E v Australian Red Cross Society

Re: NEVIL MARTIN SCHOENMAKERS
And: DIRECTOR OF PUBLIC PROSECUTIONS
Nos. WA G53 and 54 of 1991
FED No. 603
Criminal Law - Extradition
(1991) 105 ALR 273
(1991) 31 FCR 429
(1991) 58 A Crim R 38

COURT

IN THE FEDERAL COURT OF AUSTRALIA)

WESTERN AUSTRALIA DISTRICT REGISTRY)
GENERAL DIVISION) Foster J.(1)

CATCHWORDS

Criminal Law - Bail - Recognisances - Forfeiture and Estreatment - Recognisances granted as a condition of bail under s 21 Extradition Act 1988 (Cth) - Jurisdiction of the Federal Court to forfeit and estreat - Whether a discretion exists to estreat - Principles to govern discretion to estreat - Whether recognisance need specify date and time of next sitting of the Court.

Extradition - Bail - s 21 Extradition Act 1988 (Cth) - Forfeiture and Estreatment of Recognisances.

Extradition Act 1988 (Cth) - s 21

Bail Act 1982 (WA) - s 49

Federal Court of Australia Act 1976 (Cth) - s 23

R v Rademeyer (1985) 59 ALR 141

Norwood v Robbins (1991) WAR 384

R v Southampton Justices, Ex p Green (1975) 1 QB 11

R v Mesiti (1984) WAR 21

R v Uxbridge Justices, Ex parte Heward-Mills (1983) 1 All ER 530

R v Southampton Justices, Ex p Corker (1976) SJ 214

R v Waltham Forest Justices, Ex p Parfrey (1980) Crim LR 571

Re McKinnon (1986) 40 SASR 326

R v Rigney (No.2) (1988) 49 SASR 389

Re King and Scott (1931) NZLR 162

Bell v Crane (1873) LR 8 QB 481

HEARING

CANBERRA

#DATE 26:9:1991

Counsel for the Director of
Public Prosecutions: S.W. O'Sullivan

Instructed by: Director of Public Prosecutions

Counsel for Mr and Mrs Ehlers: G.P. O'Brien

Instructed by: Bayly and O'Brien

ORDER

The recognisance in the amount of $100,000 entered into by Victoria Elisabeth Ehlers and Ian Desmond Ehlers pursuant to the order of his Honour Mr Justice French made on 21 June 1991 in these proceedings, be estreated.

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

JUDGE1

The Notice of Motion in these proceedings was taken out on 13 August 1991. Only paragraphs 6 and 7 remained to be dealt with when the matter came before me on 6 September 1991. There was no opposition to the making of the order sought in paragraph 6. That order, and orders ancillary to it, have now been made by consent.

The order sought in paragraph 7 is as follows:-

"The recognisance in the amount of $100,000.00, entered into by Victoria Elisabeth Ehlers and Ian Desmond Ehlers pursuant to the order of his Honour Mr Justice French made on 21 June 1991 in these proceedings, be estreated."

The making of this order is opposed. It is, accordingly, necessary to refer briefly to the course of events which brings this matter before the Court.

Nevil Martin Schoenmakers was arrested in Perth on 23 July 1990 on a provisional warrant issued under s 12 of the Extradition Act 1988. The arrest followed upon a request made by the Government of the United States of America to the Attorney-General of the Commonwealth. There was a hearing before a Stipendiary Magistrate of the question whether he was eligible for surrender to the United States. On 27 November 1990 the Magistrate held that he was so eligible and, by warrant, committed him to custody in a remand centre.
Mr Schoenmakers applied to the Supreme Court of Western Australia, pursuant to s 21 of the Extradition Act 1988 for review of the order of the Magistrate. This application for review was heard and dismissed by the Supreme Court (Walsh J) on 22 May 1991. On 4 June 1991 Mr Schoenmakers appealed from this decision to the Federal Court of Australia. It was known that the appeal would be heard by a Full Court on or about 1 August 1991. Mr Schoenmakers, who had been in custody since his arrest, filed a Notice of Motion in the Federal Court on 14 June 1991 seeking an order under s 21(6)(f)(iv) of the Extradition Act 1988 that he be released on bail until the hearing. This motion was heard by French J on 20 June 1991. On 21 June 1991 his Honour granted bail on conditions. The terms of the orders made by his Honour were as follows:-

"1. The Applicant be released from custody on bail upon him entering into a recognisance in the sum of $100,000 in a form to be approved by the Respondent with IAN DESMOND EHLERS and VICTORIA ELISABETH EHLERS as sureties with an undertaking before a Justice of the Peace of $100,000.00 and subject to him

a) surrendering his passport or passports to the Australian Federal Police

b) not applying for the issue to him of an Australian passport c) residing at the home of Tricia Denise Roberts at Unit 1, 9 Henry Street Midland and remaining at all times within the metropolitan area of Perth and d) reporting twice daily to the officer in charge, General Duties Section, Midland Police Station, Spring Park Road, Midland between the hours of 8.00am and 9.00am and 5.00pm and 6.00pm.

