Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd
[2011] FCA 1431
•7 December 2011
FEDERAL COURT OF AUSTRALIA
Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd [2011] FCA 1431
Citation: Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd [2011] FCA 1431 Parties: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v CHASTE CORPORATION PTY LTD (DEREGISTERED) ACN 089 837 239, BRADDON RALPH WEBB, ORLAWOOD PTY LTD ACN 059 294 334, PETER CLARENCE FOSTER, SEAN PETRIE ALLEN COUSINS, CONSTANTINE XENOUDAKIS, KEVIN ANTHONY MCMULLAN, ALAN KENNETH COOPER and STEPHEN D'ALTON File number: QUD 252 of 2001 Judge: LOGAN J Date of judgment: 7 December 2011 Catchwords: CRIMINAL LAW – bail – whether Court has power to release someone from custody pending the hearing and determination of a contempt charge – discussion of power at common law – power under s 23 of the Federal Court of Australia Act 1976 (Cth) – court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) as an incident of its power to punish for contempt under s 31 of the Act
PRACTICE AND PROCEDURE – whether to release person from custody pending the hearing and determination of a contempt charge – consideration of factors including past and current conduct – discussion of other relevant factors – person released on provision of $125,000 surety or sureties and subject to strict conditions
Legislation: Bankruptcy Act 1966 (Cth)
Federal Court of Australia Act 1976 (Cth) s 23
Dangerous Prisoners (Sexual Offender) Act 2003 (Qld)Cases cited: Australian Competition and Consumer Commission v Chaste Corporation and Others (No 1) (2003) 127 FCR 418 considered
Re Groves [1973] Qd R 310 considered
R v Spilsbury [1898] 2 QB 615 referred to
United Mexican States v Cabal (2001) 209 CLR 165 appliedChitty J, Chitty’s Criminal Law (Vol 1, 2nd ed , London) at p 97
Date of hearing: 7 December 2011 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 38 Counsel for the Applicant: Ms KC Morgan Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the Fourth Respondent: Mr PE Smith with Mr LP Borrow Solicitor for the Fourth Respondent: Fisher Dore Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 252 of 2001
BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
ApplicantAND: CHASTE CORPORATION PTY LTD (DEREGISTERED) ACN 089 837 239
First RespondentBRADDON RALPH WEBB
Second RespondentORLAWOOD PTY LTD ACN 059 294 334
Third RespondentPETER CLARENCE FOSTER
Fourth RespondentSEAN PETRIE ALLEN COUSINS
Fifth RespondentCONSTANTINE XENOUDAKIS
Sixth RespondentKEVIN ANTHONY MCMULLAN
Seventh RespondentALAN KENNETH COOPER
Eighth RespondentSTEPHEN D'ALTON
Ninth Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
7 DECEMBER 2011
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The operation of the warrant for imprisonment of the Fourth Respondent, Peter Clarence Foster (Mr Foster) dated 28 November 2011, under which he is currently held, be stayed until further order.
2.In lieu of his being held pursuant to that warrant and pending the issue of the further warrant for his imprisonment for which this order provides, Mr Foster is to be held in the holding cells in the basement or, so as to permit access to his legal advisers, in a room on Level 7 of the Commonwealth Law Courts Building secured by corrective services officers.
3.A further warrant issue for the imprisonment of Peter Clarence Foster at the Brisbane Correctional Centre pending the hearing and determination of the charge of contempt made against him by the Applicant in these proceedings (the charge) or until such time as the District Registrar certifies in writing to the Manager of that Correctional Centre that the surety or sureties as provided for in this order have been provided such that release as provided for in this order may be effected.
