of flight.

Court Disposition

The motion dated 29 March 1999 was dismissed; the specified part of the applicant's claim was dismissed; the applicant was ordered to pay the first respondent's costs of the motion, with other costs reserved.

Orders

  • ['The motion, notice of which is dated 29 March 1999, be dismissed.' "That part of the applicant's claim set out in paragraph F at page three of the application dated 19 March 1999 be dismissed." "The applicant pay the first respondent's costs of the motion." "The costs of the hearing of that part of the applicant's...