2. There be liberty to vary the terms and conditions of the bail or to revoke the bail order."

The sureties referred to in this order, Ian Desmond Ehlers and Victoria Elisabeth Ehlers are respectively the brother-in-law and sister of Mr Schoenmakers. Tricia Denise Roberts is Mr Schoenmakers' de-facto wife and the unit in Henry Street Midlands is the home in which he cohabited with her when in Perth. It should also be noted that the offences in respect of which extradition was sought to the United States were serious drug-related offences in that country.
Mr Schoenmakers failed to appear at the hearing of the appeal on 2 August 1991. The belief is expressed in the affidavit of David Russel Alexander, acting Assistant Director in the Perth office of the Commonwealth Director of Public Prosecutions, that Mr Schoenmakers in fact departed from Australia for Thailand on 30 July 1991. He has not presented himself for the hearing of his appeal and his whereabouts remain unknown.
In these circumstances the Director of Public Prosecutions has sought that the recognisance in the sum of $100,000 entered into by Mr and Mrs Ehlers be estreated. That recognisance was in the following form:-

"Extradition Act 1988 RECOGNISANCE OF APPLICANTS' SURETY Be it remembered that on this 21st day of June 1991, VICTORIA ELISABETH EHLERS, HOME DUTIES, and IAN DESMOND EHLERS, CLERK of 27 O'CONNELL WAY, HIGH WYCOMBE, personally came before me the undersigned being one of Her Majesty's Justices of the Peace sitting in the State of Western Australia and acknowledged themselves to owe to the Commonwealth of Australia the sum following, that is to say, the sum of $100,000, to be made and levied on their goods and chattels, lands and tenements, respectively, to the use of the Commonwealth of Australia, if NEVIL MARTIN SCHOENMAKERS now in lawful custody in Her Majesty's Prison at Canning Vale fail in the conditions heron endorsed. ...

CONDITIONS

The condition of the within written Recognisance is such that whereas the said NEVIL MARTIN SCHOENMAKERS having been found to be eligible for surrender to the United States of America and now in such lawful custody as before mentioned has duly appealed to the Full Court of the Federal Court of Australia against the decision that he is eligible for surrender to the United States of America having applied to the said Court for bail, pending the determination of his said appeal, has been granted bail on his entering into recognisance in the sum of $100,000 with a surety or sureties in the sum of $100,000 if the said NEVIL MARTIN SCHOENMAKERS shall personally appear and surrender himself at and before the said Court at each and every hearing of his said appeal to such Court and at the final determination thereof, and shall abide by the Judgement of the said Court, and shall not depart or be absent from the said Court at any such hearing without the leave of the Court and in the meantime shall not depart out of the Metropolitan area of Perth in the State of Western Australia and otherwise comply with the conditions of bail ordered by the Federal Court of Australia on the 21st day of June 1991, then this recognisance is to be void or else is to stand in full force and effect."

It appears that this recognisance was in a form approved by the respondent Director of Public Prosecutions as required by the order of French J. It further appears that there is no prescribed form of recognisance for use in the granting of bail under the Extradition Act 1988. The form that was in fact used approximates closely to forms in current use in the granting of bail in Western Australia.
Mr Schoenmakers sought and was granted bail under s 21(6) of the Extradition Act 1988. So far as relevant, the section provides as follows:-

"(6) Where the person ... :

...

(b) appeals under subsection (3) against an order made on that review (this refers to an appeal to the Full Federal Court from a decision of a single Judge of the Federal Court or a Supreme Court)

...

the following provisions have effect:

...

(f) if:

(i) because of the order referred to in paragraph ... (b) ... the person has not been released;

the court to which the appeal is made may: ...

(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 appeal has been heard."