4.Subject to the provision by payment into court or supported by a bank guarantee to the satisfaction of the District Registrar of a surety or sureties in the total sum of $125,000 (One Hundred and Twenty-five Thousand dollars) in the form set out in the Surety Schedule to this order and upon the certification in writing by the District Registrar of the provision of the same to the Manager of the Brisbane Correctional Centre, Mr Foster is to be released, pending the determination of the charge, subject to the following conditions:
(a)He attend and surrender himself into the custody of this Court as and when required by Court order pending the hearing and determination of that charge;
(b)He not have any contact with, or attempt to contact, any witnesses to be called by the Applicant;
(c)He not approach any port or airport of departure from Australia;
(d)He not depart Queensland without the prior written consent of the Applicant;
(e)He reside at 2 Witt Avenue, Carrara in the State of Queensland or such other place in the State of Queensland as may be authorised in writing by the Applicant;
(f)He report daily to the Officer in Charge of the Queensland Police Service at Broadbeach or to the Officer in Charge of such other Queensland Police or other police station as may be nominated in writing by the Applicant.
(g)He not apply for, in his or any other name, any passport or any other travel document of any country.
5.Upon the provision of the surety or sureties provided for in this order to the District Registrar’s satisfaction, the District Registrar is to certify the same in writing to the Manager of the Brisbane Correctional Centre.
6.Prior to his release, Mr Foster is to sign a copy of this order acknowledging that he has read the same. The Manager of the Brisbane Correctional Centre is to forward the original of that document to the District Registrar.
7.The stay of the operation of the warrant for imprisonment of Peter Clarence Foster dated 11 November 2011 is continued, pending further order.
8.Liberty to apply.
9.All questions as to costs are reserved.
Note: For the avoidance of doubt, in this order the term, “District Registrar” includes a Deputy District Registrar.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
THE SURETY SCHEDULE
THIS DEED is made on the ….. day of ………………… 2011.
BETWEEN: (Name of District Registrar)
in her capacity as District Registrar, Queensland District Registry, Federal Court of Australia (District Registrar)
AND:(Name and Residential Address of Surety)
(the Surety)
RECITALS
1.By order of the Federal Court of Australia made on 7 December 2011 (the order) in Proceedings No (P)QUD252/2001 between the Australian Competition and Consumer Commission and the persons, including the Fourth Respondent, Peter Clarence Foster (Mr Foster) named in the Schedule to that order (the proceedings) it was ordered that, subject to the provision by payment into court or supported by a bank guarantee to the satisfaction of the District Registrar of a surety or sureties in the total sum of $125,000 (One Hundred and Twenty-five Thousand dollars) in the form set out in the Surety Scheduled to this order and upon the certification in writing by the District Registrar of the provision of the same to the Manager of the Brisbane Correctional Centre, Mr Foster is to be released, pending the determination of the charge, subject to the following conditions:
(a)He attend and surrender himself into the custody of this Court as and when required by Court order pending the hearing and determination of that charge;
(b)He not have any contact with, or attempt to contact, any witnesses to be called by the Applicant;
(c)He not approach any port or airport of departure from Australia;
(d)He not depart Queensland without the prior written consent of the Applicant;
(e)He reside at 2 Witt Avenue, Carrara in the State of Queensland or such other place in the State of Queensland as may be authorised in writing by the Applicant;
(f)He report daily to the Officer in Charge of the Queensland Police Service at Broadbeach or to the Officer in Charge of such other Queensland Police or other police station as may be nominated in writing by the Applicant.
(g)He not apply for, in his or any other name, any passport or any other travel document of any country.
2.The Surety wishes to provide surety in the sum of (Set out the amount of the surety provided) in accordance with this deed.
OPERATIVE PART
1.The Surety [hereby pays into court the sum of (Set out the amount of the surety provided) the receipt of which is acknowledged by the District Registrar]/[hereby provides to the District Registrar the bank guarantee marked “A” for the sum of (Set out the amount of the surety provided)], which the District Registrar acknowledges is in a satisfactory form (delete whichever is inapplicable).
