Forrest, M.J. v Kelly, P.M.St L

[1991] FCA 870

Re: MARTIN JOHN FORREST
And: PETER MAURICE ST LEGER KELLY and THE HONOURABLE MICHAEL DUFFY,
ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
No. S G99 of 1991
FED No. 870
Extradition

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Lockhart(1), Ryan(2) and Heerey(3) JJ.

CATCHWORDS

Extradition - Bail application - whether special circumstances existed to release prisoner on bail pending determination of appeal to Full Court against order committing him to jail pending surrender to United States of America - explanatory memorandum to bill introducing Act No. 76 of 1990 considered.

Extradition Act 1988: s. 12(1), s. 19, s. 21, s. 22

Extradition Amendment Act 1990: s. 6

HEARING

MELBOURNE

#DATE 20:12:1991

Counsel for the Appellant: M. Steele with A. Crocker

Solicitors for the Appellant: Ward and Partners

Counsel for the Respondents: S. Vorreiter

Solicitors for the Respondents: Director of Public Prosecutions

ORDER

The motion by the appellant of 12 December 1991 that he be released on bail pending the determination of his appeal to the Court be dismissed.

The appellant pay the costs of the respondents of the motion.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is a motion by Martin John Forrest, the appellant, for an order that he be released on bail pending the determination by a Full Court of this Court of an appeal brought by him from the judgment of a Judge of this Court delivered on 2 December 1991. The relevant facts may be briefly stated.

1. The appellant is an Australian national born on 30 November 1951 at Maitland in South Australia. He has lived in Australia all his life except for a few years in the mid 1980s when he lived in the United States of America. He has two children by a previous marriage, both of whom reside with his former wife, and the appellant sees the children each week. Since September 1989, the appellant has lived with a woman and her 5 year old daughter from a previous marriage of hers. Until recently, the appellant lived on a sheep farm of 90 acres in South Australia.

2. On 30 March 1987 a grand jury in the United States of America returned an indictment against the appellant relating to an offence alleged to have been committed by the appellant in the State of Hawaii in 1986. On the same day, a Magistrate of the United States issued a warrant for the arrest of the appellant. An additional warrant was issued by a Judge of a court of the United States of America on 21 September 1990. On 13 February 1991 the United States of America made a request to the Commonwealth of Australia that the appellant be extradited to the United States.

3. On 10 May 1991 the appellant was arrested by Australian Federal Police officers under a provisional warrant issued by a magistrate in South Australia pursuant to s. 12(1) of the Extradition Act 1988 ("the Act"). On 13 May 1991 a magistrate of South Australia granted the appellant bail on certain conditions which he observed. The appellant resisted the application for extradition, which was heard before the first respondent in July and August this year. On 16 August 1991 the first respondent signed a warrant pursuant to s. 19 of the Act ordering the appellant's committal to prison to await his surrender to the United States. The appellant then commenced proceedings in this Court for review of the first respondent's decision. That proceeding was heard by a Judge of the Court in Adelaide and on 2 December his Honour confirmed the first respondent's order and ordered that the appellant be committed to prison to await surrender to the United States.

4. The appellant had been on bail between 13 May and 2 December and since 2 December he has remained in custody. The appellant has since filed a notice of appeal from his Honour's judgment of 2 December to a Full Court of this Court, seeking orders that the appeal be allowed and that the warrant of committal to prison, signed by the first respondent on 16 August 1991, be quashed. On 6 December 1991 an application was made to the learned primary Judge for an order staying the operation of his decision of 2 December and an order releasing the appellant on bail pending the determination by the Full Court of this Court of his appeal. His Honour refused the application and gave leave to appeal from his refusal. The present motion before the Court is for the release of the appellant on bail pending the hearing of his appeal from the primary Judge's order of 2 December 1991. That appeal has been specially fixed for hearing in Sydney to commence on 28 January 1992.

5. This Court, sitting as a Full Court of the Federal Court has jurisdiction to grant the appellant's motion for bail pursuant to s. 21 of the Act. Following amendments made to the Act by the Extradition Amendment Act 1990 (Act No. 76 of 1990, Cth), the Court may order the release on bail of the appellant only if first satisfied that there are special circumstances which justify such a course.

6. The initial question before this Court is whether special circumstances exist. The appellant says that they do, and the second respondent says that they do not.

7. The appellant relies on a number of matters to establish the existence of special circumstances. First, he points to the fact that he was on bail between 13 May 1991 and 2 December 1991; second, that he complied with the conditions of the bail; third, that he has no criminal record; fourth, that he resides with his de facto wife and her 5 year old daughter; and fifth, that he has two children by his former marriage, whom he sees in the circumstances I have already indicated. He also points to the fact that he has conducted a business called Rural Computer Services and that he did have a place of residence. But those two matters must be considered in the light of the fact that the business has now been wound up. Also, the residence, it would appear, is now subject to a conditional contract of sale. The appellant also refers to the fact that there was considerable delay, over four years, between the commission of the alleged offence in the United States and the extradition request from the United States. He says that guarantors are available who can meet any monetary commitments that may be imposed as a term or condition of the grant of bail, even additional to those who have previously guaranteed the honouring of bail to some degree. The appellant asserts that his appeal is bona fide and that it could not be said that his prospects of success are such as to render the appeal unarguable. Indeed, he points to the fact that leave to appeal has been granted by the primary Judge. He also points to the fact that he is not in this country as a fugitive from justice since he lives in Australia and has done so for many years; the United States having been his place of temporary residence.