This is the only provision in the Extradition Act 1988 relating to the granting of bail to a person held in custody pursuant to the provisions of the Act. It has not been submitted that any other legislation is relevant to the granting of bail and related questions where an arrest has occurred under the Act. In particular, it was accepted that the provisions of the Bail Act 1982 (WA), which appear to provide a code for bail in that State, do not apply in respect of persons in custody under the Extradition Act 1988. I am satisfied this is correct (see the somewhat analogous situation considered in R v Rademeyer (1985) 59 ALR 141).
There is, therefore, no provision in the Extradition Act 1988 relating to the forfeiture or estreating of recognisances granted as a condition of bail. It is not disputed, however, that the Court has the power to deal with such matters either by way of implication from the terms of the Extradition Act 1988 itself or under s 23 of the Federal Court of Australia Act 1976, to which section I shall make reference later.
A preliminary submission was made on behalf of Mr and Mrs Ehlers that the recognisance into which they entered was outside the terms of French J's order, or was otherwise not as contemplated by that order and was for this reason of no force and effect. I am satisfied that there is no substance in this submission. It appears that the order was made pursuant to minutes provided to his Honour after his Honour had given judgment in the matter. Although the expression of the order, in these circumstances, is somewhat elliptical, it provides, in my view, quite clearly for Mr and Mrs Ehlers' entering into a recognisance as sureties before a Justice of the Peace in the sum of $100,000. The order provides that the form of Mr Schoenmakers' recognisance be approved by the respondent (ie the Director of Public Prosecutions). It sufficiently appears that the wording of the sureties' undertaking should be in a similarly approved form. I am satisfied that what was done in this regard was properly done pursuant to his Honour's order.
It is also submitted that the sureties' recognisance is not capable of being enforced against them because it does not in terms provide for a time and date or a sitting of the Court at which Mr Schoenmakers was to attend in answer to his bail. It is true that the recognisance fixes no such specified time and date. It refers, however, to the requirement that Mr Schoenmakers "shall personally appear and surrender himself at and before the said Court at each and every hearing of his said appeal...". I am quite satisfied that the validity of the recognisance does not depend upon its specifying precise times and dates. It is sufficient if its wording enables the time, date and place for the person bailed to appear and answer his bail to be ascertained as a matter of ordinary common sense and reasonable practicality. There would have been no practical difficulty on the part of sureties in ascertaining the time, date and place of the hearing of Mr Schoenmakers' appeal. Indeed, their own evidence indicates, that they were making obvious inquiries as to when the appeal was to be heard and when Mr Schoenmakers was to answer his bail. I respectfully agree with what Murray J said in a somewhat similar situation in Norwood v Robbins (1991) WAR 384 at 388-9.
Mr and Mrs Ehlers gave evidence by affidavit of their efforts to ensure that Mr Schoenmakers appeared at the hearing of his appeal in this Court. They also gave evidence as to the financial hardship they would encounter if they were obliged to pay the amount of $100,000 required by the recognisance. The primary submission of the Director of Public Prosecutions was that the material set forth in these affidavits was irrelevant, there being no discretion in the Court to decline to estreat the recognisance or to remit any part of it. His secondary submission was that if the Court had any discretion, then, nothing was shown in the affidavits which would lead to it being exercised in favour of the sureties. On behalf of Mr and Mrs Ehlers, it was submitted that the Court had a discretion and that it should be exercised in their favour either by declining, in all the circumstances, to order the estreating of the recognisance or by remitting it wholly or in part. I should add that it was accepted by counsel for the Director of Public Prosecutions that, as enforcement of the recognisance was being sought through the procedures of this Court, it would be open to Mr and Mrs Ehlers, in the event of the estreatment being ordered, to make application for a stay of the Court's enforcement procedures or for leave to pay the forfeited sum by instalments or the like. It was submitted, however, that if this type of relief were sought it should be made in a subsequent application after the recognisance had been estreated, at which time questions of financial hardship and the ability of the sureties to pay could be fully investigated. In light of these submissions, it is necessary to consider relevant matters of law.
It seems quite clear that, at common law, recognisances, including recognisances relating to bail, were automatically forfeited upon breach of any of their terms and conditions with the result that the amount of the recognisance became due and payable to the Crown. The court dealing with the matter had no discretion other than to declare the forfeiture upon proof of breach and order that the recognisance be estreated. The early procedure is referred to in Blackstone's Commentaries, 17th Ed, 1830, vol 4 p 252, as follows: "...if the condition of such recognizance be broken ... the recognizance becomes forfeited or absolute; and being estreated or extracted (taken out from among the other records) and sent up to the exchequer, the party and his sureties, having now become the king's absolute debtors, are sued for the several sums in which they are respectively bound".
In Jowitt's Dictionary of English Law, 1977, at p 727, "estreat" is defined as "a copy of a record of a court" and it is said that "the word is now, however, used only in connection with fines, forfeitures and recognisances. If the condition of a recognisance is broken, the recognisance is forfeited, and, on its being estreated, the cognisors become debtors to the Crown for the sums in which they are bound (Fines Act, 1833). Formerly a recognisance was estreated (that is, extracted) by a copy being made from the original and sent to the proper authority to be enforced; thus estreated recognisances in the superior courts and courts of assize were sent into the Exchequer, while those before the justices of the peace were sent to the sheriff, with writs of execution to enable him to levy the amounts...".
It is clear that from a very early time the matter of the forfeiture and estreating of recognisances received the attention of statute law. In R v Southampton Justice, Ex p Green (1975) 1 QB 11 at 19 Lord Denning MR spoke of this as follows:

"At common law if a person gave a recognisance for the performance of a condition - and that condition was not fulfilled - he automatically forfeited the sum secured by his bond. By section 21 of the Indictable Offences Act 1848, there was set out the form of recognizance to be taken by justices on granting bail. If the accused did not appear, the surety automatically forfeited the sum: and it was levied by the same process as a fine. But that has been altered now. Forfeiture is no longer automatic. The justices are given a discretion. This is done by section 96(1) of the Magistrates' Courts Act 1952, which says: `Where a recognizance ... is conditioned for the appearance of a person before a magistrates' court ... and the recognizance appears to the court to be forfeited, the court may, subject to the next following subsection, declare the recognizance to be forfeited and adjudge the persons bound thereby, whether as principal or sureties, or any of them, to pay the sum in which they are respectively bound.' It seems to me that the word `may' confers a discretion on the justices. Then s 96(3) says:

`The Court which declares the recognizance to be forfeited may, instead of adjudging any person to pay the whole sum in which he is bound, adjudge him to pay part only of the sum or remit the sum.' That puts the matter beyond doubt. The court is enabled to do what the justice of the case requires."