2.[The Surety hereby undertakes and agrees that the sum paid into court is immediately forfeit to the Commonwealth of Australia in the event that Mr Foster fails to meet or carry out any of the conditions of release specified in the order.]/[The Surety hereby undertakes and agrees that the sum specified in the bank guarantee is immediately forfeit to the Commonwealth of Australia in the event that Mr Foster fails to meet or carry out any of the conditions of release specified in the order and, in such an event, irrevocably authorises the District Registrar, without prior reference to the surety, to make demand upon the bank for the payment of that sum to the Commonwealth of Australia in accordance with that guarantee. (Delete whichever is inapplicable)]
3.The Surety acknowledges that he or she has received a copy of and fully understands the court’s order of 7 December 2011.
4.The Surety further acknowledges that the liability to forfeiture to the Commonwealth of Australia for the sum specified in this deed is not in any way conditional upon the forfeiture of any other surety sum provided by any other surety in accordance with the court’s order of 7 December 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 252 of 2001
BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
ApplicantAND: CHASTE CORPORATION PTY LTD (DEREGISTERED) ACN 089 837 239
First RespondentBRADDON RALPH WEBB
Second RespondentORLAWOOD PTY LTD ACN 059 294 334
Third RespondentPETER CLARENCE FOSTER
Fourth RespondentSEAN PETRIE ALLEN COUSINS
Fifth RespondentCONSTANTINE XENOUDAKIS
Sixth RespondentKEVIN ANTHONY MCMULLAN
Seventh RespondentALAN KENNETH COOPER
Eighth RespondentSTEPHEN D'ALTON
Ninth Respondent
JUDGE:
LOGAN J
DATE:
7 DECEMBER 2011
PLACE:
BRISBANE
REASONS FOR JUDGMENT
Peter Clarence Foster (Mr Foster) is the fourth respondent in proceedings between the Australian Competition and Consumer Commission (the Commission) and Chaste Corporation Pty Ltd (deregistered) ACN 089 837 239).
The Commission alleges that Mr Foster has breached orders made by Lander J in those proceedings in this Court on 2 September 2005. More particularly, it alleges in the statement of charge that in the period from December 2009 to 2 September 2010 Mr Foster:
(a)prepared or caused to be prepared a promotional DVD about a product known as Sensaslim, shown to prospective area managers;
(b)prepared or caused to be prepared and approved, and caused to be published newspaper advertisements advertising the opportunity to become an area manager for the distribution of what was termed the “Sensaslim Solution”;
(c)prepared or caused to be prepared and approved a document entitled “Area Manager Proposal” and disclosure documents for provision to prospective area managers;
(d)engaged in conversations with prospective area managers to encourage entry by them into franchise agreements with Sensaslim for the distribution of the Sensaslim Solution;
(e)engaged in email correspondence with prospective area managers regarding the business of Sensaslim, to encourage entry by them into franchise agreements with Sensaslim and sale of the Sensaslim Solution;
(f)prepared some or all, or caused to be prepared and approved newsletters, circulated by email by Sensaslim to potential area managers and area managers;
(g)controlled and directed the process for engagement by Sensaslim with potential area managers, and entry by Sensaslim into franchise agreements with area managers.
The Commission’s further allegation is that Sensaslim did not as was required by paragraph 29 of the orders made by Lander J, provide area managers or potential area managers with a copy of those orders or make them otherwise aware of those orders.
If proved, the alleged conduct would amount to a breach of those orders.
The Commission sought and obtained from Jacobson J a warrant in the first instance for Mr Foster’s arrest in respect of the alleged contempt. As a result, Mr Foster was apprehended and taken into custody. He has applied for a release from custody. Whether or not an order for release is to be described as “bail” is not the point. There is power to order his release if so persuaded.
