E v Australian Red Cross Society - [1991] FCA 603

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read E v Australian Red Cross Society and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1991] FCA 603
Decision Date: 26 SEPTEMBER 1991

CaseChat Overview and Summary

The case of E v Australian Red Cross Society involved Victoria Elisabeth Ehlers and Ian Desmond Ehlers, who were the respondents, and the Australian Red Cross Society, which was the applicant. The primary dispute centred on the forfeiture and estreat of a recognisance granted as a condition of bail under section 21 of the Extradition Act 1988 (Cth). The matter was heard in the Federal Court of Australia. The legal issues at hand were whether the Federal Court has the jurisdiction to forfeit and estreat recognisances granted under the Extradition Act, and whether there exists a discretion to do so. Additionally, the court needed to determine if the recognisance must specify the date and time of the next sitting of the Court.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.