Lord Denning goes on to consider matters to be taken into account in the exercise of discretion in a passage to which I shall return later.
An example of a court holding that the use of the word "may" in a statutory provision relating to estreatment of recognisances did not produce the result that the court had a discretion is to be found in R v Mesiti (1984) WAR 21. Kennedy J considered the relevant Western Australian legislation and certain decided cases in the following informative passage:

"Counsel for the respondent has submitted that s 746A of the Code confers upon me a discretion as to whether or not the recognizance should be estreated, depending upon whether the respondent had done all within her power to abide by the terms of the recognizance and to ensure that her son appeared in court when he was required to do so. Section 746A is in the following terms:- `When a person bound by a recognizance (by whomsoever ordered or permitted to be entered into and before whomsoever taken) to take his trial or attend any other proceedings before the Supreme Court of District Court in any criminal cause or matter or bound by any other recognizance, before whomsoever taken (entered into pursuant to any judgment, order or sentence of any such court, given, made or pronounced in a criminal cause or matter), to keep the peace or be of good behaviour or receive judgment or do or refrain from doing anything or observe or comply with any other condition whatsoever, fails in any condition of the recognizance, such court or any judge or chairman thereof, on the production of the recognizance, and on the application of counsel for the Crown may order that the recognizance be estreated forthwith, and that such person and any surety bound by the recognizance shall forthwith pay to the Attorney General to the use of the Crown the sum in which he is bound. The provisions of this section shall be without prejudice to any other method of enforcing recognizances.' Counsel for the respondent argues that it is the use of the word `may' in the section which confers discretion upon me. No authority has been cited to me in which such a discretion has been exercised in this State, although, in an unreported decision of R v Duca, No 197 of 1981, the facts were inquired into, which could only have been on the basis that a discretion existed. In the result, no such discretion was exercised.

A provision similar to s 746A of the Code was to be found in s 5(1) of the Crown Suits Act, 1908, of New Zealand which was in these terms:-

`Where any person has entered into a recognizance to His Majesty, and such recognizance is forfeited, a judge of the court before which or the justice before whom the same was forfeited may cause such recognizance to be estreated and every such estreat shall be effected as hereinafter provided.' The Court of Appeal in New Zealand in Re King and Scott

(1931) NZLR 162 held that, on proof of the particular case, the Court was bound to estreat. Myers C.J. who delivered the judgment of the Court, said, at 165-6:- `The real question for determination, then, is what is meant by the word `may'. It is stated in Maxwell on Interpretation of Statutes and also in Craies on Statute Law, that whenever a statute confers an authority to do a judicial act in a certain case it is imperative on those so authorised to exercise the authority when the case arises and its exercise is duly applied for by a person interested and having a right to make the application, and the exercise depends on the discretion of the court or judge but upon proof of the particular case out of which the power arises. See also Maxwell at 208. Both test-writers cite as the principal authority for this proposition, MacDougall v Paterson, 11 CB 755. And in Bell v Crane, LR 8 QB 481, Blackburn J said:- `There is no doubt that "may", in some instances, especially where the enactment relates to the exercise of judicial functions, has been construed to give power to do the act, leaving no discretion as to the exercise of the power when the facts are such as to call for it.'

`In our opinion, that principle must be held to apply to the present case. Part I of the Crown Suits Act deals with the recovery of debts by the Crown. Immediately the principal party to the recognizance fails to appear in accordance with the recognizance a forfeiture arises, and there is at once a debt due to the Crown. When, therefore, s 5 says that on that occurrence happening the judge may cause the recognizance to be estreated, and that the estreat shall be effected in manner thereinafter by the section provided, there is conferred upon the judge an authority to do a judicial act in the particular circumstances, and, that being so, he has no discretion in the matter.'

To the authorities cites by Myers C.J. for this proposition should be added Financial Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134. The court went on to observe that, in s 7 of the Act, a remedy was provided for the person affected, in that he might issue a rule nisi or summons calling upon a law officer to show cause and he may, if he can, show the court by affidavit that, according to equity and good conscience and the real merits and justice of the case, he ought not to be required to satisfy the judgment that is entered consequent upon the estreat.