At common law a court or any judge in vacation not being restrained or affected by the statute 3 Edward I, ch 15, could in their discretion admit persons to bail in all cases whatsoever: see Re Groves [1973] Qd R 310 at 311 per WB Campbell J (as his Honour then was), referring to R v Spilsbury [1898] 2 QB 615 at 620, where in turn reference is made to Chitty J, Chitty’s Criminal Law (vol 1, 2nd ed, London) at p 97 (Chitty’s Criminal Law).
This, though, is not a situation in my opinion where the power is to be found at common law but rather by necessary implication from the Court’s power to deal with a person for contempt for a breach of one of its orders. In that regard an analogy is to be drawn between the present situation and that considered by the High Court in United Mexican States v Cabal (2001) 209 CLR 165 at [37] and [38].
Considered collectively, the provisions of the Federal Court of Australia Act (1976) (Federal Court of Australia Act) which make this Court, within the limits of its jurisdiction, one of law and equity and the power to make such orders and issue such writs as may be necessary in the exercise of that jurisdiction, confer by implication, in a case where a person is charged with contempt, power to release a person so charged on such terms as the Court considers just pending the hearing and determination of that charge. As is noted in the reference to Chitty’s Criminal Law earlier mentioned, different considerations may arise with respect to whether release may be ordered in the event that a person has been committed for a proved contempt. That is not the present case.
The main question today, therefore, is one of whether, in the exercise of that power in the circumstances revealed on the evidence, Mr Foster’s release should be ordered?
There is a second aspect to today’s application unrelated to the question of whether Mr Foster should be released. That is whether the proceedings, which are presently in the Court’s New South Wales District Registry as a result of the orders made by Jacobson J, should be transferred to the Court’s Queensland District Registry. As to that, the parties are at one that an order for transfer on Mr Foster’s application should be made. There is every reason to make such an order and for the parties to take that position having regard to the location of many of the witnesses who one might apprehend are to give evidence in the substantive contempt proceeding.
As to the allegations which the Commission makes in respect of the charged contempt, it is accepted on behalf of Mr Foster that a serious question to be tried has been raised by those allegations. It must be said at once that there is nothing in that acceptance that in any way constitutes an admission of liability in respect of those allegations. Rather, the concession is a forensic one based on an assessment of the evidence upon which the Commission has relied and nothing more than that. Mr Foster is under no obligation at all at this stage, or for that matter at any stage, to give evidence at all in respect of the charge of contempt made against him. Whether he does so is entirely a matter for him. His failure so to do would in no way be probative of the charge made. It is for the Commission to prove that charge.
What the concession does do, though, is to focus attention, as attention ought to be focussed, on whether, were Mr Foster to be released, there is a risk that he would not attend and surrender himself into custody as and when required by court order? In that regard, there is, in my opinion, an important principle to bear in mind in relation to the holding of persons in custody under our system of justice.
At common law and aside from the offence of murder, a presumption in favour of liberty of the subject prevails with the Crown or its emanations, in this case the Commission, having the onus of showing that, “A man’s prima facie right to be set at liberty until he is convicted should not be given effect”: see The Laws of Australia (Lawbook Co, as at 18 February 2008) Criminal Procedure 11.3 “Bail” at [11.3.330]. Put another way, subject to express statutory provision to the contrary, we do not have in this country continued detention upon the mere allegation of the Executive Government.
The Commission accepted that it fell to it to show why it was that Mr Foster should be held in custody pending the hearing and determination of the charge of contempt.
It is relevant to take into account when such a hearing might occur. Counsels’ estimates were that a hearing might take between one and perhaps one and a half weeks. That seems to me, on the material that I have seen today not an unreasonable estimate although it may be that cross‑examination proves to be such that the hearing takes a little longer. In any event, it is unlikely that the Court, particularly given the time of year, would be able to hear the charge prior to mid February at the earliest or perhaps more likely March of next year. That means that, even on the most optimistic of scenarios and were he not to be released, Mr Foster would be in custody for at least some three months prior to the hearing being completed, to say nothing then on the time over which judgment might be reserved.