8. Those are the principal matters to which we were referred by counsel for the appellant. One or two others were referred to, but I have mentioned the main ones. The relevant principles governing the determination of the existence of special circumstances in this branch of the law are discussed in more than one reported case; but it is sufficient for present purposes to refer to the judgment of Mason C.J. in Zoeller v Federal Republic of Germany, (1989) 90 ALR 161. In that case Mr Zoeller applied to the High Court of Australia for bail pending the hearing by the High Court of his application for special leave to appeal from an order of the Full Court of this Court. The case had commenced with the magistrate ordering the committal to prison of the applicant to await subsequent determination of the Attorney-General of the Commonwealth under s. 22 of the Act. Section 21(6) of the Act provided at that time that where a person appeals to the High Court that Court may order the release on bail of the person. Mason C.J. dismissed the application for bail. He said that the words in s. 21(6) did not include an application for special leave to appeal to the High Court and that to justify an order for bail made in the Court's inherent jurisdiction something exceptional needed to be shown. His Honour said that the factors upon which the applicant relied, even when taken together, did not constitute special circumstances which would enliven the Court's jurisdiction to grant bail. He pointed to the fact that the magistrate's determination was adverse to the applicant and that that determination was upheld at first instance and then again on appeal unanimously in the Federal Court. His Honour said that the case for special leave did not inspire a confident impression that such leave would be granted.

9. Zoeller's case is of course distinguishable from the present case for a number of reasons, some of which have emerged from what I have already said. But in particular, at the time Mason C.J. heard the application in Zoeller, the requirement as to the existence of special circumstances as a condition precedent to the consideration of the question of bail, had not been introduced into the Act. Also it was in the context of an application for special leave and had reached the zenith of the appellate structure in this country. Nevertheless, the Chief Justice's observations are in the framework of the concept of "special circumstances" within the High Court's inherent jurisdiction to grant bail, and his Honour considered it with that concept in mind. It is the very same concept, it seems to me, that we have to consider in this case, albeit from a different statutory base from that which confronted Mason C.J. in Zoeller's case.

10. Assistance is also derived from other cases, including the judgment of French J. in Schoenmakers v Director of Public Prosecutions, unreported, 21 June 1991, especially at pages 9 and 1 0.

11. The history of the grant of bail in the present case before the Magistrate and the primary Judge is referred to by the primary Judge. It is indeed of relevance as part of the curial history of the case but, in the end, it is for this Court to determine for itself whether special circumstances exist to support the grant of bail pending the determination of the appeal.

12. In my opinion the matters to which the appellant directs our attention as establishing special circumstances, even if they were to be taken together, would not in this case constitute special circumstances within the meaning of that expression in s. 21(6). They would, however, be relevant in exercising the discretion whether to grant bail or not, once the threshold of establishing special circumstances had been crossed.

13. We were referred in argument to the explanatory memorandum which accompanied the Bill which later became Act No. 76 of 1990. It contains this explanation of the provision which introduced the requirement of special circumstances to s. 21(6)(f)(iv) of the Act:
    

"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."

1. I would not myself regard the second sentence that I have quoted as intending to be an exhaustive statement of the circumstances which may constitute special circumstances under s. 21(6)(f)(iv). Persons who are in this country as fugitives from justice from other countries which seek their extradition constitute one class of persons who may be considered to be very high risk persons, sought for extraditable offences. But I do not regard the statements that I have referred to in the memorandum as throwing any definitive light on the definition or ascertainment of special circumstances in the statutory provision before us.

2. There was argument as to the likelihood of success of the appellant on the appeal. I will say nothing about that except to say that his prospects of success will be determined by the Full Court when the appeal is heard. We have indeed, in any event, been hampered in considering this question because we do not have as yet the benefit of the reasons for judgment of the primary Judge in the substantive appeal, only certain extracts from them.

3. For those reasons I would refuse the motion for bail and order that the appellant pay the respondents' costs of the motion.

JUDGE2

It is not disputed that this Full Court has jurisdiction to entertain this application. The nature of the discretion to grant the application is indicated by s.21(6)(f) of the Extradition Act 1988 as amended. That paragraph provides that in the context of an appeal like the present:

"the court to which the application or appeal is made may:

(iii) order that the person be kept in such custody as the court

directs; or

(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."

1. It is accepted on both sides that a finding where there are special circumstances justifying the release on bail is a condition precedent to this Court's exercising its discretion to order release. The notion of special circumstances is readily comprehensible, although the nature and combination of facts pertaining to a given applicant and to the proceedings in which he is involved which may constitute such circumstances are capable of almost infinite variety.

2. I agree with the learned presiding judge that there is nothing in the circumstances pertaining to the present appellant which could justify his release on bail when reviewed individually or in combination with each other that makes them special. Accordingly, I too would refuse the application.

JUDGE3

I agree with the judgments which have been delivered.