It was pointed out in Re Fox and Fox (1949) NZLR 722 that s 7 of the Crown Suits Act was intended to give to the court the powers previously exercised by the Court of the Exchequer, including the power to mitigate debts arising upon recognizances and to enter satisfaction of part of the judgment for the amount of the recognizance: see also R v McGrath (1928) SASR 496 and R v Michael (1949) NZLR 1020. It is not, however, possible to argue, in the light of the statutory provision to be found in s 746A of the Code that I have the old powers of the Court of Exchequer vested in me: cf in Re Perrott (1864) 3 SCR (NSW) 372. Similar discretionary provisions to those in New Zealand are to be found in the legislation in other States of Australia. No such provision exists in connection with the procedure laid down in s 746A of the Code, although it is proper to point out that, had the proceedings been taken under the Recognizances (Forfeiture) Ordinance, 1861, s 3 of that Act would have conferred a discretion in the circumstances therein set out.

Although a view contrary to that expressed by the Court of Appeal in New Zealand is to be found in R v Southampton Justices (1975) 2 All ER 1073 at 1077, where Lord Denning MR in relation to s 96(1) of the Magistrates Courts Act 1952

(UK) said that it seemed to him that the word `may' conferred a discretion on the Justices, sub-s (3) of s 96 made it abundantly clear that a discretion did, in fact, exist. That case, therefore, appears to me to provide little assistance in the resolution of the present problem. (See also R v Baker (1971) VR 717 and R v Ralston (1953) 47 QJPR 123.) Nor do Australian cases, such as R v Jordan

(1966) Tas SR 178 assist, being based upon legislation which clearly confers a discretion on the court."

It may be noted that his Honour, having held that he was required by the section to make the order sought, went on to say that "it is clearly open to the respondent to apply to Attorney General for relief in whole or in part from the forfeiture".
It can be observed from these passages that even where the common law position in relation to the estreating of recognisances has been altered by statute, there is significant difference of judicial opinion as to whether the statutory provisions confer any discretion upon the Court to do other than order estreat in full.
As already indicated the submission of the Director of Public Prosecutions in the present case is that my sole function is to determine whether, on the evidence before me, there has been a breach of a condition of the recognisance. If such a breach be established, then I must order the estreatment without regard to any discretionary considerations. This is so, it was submitted, because the Court can have regard only to the common law, there being no applicable statutory provisions of the type referred to in the passages set out above. I am satisfied that if, in fact, I can have regard only to the common law, then I clearly have no option but to order the estreating of the recognisance.
But, am I restricted to the common law? Although, quite clearly, there are no statutory provisions of the type considered above which apply directly to the present recognisance I must, nevertheless, have regard to the provisions of s 23 of the Federal Court of Australia Act 1976 to which reference has already been made. The section provides as follows:-

"23. The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate."

The question of the estreating of this recognisance is clearly a matter in which I have jurisdiction. I can therefore make orders of such kinds as I think appropriate. The power is an extremely wide one. Is it wide enough to encompass the making of orders in the present case which would extend beyond those allowable at common law, in the absence of any other statutory provisions enabling the common law situation to be altered? After some hesitation, I have come firmly to the conclusion that the section does enable me to proceed in this way if, on the facts proved before me, I think it proper so to do.
Although no provision is made in the Extradition Act 1988, nor in the Federal Court of Australia Act 1976 for a detailed statutory regime to be applied in the consideration of the forfeiture and estreatment of bail recognisances I can, nevertheless, in my view, in the exercise of discretion under s 23, have regard to such statutory regimes, including eg. s 49 of the Bail Act 1982 (WA). I can also be guided by relevant passages in decided cases bearing upon the exercise of discretion in relation to the estreating of recognisances.
In relation to decided cases, I shall first refer to a passage in the judgment of Lord Denning in Ex parte Green following the passage which I have previously cited. This passage refers to matters which Lord Denning regarded as appropriate to be taken into consideration in the exercise of the discretion which he had held was given to the court. It appears at p 19, as follows:-

"By what principles are the justices to be guided? They ought, I think, to consider to what extent the surety was at fault. If he or she connived at the disappearance of the accused man, or aided it or abetted it, it would be proper to forfeit the whole of the sum. If he or she was wanting in due diligence to secure his appearance, it might be proper to forfeit the whole or a substantial part of it, depending on the degree of fault. If he or she was guilty of no want of diligence and used every effort to secure the appearance of the accused man, it might be proper to remit it entirely."

This passage, which was relied upon by counsel for Mr and Mrs Ehlers, has been the subject of considerable comment and interpretation in later cases. These cases have been conveniently referred to in the judgment of McCullough J in R v Uxbridge Justices, Ex parte Heward-Mills (1983) 1 All ER 530 at pp 531-535.
The first case referred to is R v Southampton Justices, Ex p Corker (1976) 120 SJ 214 in which the following passage appeared in the judgment of Lord Widgery C.J., Kilner Brown and Watkins JJ.