While time spent in custody would be relevant to the question as to the length of sentence that should be imposed, that is to state a position which may never come to pass. In other words, it may not be the case that the Commission succeeds in proving its charge in which case the time which Mr Foster had spent in custody would be liberty of which he had been lawfully deprived but deprived nonetheless. That deprivation has a very particular resonance at the present time for this reason: Mr Foster’s mother, Louisa, is an elderly lady who has had the misfortune recently to suffer a stroke which initially saw her hospitalised. Fortunately she has now been discharged but she is nonetheless, on the evidence to hand, not in good health.
There are many things to which I will refer in the course of these reasons for judgment which may be said adversely of Mr Foster’s past. One though which cannot, in my opinion, be said is that over the course of time he has been anything other than close to his mother. The impact of incarceration on that relationship is one which needs no particular elaboration. All that I propose to observe is that it is unlikely that it would assist in Mr Foster’s mother’s health and wellbeing and nor would it be readily possible for there to be support given by a son to an afflicted mother from a prison.
Mr Foster has a sibling Jill, and a niece, Arabella. Again, the evidence discloses that he is close both to his sister and to his niece.
An assessment of Mr Foster’s past discloses that while he has resided and conducted business activities, not always lawfully, overseas, the Gold Coast and in particular where his mother resides, has always been a home base and an attractive force for return to Australia in his life. The likelihood of a departure from Australia while this charge is outstanding must be weighed against that particular background.
As to the wider background of Mr Foster, a helpful summary well supported by the evidence read before me on behalf of the Commission and also for which support is to be found in Mr Foster’s own material was offered by Spender J in Australian Competition and Consumer Commission v Chaste Corporation and Others (No 1) (2003) 127 FCR 418 (Chaste Corporation Case), commencing at [42] and concluding at [56], which is incorporated by reference.
[The passage incorporated by reference is:
[42]Mr Foster has had a sad and lengthy history of dishonesty, deception and evasion. The evidence shows that in about May 2001, in connection with an outstanding Orange telephone account of $16,000, a solicitor who at various times was the solicitor for Chaste sought instructions from Mr Foster to remove himself from the record so that Orange did not have an address for service other than a Surfers Paradise home, and that Orange would then be unable to serve proceedings on Mr Foster's sister through the solicitor, and would be unable to serve the sister if she has now left Australia, as Peter Foster had told the solicitor was the case.
[43]There is evidence suggesting that Mr Foster was prepared to manufacture evidence for the purpose of obtaining necessary visas for residing in Fiji.
[44]I made Mr Foster bankrupt on 26 November 1984. Mr Foster denied in public examinations on 18 April 1985 and on 12 and 13 March 1987 that he was involved in the management of Slimway Tea Co Pty Ltd. On 1 October 1987 Mr Foster pleaded guilty to a charge that whilst an insolvent under administration, he took part in the management of Slimway Tea Co Pty Ltd without the leave of the Court.
[45]In June 1988 a warrant for Mr Foster's arrest and that of his mother was issued in the United Kingdom for their failure to appear on charges concerning contravention of the Trade Descriptions Act 1968 (UK) involving a company called Slimweight Co UK Ltd.
[46]On 5 January 1989 Mr Foster requested his passport from his Trustee and gave an undertaking that he would travel to Taipei and the United Kingdom only. Mr Foster departed Australia on 22 February 1989 and sent letters to the Official Receiver dated 21 and 30 March 1989 purportedly from Solihull in the United Kingdom. However, at that time Mr Foster was in California, contrary to his undertaking.
[47]On 5 July 1989 he was charged in the United States with offences relating to false advertising and the advertising of drugs. On 7 July 1989 he pleaded no contest to three of seven counts and was convicted accordingly. He was ordered, amongst other things, to perform 90 days community service and pay restitution of US$228,000 and investigation costs of US$10,000 before 16 March 1990. He was in prison until 23 August 1989. On that day he was released from prison and taken into custody by US immigration authorities. He was bailed on 24 August 1989 to appear on 3 October 1989 to show cause why he should not be excluded from the United States of America. The United States City Attorney retained Mr Foster's passport.
