Hempel v Moore

Case [1987] FCA 103


Re: ARTHUR JAMES HEMPEL and LAURENCE ETHEREDGE
And: KENNETH MOORE
No. WA G125 of 1986
Extradition

COURT

IN THE FEDERAL COURT OF AUSTRALIA


WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.
CATCHWORDS

Extradition - pending appeal to Full Court - joinder of Director of Public Prosecutions - role of Director of Public Prosecutions in extradition proceedings - expedited appeal - bail application pending appeal - power of single judge - no power under s.23 Federal Court of Australia Act 1976 - whether power under O.53 r.35 - whether "criminal case" - principles governing exercise of power to release on bail - policy of Extradition (Foreign States) Act 1966 - anomalous provisions relating to bail - exceptional circumstances required to warrant grant of bail pending appeal - bail application rejected.

Federal Court of Australia Act 1976 ss. 23, 25, 59, 59(2)(f)

Extradition (Foreign States) Act ss.17(6), 18A(6)

Federal Court Rules O.52 r.35

Federal Republic of Germany v. Schlieske (unreported Sweeney J. 24/10/86)

Amrit Lal Narain v. Director of Public Prosecutions (unreported Full Court 9/2/87)

Bercove v. Hermes (No.2) (1983) 51 ALR 105

Amand v. Home Secretary (1943) AC 147

Zacharia v. Republic of Cyprus (1963) AC 634

Re: Groves (1973) QdR 310

R. v. Phillips (1922) 38 TLR 897

HEARING

PERTH

#DATE 9:3:1987

Counsel for the Appellants: Mr J. Courtis instructed by Lohrmann Tindal & Guthrie.

Counsel for the Director of Public Prosecutions: Mr M. Lee QC and Mr K.P. Bates instructed by Director of Public Prosecutions.

ORDER

The Director of Public Prosecutions be joined as second respondent to the appeal.

The appeal be expedited to the extent necessary to enable it to be listed at the sittings of the Full Court in Perth commencing 19 May 1987.

The appellants' motion for an order that they be released on bail be dismissed.

Appellants to pay the second respondent's costs of the appellants' motion in any event.

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

JUDGE1

On 29 August 1985 the appellants sailed the vessel Orionia from the port of Eilat in Israel and travelled in it to Albany in Western Australia where they arrived on 22 January 1986.

  1. According to Israeli authorities they were, by taking the boat, guilty of stealing it contrary to s.393(2) of the Israeli Penal Code.

  2. The day following their arrival in Albany the appellants were arrested by officers of the Australian Federal Police pursuant to warrants issued under s.16 of the Extradition (Foreign States) Act 1966.

  3. They were taken into custody and after an appearance in the Albany Court of Petty Sessions, were remanded in custody to appear in the Perth Court of Petty Sessions on 31 January 1986.

  4. They appeared in the Perth Court of Petty Sessions on 31 January and were remanded for a further 7 days. On 7 February they again appeared in that Court and were then released on bail to appear on 20 February. The release on bail was pursuant to sub-ss.…

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Details
AGLC
Hempel, A.J. & Anor v Moore, K. & Anor [1987] FCA 103
Case
[1987] FCA 103
Decision Date

CaseChat Overview and Summary

The case of Hempel v Moore involved the appellants, Hempel and Moore, who were facing extradition to a foreign jurisdiction. They sought to be released on bail pending an appeal to the Full Court against a decision of a single judge of the Federal Court of Australia. The respondents to the appeal were the Commonwealth of Australia and the Director of Public Prosecutions. The appellants also sought to join the Director of Public Prosecutions as a second respondent to the appeal. The legal issues before the court centred on the role of the Director of Public Prosecutions in extradition proceedings, the power of a single judge to grant bail in such cases, and the principles governing the exercise of that power.

The court determined that the Director of Public Prosecutions should be joined as a second respondent to the appeal, as the Director has a significant role in extradition proceedings. Regarding the expedited appeal, the court found that the appeal should be listed at the sittings of the Full Court in Perth commencing 19 May 1987 to the extent necessary. In relation to the bail application, the court held that a single judge of the Federal Court had no power under section 23 of the Federal Court of Australia Act 1976 to grant bail in such cases. The court further examined whether the power to release on bail could be exercised under O.53 r.35 of the Federal Court Rules and whether the proceedings constituted a "criminal case." The court held that the principles governing the exercise of the power to release on bail in extradition cases must align with the policy of the Extradition (Foreign States) Act 1966. The court found that the anomalous provisions relating to bail in extradition cases required exceptional circumstances to warrant the grant of bail pending appeal. In this case, the appellants' bail application was rejected.

The final orders of the court were that the Director of Public Prosecutions be joined as a second respondent to the appeal, the appeal be expedited to the extent necessary to enable it to be listed at the sittings of the Full Court in Perth commencing 19 May 1987, the appellants' motion for an order that they be released on bail be dismissed, and the appellants to pay the second respondent's costs of the appellants' motion in any event. The settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

Orders

Orders of the court

The Director of Public Prosecutions be joined as second respondent to the appeal.

The appeal be expedited to the extent necessary to enable it to be listed at the sittings of the Full Court in Perth commencing 19 May 1987.

The appellants' motion for an order that they be released on bail be dismissed.

Appellants to pay the second respondent's costs of the appellants' motion in any event.

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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