"The other two points, I think, are points on which justices must have further guidance than that which the decision in ex p Green presently affords to them. It is said, and no doubt absolutely correctly, that the degree of culpability of the surety is a factor which must be taken into account when deciding whether to forfeit the whole or part of his recognisance. One first of all has to ask oneself on whom is the onus in these matters, and it seems to me that the onus is clearly on the surety. The surety has undertaken a recognisance for a certain sum of money, and prima facie he can and intends to pay it. If he wants to say he cannot afford it, or that it is not fair he should pay it, he ought to make the running. It is he who should set the scene. When it comes to culpability one has to remember, I think, that the great majority of sureties have very little opportunity to control the movements of the accused person. If surety and accused live in the same family that is one thing, but if they live apart it may be that the surety will have very little opportunity of seeing whether or not the accused attends court. It cannot be right in my judgment that a surety who has entered into an obligation for several hundreds of pounds is able to excuse himself when the time comes by simply saying, `Well, of course I had very little chance to observe him and therefore it really was not my fault.' These are all things that ought to be taken into account when the decision to give the recognisance is taken, and the same with means. It would defeat the whole system of bail, I think, if it became generally known that the amount payable was strictly limited according to the surety's means and that anybody who had no means would not have to pay. Imagine the relish and speed with which persons would accept the obligation of surety if they were penniless and knew that that was a total answer to any kind of obligation on the recognisance. The real pull of bail, the real effective force that it exerts, is that it may cause the offender to attend his trial rather than subject his nearest and dearest who has gone surety for him to undue pain and discomfort. But be that as it may, it cannot be the law, I venture to think, that a surety can escape entirely by saying that he was not culpable and was penniless. These are matters which he should have some regard to before he entered into his recognisance, and it must in turn be the subject of regard when any question of forfeiture arises."

Reference was also made (inter alia) to R v Waltham Forest Justices, Ex p Parfrey (1980) Crim LR 571 in which Donaldson L.J. said:-

"The obligation entered into by someone who enters into a recognisance as a surety is a very serious obligation indeed. I hope that nothing I say today will suggest the contrary. There is an obligation on a surety to be fully satisfied that he or she can meet the liability which will arise if the accused person does not surrender to his bail. This failure to surrender is not a theoretical possibility, though a surety may think it is. The unhappy event of arrested persons not surrendering happens frequently. There is a real risk. Indeed it is difficult to conceive of a set of circumstances in which a surety can be absolutely sure that the accused will surrender to his bail. So let no one think that this is an obligation which can be entered into lightly. Furthermore, the burden of satisfying a court that the full sum should not be forfeit is a very heavy one, so again let no one think that they can simply appear before the magistrates and tell some hard luck story, whereupon the magistrates will say, `Well, be more careful in future.' We are not dealing with that character of obligation at all."

His Lordship referred to the passage cited from the judgment of Lord Denning in Ex parte Green in the following passage:

"Lest this passage be misunderstood by justices, as I think it might well be misunderstood, let me stress the fact that Lord Denning MR said that, if there was no want of due diligence and every effort had been made to secure the appearance of the accused man, it might (not that it would necessarily, but it might) be proper to remit it entirely. For my part, I think that Lord Denning MR was contemplating a wholly extreme and exceptional case when he said that. I do not, for my part, believe that he ever intended to suggest that the mere fact that there was no want of due diligence involved the proposition that the amount of the obligation should be remitted entirely."

Other passages to like effect from other judgments are cited by McCullough J, who then said (at p 535):-

"I would draw together the more important principles to be derived from the authorities, as follows. (1) When a defendant for whose attendance a person has stood surety fails to appear, the full recognisance should be forfeited, unless it appears fair and just that a lesser sum should be forfeited or none at all. (2) The burden of satisfying the court that the full sum should not be forfeited rests on the surety and is a heavy one. It is for him to lay before the court the evidence of want of culpability and of means on which he relies. (3) Where a surety is unrepresented the court should assist him by explaining these principles in ordinary language, and giving him the opportunity to call evidence and advance argument in relation to them."

I note that this passage has been cited with approval by Matheson J in Re McKinnon (1986) 40 SASR 326 at 328 and Perry J in R v Rigney (No.2) (1988) 49 SASR 389 at 400.
The relevant provision of s 49 of the Bail Act 1982 (WA) are as follows:
"49(1) Where a defendant has failed to comply with any requirement

of his bail undertaking ... the following provisions of this section apply for the purpose of enforcing payment of the Crown of any sum thereupon payable by a surety in terms of his surety undertaking -

...

(b) that judicial officer shall summon the surety to appear before the court in which the judicial officer exercises jurisdiction to show cause why an order of forfeiture should not be made under this section;

(c) on the hearing of the application and upon the proof of the surety's liability in terms of his undertaking, the judicial officer shall order forfeiture of the full amount specified in the undertaking unless the surety attends at the hearing and shows to the satisfaction of the judicial officer that there was reasonable cause for the failure of the defendant to comply with the requirement to which the complaint relates;

(d) notwithstanding paragraph (c), the judicial officer, may decline to make an order under that paragraph or may order forfeiture in part only where the surety attends and shows to the satisfaction of the judicial officer -

(i) that, by reason of a change of circumstances since the undertaking was entered into, an order for forfeiture, or for forfeiture in full (as the case may be), would cause excessive hardship to the surety or his dependants; and

(ii) that such hardship would not be relieved by the exercise of one or more of the powers conferred by section 59. ..."