[48]On 28 August 1989, Mr Foster applied for a replacement passport at the Australian Consulate in Los Angeles. According to a document, which Mr Foster acknowledges is signed by him, the claim was made that the original had been lost. A replacement passport was issued. Mr Foster, before me, swore that the consular official was told of the fact that the Los Angeles authorities had Mr Foster's passport and Mr Foster was directed to fill in the document with the false declaration in it. This explanation is incredible. I simply do not believe Mr Foster as to the circumstances in which a replacement passport was issued in 1989 by the Australian Consulate in Los Angeles.
[49]On 7 September 1989, Mr Foster left the United States and returned to Australia. He did not perform his community service or make the orders, restitution or pay the investigation costs ordered, and he did not attend the immigration hearing scheduled for 3 October 1989. A warrant was issued for his arrest in Los Angeles on 16 March 1990.
[50]In the course of Mr Foster's proceedings in California, a letter from Mr Foster was sent to his accountant in the United Kingdom dated 21 March 1989. That letter said, in part:
“ ... so they don't know where I am, I have said they can communicate with me through my accountant in England, therefore, you may get a fax for me care of your office. If you do can you just direct it on to me here — they do not know I am in America and I certainly don't want them to find out.
I am due to be discharged in November so I only have to stall for a few more months.”
[51]In July 1989 the Official Receiver in Australia became aware from United Kingdom authorities that Mr Foster had never in fact returned to the United Kingdom as he purported to do. On 23 November 1989 Pincus J ordered that Mr Foster's bankruptcy not be discharged.
[52]In 1992 Mr Foster made a number of trips to New Zealand with the aid of his passport, and on each occasion on his return, the passport was returned to the Federal Court in Brisbane. However, on one of those trips Mr Foster did not return to Australia, and he did not return to Australia until his arrest in Darwin in October 1996 when he was travelling under a false passport in the name of Baker. He claims that the Australian authorities were aware of the fact that he was coming to Australia at this time and that he was travelling under a false passport, but I accept the evidence of Mr Roger Cullinan, an officer of the Australian Federal Police, that Mr Foster was not telling the truth when he swore that he did not intend to "sneak back into Australia and avoid authority", nor was there any pre-arrangement that he would be met by authorities in Darwin on his arrival.
[53]Further, in addition to the passport in the name of Baker, Mr Foster had a UK birth certificate and a driver's licence also in the name of Graham Charles Baker.
[54]On 15 November 1996 Mr Foster was convicted on three counts of attempting to induce witnesses to give false testimony and sentenced to 18 months imprisonment, to be released after five months on a recognizance of $1,000 to be of good behaviour for three years. He was also charged with possession of a falsified passport, and an imposition on the Commonwealth, in respect of which he was sentenced to two months imprisonment on each charge.
[55]In 1997 Mr Foster was arrested in connection with extradition proceedings to the United Kingdom to face various charges. In about May 1997 he applied for bail, which was granted upon a surety in the sum of $250,000. Mr Foster failed to appear on 1 December 1997 in connection with the extradition proceedings. A warrant was issued for his arrest. On 8 December 1997 he again failed to appear, and an application was made to have the surety forfeited, which was ordered by a magistrate on 6 February 1998.
[56]On 6 February 1998 Mr Foster was arrested at Frankston, Victoria on the warrant issued for his failure to attend the extradition proceedings. He was charged with, and pleaded guilty to, a number of offences including assaulting police, resisting arrest, escaping lawful custody, damage to Commonwealth property, and was sentenced to six months imprisonment, to be suspended after 14 days. On his release on 18 February 1998, Mr Foster was ordered to Brisbane. Mr Foster subsequently contested his extradition to the United Kingdom in the courts, but was eventually extradited to the United Kingdom.]
