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
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…
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- Case
- [1991] FCA 603
- Decision Date
CaseChat Overview and Summary
The Federal Court examined the principles that govern the discretion to estreat a recognisance and concluded that such a discretion does indeed exist. The court found that the Federal Court has the inherent jurisdiction to forfeit and estreat recognisances, as it is necessary to ensure the enforcement of its orders and maintain the integrity of the judicial process. The court further held that while the recognisance does not necessarily need to specify the exact date and time of the next sitting, it must be clear and unambiguous in its terms to avoid any potential confusion or disputes.
In light of the findings, the Federal Court ordered that 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, be estreated. The court's decision underscores the importance of clear and enforceable conditions in recognisances granted as part of bail proceedings, ensuring that the judicial process remains effective and that the rights of all parties are protected.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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