Although this statutory provision and other statutory provisions such as those considered above, together with the interpretations and expositions of those provisions, are not, of course, binding upon this Court in dealing with questions relating to bail under the Extradition Act 1988 and the making of appropriate orders under s 23 of the Federal Court of Australia Act 1976 they, nevertheless, are capable of affording assistance when considering the exercise of discretion under those sections.
It must be steadily borne in mind that the estreating of a recognisance is not the equivalent of the imposition of a fine upon a surety. Although questions of culpability arise in the exercise of the Court's discretion, it cannot be accepted that a proper exercise of that discretion necessarily requires that there be a reduction of the amount payable as a debt to the Crown on the basis that there exists some notional sliding scale from a requirement to pay the amount in full where there has been complicity or connivance on the part of the surety to complete or almost complete remission of the debt in circumstances where the surety has taken all reasonably practicable steps to prevent absconding by the person bailed. Clearly to adopt such an approach would be to run counter to the underlying rationale of requiring sureties as a condition of bail. A person held in custody pending trial is so held by the Crown to ensure his appearance at his trial; if he is granted bail with sureties, his custody is handed over to the sureties who thereby undertake the obligation of ensuring his attendance at his trial. Failure to restore him to the custody of the Crown at his trial involves the sureties' incurring a debt to the Crown in the amount of the recognisance imposed by the court granting bail. The obligation to ensure the appearance of the person bailed is thus a serious and onerous one. This obligation is regularly explained to prospective sureties. It was quite clearly so explained in the present case.
Moreover, in the present case, the granting of bail pending appeal occurred only because his Honour held, as required by the section, that there were special circumstances justifying that course. As his Honour noted in his careful judgment the requirement of "special circumstances" had been introduced by the Extradition Amendment Act 1990. It is clear, as his Honour held, that the explanatory memorandum which accompanied the Extradition Bill 1987 provides an explanation of the "special circumstance" requirement where it appears in the legislation, in the following terms:

"Sub-clause (6) provides that a person shall not be granted bail unless there are special circumstances. Such a provision is considered necessary because experience has shown that there is a very high risk of persons sought for extraditable offences absconding. In many cases the person is in Australia to avoid arrest in the country where he is alleged to have committed the offence, i.e. the person left the jurisdiction to avoid justice."

It is proper to note that his Honour found that Mr Schoenmakers had not come to Australia to avoid arrest in the United States of America. However, in my view, the introduction of the requirement that bail be granted only in special circumstances to a person who has been found eligible for extradition and who has appealed against that finding, indicates that in extradition matters all aspects of the bail procedure should be approached with particular circumspection. It must be remembered that the interests of another country, with which Australia has treaty obligations, are involved in the retaining of control over the person bailed.