Suffice to say as Spender J concluded at [57] in 2003:
Mr Foster has a history of direct involvement in marketing schemes which have resulted in the misappropriation of assets.
There are instances of that conduct not only in this country but also in the United Kingdom and in New Zealand. There are also examples of unlawful conduct in relation to advertising of products in the United States of America. More recently than the circumstances described by Spender J in the Chaste Corporation case, Mr Foster left or, perhaps more accurately, was expelled from Fiji shortly after the most recent military coup in that country. He turned up, for he was not an invitee, thereafter in Vanuatu. The absence of an invitation by way of visa to enter that country saw him incarcerated there for a short period. Thereafter he returned to Australia on a short‑term travel document, not a passport, to answer charges of money-laundering. Those charges saw him convicted and imprisoned for a period of four and a half years. He was released on parole in 2009 with his parole period expiring earlier this year.
Were the Commission to prove its charge of contempt, a question would arise as to whether Mr Foster had breached paragraph 1 of the terms of his parole, which required that, amongst other things, he do what we are all obliged to do, which is to obey the law. That aside though, and more materially for present purposes, there is nothing in the material read today which would suggest that Mr Foster did other than comply with the terms of his parole. The terms which are particularly pertinent for present purposes are the terms relating to his compliance with the reasonable requirements of his corrective services’ officer parole supervisor and otherwise obeying a series of restrictive parole conditions.
There is no doubt that, prior to this most recent period of parole, Mr Foster has a history which includes non-attendance at court fixtures either in this country or abroad. That is a relevant factor, indeed a highly relevant factor, to take into account in deciding whether or not to release him.
Against that, though, must be balanced more recent history, both in terms of compliance with parole conditions and also familial relations and an afflicted mother.
Yet another relevant consideration is what risk as to flight might be presented, or what temptation as to flight might be presented by the jeopardy in which Mr Foster finds himself as a result of the charge made? The sentence to impose in respect of that charge, if proved, is, of course, and can only be, a matter for the judge hearing that case. Nonetheless, it is relevant to take into account what might be imposed by way of penalty for that charge if it were proved. It was accepted, and in my respectful opinion rightly accepted, by his counsel that it was likely that a sentence of imprisonment would attend that charge if it were proved. Further, there is at least a reasonable likelihood that any sentence of imprisonment would, given Mr Foster’s antecedents, necessarily have to be a very salutary one indeed. I expressly take that contingency into account in deciding whether or not to release Mr Foster.
Mr Foster proposed not only particular reporting conditions and related conditions in the draft order proffered via his counsel but also a condition which would entail a form of electronic monitoring. It seems that such monitoring is available via private contractors. Experience from practice tells me that such monitoring is not uncommonly ordered, albeit not via private contractors, in relation to persons falling for consideration under Dangerous Prisoners (Sexual Offender) Act 2003 (Qld) in this State. I accept that the breadth of the Court’s powers under s 23 of the Federal Court of Australia Act is such that it would be within power to make an order providing for such monitoring.
Also raised in the course of submissions in relation to the contingency that release might be ordered was the question of whether that release should only be ordered in the event that sureties were provided? In that regard also, history intrudes. In the past, a third party forfeited no less than a quarter of a million dollars as a result of standing surety for Mr Foster. It was put on the part of the Commission that any surety sum should take into account the erosion in the value of money since that time, now more than a decade ago. That is relevant but not decisive. The amount of a surety should be such as is likely to enhance the probability that the person charged will attend and surrender him or herself into custody but not be so large as to make an order for release effectively illusory.
In this regard, it is relevant to note that, of a class of persons whom one might expect would be prepared, or at least asked, to stand surety for Mr Foster, those persons are affected by orders of this court requiring them to maintain a particular minimum level of assets: see the orders made by Jacobson J on 30 September 2011 in proceeding NSD 1163 of 2011 in respect of Mr Foster’s mother, his sister and his niece, amongst others.
