Haddad, J.A.K v Larcombe, H

[1989] FCA 303

NOT FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY )	NO. N G 239 of 1989

)

GENERAL DIVISION )

BETWEEN: JAMAL ABDUL KADAR HADDAD

Appllcant

AND: HELEN LARCOMBE

First Respondent

FEDERAL REPUBLIC OF GERMANY

Second Respondent

COMMONWEALTH DIRECTOR OF

PUBLIC PROSECUTIONS

Thlrd Respondent

CORAM :	WILCOX J
PLACE:	SYDNEY
DATE: -	11 MAY 1989

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. Pursuant to s.21(6)(f) of the Extradition Act 1988 the applicant be released on ball pendlng the determination of his application for review or earller order, sublect to the following conditions:

(a) report each day, between the hours of

during such perlod the applicant shall Police Station;

(b)	the applicant will not seek to have repaid to him, or paid to any other person, the cash deposit of five thousand
dollars ($5,000) now held by the Clerk of the Local Court at 302 Castlereagh Street, Sydney;

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(c) the applicant will not seek to recover	- -
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possession of his existlng passport and	-
will not apply for the lssue of a new passport; and

(d) the applicant will contlnue to reslde at 24 Ralne Street, Liverpool.

AND THE COURT FURTHER ORDERS THAT:

2.        The clerk of the Local Court at 302 Castlereagh Street, Sydney, be restrained, pendlng the

determination of thls application or earlier order,

from paying out to any person the said cash deposit of five thousand dollars ($5,000).
Note:	Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules.

NOT FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY )	NO. N G 239 of 1989
GENERAL DIVISION

BETWEEN: JAMAL ABDUL KADAR HADDAD

Applicant

AND: HELEN LARCONBE

First Respondent

FEDERAL REPUBLIC OF GERMANY

Second Respondent

COMMONWEALTH DIRECTOR OF

PUBLIC PROSECUTIONS

Thlrd Respondent

CORAN :  WILCOX J

PLACE : SYDNEY

DATE: - 11 MAY 1989

- EXTEMPORE REASONS FOR JUDGMENT

I thlnk that this is an appropriate case in whlch to

grant ball pending the hearing of the application for a
review, sublect to certain conditions and subject to the
understanding that the applicant and his legal advisers will
be prepared to do all that is necessary to bring the matter on
for a final hearing on the merits at the earllest convenient
date.

The reasons for my vlew are as follows. Firstly,

whatever the positlon might have been under the previous
legislation, whereln I think it is true to say that there was
at least a predisposition towards retaining persons in custody
pending the outcome of review, the Extradition Act 1988 does
not indicate any prima facie position as to whether or not an

applicant for review should be retalned in custody or admltted

to ball. By s.21(6) of the Act the court to which the

application for review is brought -- that is of course in the
present case this Court -- has a discretion elther to order
that the person be kept in custody or alternatively to order
the release on bail of the person on such terms and conditions
as the court thinks fit. The legislation does not suggest

that one course or the other is to be the general course. The

court is given an open discretion to choose between these,two -

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situations according to the merlts of the particular case? -

In the present case it appears that the applicant is a married man with a young child. He apparently resldes with his wlfe in a home which they are purchasing. He is in

regular employment. All of these are reasons for thinklng
that he would not readlly depart his present abode or seek to
flee the country. When one adds to these conslderatlons the
fact that hls passport has been surrendered and that a cash
deposit of $5,000 has been lodged, both of whlch situations I
think should continue, there are further problems about
abscondment.

Although I think that the matter can and should be

brought on for final hearing at an early dage, there will Inevitably be a delay of two weeks or perhaps more and it would be an imposition upon the applicant if he were kept in

custody and forced to lose the earnlngs that he otherwise

would earn during that period.

Secondly, I also take lnto account the circumstances

relating to the extradition application. The Court has been informed -- and thls statement of facts has been accepted on behalf of the Director of Public Prosecutions -- that the

applicant is wanted in Germany in connection with an alleged

breach of his parole following a suspended sentence of two

years imprisonment for an offence whlch took place in 1983.	-
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He was . apparently dealt with in April 1983 when he was

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sentenced to two years imprisonment, but this sentence was
suspended for two years. In December 1983, according to what
I have been told, he was put under two years probation.

Apparently he left Germany before the expiration of that two

year period. In a manner which is not presently clear to me,

in May 1986, that 1s to say after the two year period had in any event expired, it appears that the German court purported to rescind the applicant's parole. I gather that he is wanted

because of that decision.

As I say, precisely what is the position in Germany

but it does seem to be the position that the offence for which
the applicant was convicted -- which was apparently an assault
and steal -- is on the mlnor end of the crlminal scale and was
thought appropriately to be dealt wlth by a suspended
sentence. This is not a reason for suggesting that
extradition should not take place if it is otherwise
warranted, but I think that it is relevant in considering the
likelihood of the applicant absconding if admitted to bail.

and under German law is not clear to me at the present stage; faclng a trlal or an imprisonment for a very serious offence, and therefore the prospect of spending many many years in gaol, the chances of abscondment would be much hlgher.

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-	In all the circumstances I thlnk that thls is an2:	-
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appropriate case for release from custody. The order thae I

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make is -1n the following form:

I order pursuant to s.21(6)(f) of the Extradition Act 1988 that the applicant be released on bail pendlng the determination of his application for review or earlier order subject to the following conditions:

(a)	during such perlod the applicant shall report each day, between the hours of 6 am and 12 midnight, to the ~lverpool Pollce Station;
(b)	the applicant will not seek to have repaid to hlm, or paid to any other person, the cash deposit of $5,000 now held by the Clerk of the Local Court at

302 Castlereagh Street, Sydney;

(C) the applicant wlll not seek to recover

possession of his existing passport and
wlll not apply for the issue of a new

passport; and

(d) the applicant will continue to reside at

24 Raine Street, Liverpool

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- I further order that the Clerk of the Local	-
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- Court at 302 Castlereagh Street, Sydney, be

restrained, pending the determination of this application or earller order, from paylng out to any person the said cash deposit of $5 ,000

I certify the flve (5)
preceding pages to be a true copy
of the Reasons for Judgment of

his Honour Justice Wllcox.~

Associate: ~ U ~ I L &

Date:	19 June 1989
Counsel for the Applicant:	Mr P Klntominas
Solicltors for the Applicant:	Benjamin & Khoury

Appearance for the Respondents: Mr R P McMahon (Solicltor)

Solicitors for the Respondents: Director of Public

Prosecutions

Date(s) of hearlng:  11 May 1989