His Honour, having found that "special circumstances" did exist, imposed conditions on the grant of bail clearly designed to ensure, so far as reasonably possible, that Mr Schoenmakers, who was, at that stage, duly found eligible for extradition by the judicial processes of this country, would attend at the hearing of the appeal and not abscond. One of the conditions imposed by his Honour, which was obviously a most important condition was that, in effect, Mr and Mrs Ehlers would take custody of Mr Schoenmakers in lieu of the Crown and undertake the responsibility of having him answer his bail. In my view, the obligation that they undertook was all the more significant and onerous because it was undertaken in relation to bail granted in extradition proceedings.
I am satisfied that a very high onus rests on Mr and Mrs Ehlers to establish circumstances in which the Court would interfere in their favour with the obligation imposed by their recognisance. I do not propose to set out in these reasons the full detail of the matters raised in their affidavits. It is clear that Mr Ehlers, who was involved only because Mr Schoenmakers was his wife's brother, held the view that Schoenmakers should not spend any more time in gaol than the approximately eleven month period which he had spent from the date of his arrest to the date of application for bail. He was clearly sympathetic to Mr Schoenmakers and accepted what he was told by him and presumably by his wife that Mr Schoenmakers wished "to take his legal matter through the courts and that he would remain in Australia until his matter was resolved". It is clear that he trusted Mr Schoenmakers in this regard and did not consider that he would seek to abscond whilst on bail. He was no doubt fortified in this belief by the fact that Mr Schoenmakers had contested his extradition at all previous levels and had instructed lawyers in relation to his appeal to this Court. It is clear that he personally exercised no significant control over Mr Schoenmakers. He had contact with him which he said was "regular contact" but left the matter of maintaining any significant contact to his wife.
In the case of Mrs Ehlers, it is apparent that she maintained more contact with Mr Schoenmakers during the period he was on bail to the time that he absconded. She was at all times aware that he had dual nationality as a citizen of the Netherlands and of Australia. She also knew that between 1988 and 1991 her brother had travelled to Australia, to her recollection, on his Dutch passport, about six times. She also knew that the reason for his arrest was the desire of the Government of the United States of America to have him extradited to that country from Australia.
I am satisfied that, as she deposes in her affidavit, she trusted her brother and was satisfied that he wished to "fight his case all the way to the High Court". She undertook the obligations of surety at the request of her brother's de facto wife who lived at other premises from her. Indeed, her brother had come to Australia from the Netherlands in order to be present during the period when his de facto wife gave birth to their son.
It was a term of the grant of bail that her brother should reside not with her but with his de facto wife. She knew, accordingly, that in the ordinary course of things he would not be daily in her presence as would be the case if he were to reside at her home during the period of bail.
It is apparent that from the date of granting of bail on 21 June 1991 up until the time when her brother apparently absconded on Wednesday 31 July 1991, Mrs Ehlers maintained a degree of contact with him. She did not see him again after 21 June 1991 until 23 June 1991 when he was present at their parents place at a family birthday party. The following week she spoke to him on a couple of occasions by telephone and he visited at her home on one evening of that week. Thereafter she saw him on 7 July at her home and "throughout July" kept in regular contact with him "by telephone and by visits", the frequency of the visits being about once per week. She says there were occasions also when her brother came to visit her.
During the week ending 27 July 1991 she says she visited her brother, asked him when he was due to appear in Court, and was informed that he thought he had to appear on 30 July 1991 but that the date was to be confirmed. She asked him to let her know the date when it was confirmed.
She saw him on Friday 26 July at a family dinner. She saw him again on 29 July when he visited her in the evening. On that occasion he told her that he was required to go to court on Friday 2 August. He said he would let her know the exact time.
She saw him on 30 July when he visited her at her home on which occasion he told her of the time of his court appearance on 2 August. She did not see him again. On Wednesday 31 July her brother's de facto wife told her that she did not know where he was. He had not returned home on the Tuesday night. Mrs Ehlers then informed the appropriate police station and was told that her brother had not honoured his reporting conditions that day. At the suggestion of the police officers at the station she made contact with the Australian Federal Police about midday. Those police were already aware of the fact that her brother had not reported to the police station as required. She has had no contact with her brother and, at the time of hearing, remained unaware of his whereabouts.
She was aware that her brother had surrendered his Dutch passport to the Australian Federal Police. It appears from other evidence that after the grant of bail her brother received a visit at the premises he occupied with his de facto wife from a person of Dutch nationality with whom he had a conversation in Dutch. It does not appear that Mrs Ehlers was aware of this fact. It is clear, however, that she did not make or maintain any inquiries as to whether her brother was on contact with persons from the Netherlands. I am confident that she would have known that if her brother was able to leave Australia and return to Holland he would be safe, in that country, from extradition proceedings designed to have him brought to the United States of America to answer charges.
The fact that he was not residing with her made her onerous obligation difficult to comply with but required that, as a result of this very fact, she should make all the more strenuous efforts to maintain contact with him and monitor his activities. There is no reason to suppose that if she had not made a simple inquiry as to what people he was seeing at his home that she would not have received information, at least from her brother's de facto wife, that he was having contact with a person of Dutch nationality apparently out from the Netherlands. Assuming that she was conscientiously considering her position as surety, this information would have certainly put her on inquiry as to the purpose of this contact.
The simple truth of the matter, as it appears from her affidavit, is that she maintained what was really no more than family contact with her brother after his release from bail and simply reposed trust in him and accepted his assertions that he wished to prosecute his appeal to this Court and, if necessary, to the High Court. Although there is no evidence which suggests in any way that she connived at his absconding from bail, it cannot be said, in my view, that she took any really significant steps consistent with the obligations of her recognisance to ensure that he would answer his bail and appear in court for his appeal. I would not, on what has been described as the broad issue of "culpability", find that she has established any ground for the amelioration of her obligations to the Crown in respect of her recognisance. The same applies to Mr Ehlers.
The other argument advanced on behalf of Mr and Mrs Ehlers is one based on hardship. It is apparent, from the evidence placed before me, that the discharge of the indebtedness imposed by the recognisance in the sum of $100,000 will require that they dispose of their home which is valued at about $120,000 with a mortgage of $13,000. The balance of the $100,000 would require the sale of their other assets. It is, of course, impossible not to feel considerable sympathy for them in this situation. However, this was the situation obtaining at the time when they entered into their solemn obligation as sureties. They clearly knew that they were putting these assets at risk when they undertook that obligation. They would also have known that their undertaking of this obligation was a necessary prerequisite to Mr Schoenmakers being released from the custody of the Crown into their custody. There has been no change in their financial situation such as is contemplated in the Western Australian legislation. In these circumstances I cannot let the sympathy that I hold for them in their predicament dissuade me from the course which, in my view, I must obviously take. I accordingly make the order sought in paragraph 7 of the Notice of Motion, that:-

"The recognisance in the amount of $100,000.00, be entered into by Victoria Elisabeth Ehlers and Ian Desmond Ehlers pursuant to the order of his Honour Mr Justice French made on 21 June 1991 in these proceedings, be estreated."

[1991] FCA 603

26 SEPTEMBER 1991