I do have evidence before me by way of affidavits from each of those persons as to their assets. The order of 30 September 2011 is focussed upon the value of assets in Australia. The affidavits present a wider picture and reveal asset bases in excess of the amounts respectively specified in those orders. What I derive from that is that there is a capacity in the class to which I have referred to stand surety, although it remains to consider whether Mr Foster should be released and then, if so, whether sureties should be ordered.
In many ways, given Mr Foster’s past, the temptation is not to release him. In the Chaste Corporation Case Spender J expressed the belief on the material before his Honour that there was a strong chance that Mr Foster would not remain in the jurisdiction or return to it to contest the allegations made against him by the Commission. There was, with respect, ample reason, as his Honour’s reasons disclose, for that belief. It in no way diminishes the reasonableness of that belief that Mr Foster did remain to contest those charges. What it does show though is that there is an uneven pattern in relation to attendance. There is not a consistent pattern of defiance of obligations to attend or remain within a jurisdiction and, as I have said, the most recent evidence of all in relation to compliance with obligations is that offered in relation to parole.
Taking all of the considerations that I have mentioned into account and bearing in mind the presumption which I have mentioned, I propose to take something of a chance with Mr Foster. That something of a chance is to order his release but on very particular terms. Those terms will include provision of a surety or sureties in the total sum of $125,000. The other orders that I propose to make will take up the suggestions put by Mr Foster via his counsel in the draft.
The stay of the warrant for imprisonment of 11 November 2011 will be subject to the provision of a surety or sureties in the total sum that I have mentioned. The intent of that is that one person need not stand surety for $125,000, as opposed to a number of persons who may, in separate amounts, stand surety such that a total of $125,000 is provided. The order for his release will be conditional upon the provision of those sureties. If they are provided, then he is to be released pending the determination of the current proceedings, commenced 11 November 2011, for contempt, subject to these conditions:
(a)that he attend and surrender himself into the custody of this court as and when required by court order, pending the hearing and determination of that charge;
(b)he not have contact with, or attempt to contact, any witnesses to be called by the Commission;
(c)he not approach any port or airport of departure from Australia;
(d)he not depart Queensland without the prior written consent of the applicant;
(e)he reside at 2 Witt Avenue, Carrara in the State of Queensland, or such other place in the State of Queensland as may be authorised in writing by the applicant;
(f)he report daily to the officer in charge of the Queensland Police Service at Broadbeach or to the officer in charge of such other Queensland or other police station as may be nominated in writing by the applicant;
(g)he not apply for, in his or any other name, any passport or any other travel document of any country.
I have made provision in relation to the restriction in respect of passport application in this particular way because of evidence before me that Mr Foster has in the past used a passport that was not in his name. I have also taken into account that Mr Foster is presently a bankrupt and subject to a regime under the Bankruptcy Act 1966 (Cth) which provides for particular restrictions in any event.
I shall also provide for liberty to apply. The intent of that is not to encourage or discourage applications in respect of the orders in respect of the release, but rather to provide for the contingency that it may not be possible for the parties to reach agreement as to a particular variation order. In the event that there is agreement reached, the parties have liberty to lodge with the registrar a consent signed by their solicitors respectively proposing the making of particular orders. If I regard those proposed orders as satisfactory, I shall make orders in chambers without the need for a formal application or appearance.
The other order which I make is to reserve questions in relation to questions of costs.
It will also be necessary, pending the provision of sureties, to provide for Mr Foster’s continuing custody. The further order, then, is that a warrant issue for the further imprisonment of Peter Clarence Foster, pending the hearing and determination of the charge or the provision of sureties as provided for by this order such that release in accordance with this order may be effected.
I shall also order that the proceedings be transferred from the New South Wales Registry to the Queensland Registry.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 14 December 2011
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