Holt v Hogan
[1993] FCA 664
•17 SEPTEMBER 1993
HENRY PETER HOLT AND CHRISTINE MARY HOLT v. DAVID HOGAN
Nos. QG123 and QG124 of 1993
FED No. 664
Number of pages - 19
Extradition
(1993) 117 ALR 378
(1993) 44 FCR 572
(1993) 70 A Crim R 225
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND REGISTRY
GENERAL DIVISION
COOPER J
CATCHWORDS
Extradition - bail application - determination that eligible for surrender to the United States of America - committed to prison to await surrender - application for an Order of Review - jurisdiction to grant bail - consideration of what constitutes "special circumstances" - policy and public interest underlying the Act - presumption implicit in section 21(6)(f)(iv) that ordinarily bail not to be granted - satisfying court to depart standards - predisposition against unnecessary or arbitrary detention in custody - time already spent in custody given weight but not decisive - once special circumstances made out then whether as a matter of discretion bail ought to be granted.
Extradition Act 1988 Sections 21(6)(f)(iv), 19, 22(5), 21(1), 3.
Schoenmakers v. Director of Public Prosecutions (1991) 30 FCR 70
Schoenmakers v. Director of Public Prosecutions (No.2) (1991) FCR 429
Forrest v. Kelly (SG99 of 1991); Melbourne 20.12.91, Unreported; Lockhart, Ryan and Heerey JJ
Ex parte Maher (1986) 1 QdR 303
Zoeller v. Federal Republic of Germany (1989) 90 ALR 61
Lim v. Gregson (1989) WAR 1
The Queen v. Giordano (1982) 31 SASR 241
R. v. Ladd (1958) 75 WN (NSW) 431
HEARING
SYDNEY (Heard in Brisbane), 8 September 1993
#DATE 17:9:1993
Counsel for the Male Applicant: Mr. W. Cuthbert
Solicitors for the Male Applicant: Witheriff Nyst
Solicitor for the Female Applicant: Mr. C.S.J Nyst of Witheriff Nyst
Counsel for the Respondent: Mr. P. Flanagan
Solicitors for the Respondent: Commonwealth Director of
Public Prosecutions
ORDER
The Court orders:
1. That CHRISTINE HOLT be admitted to bail on the following conditions:-
(1) The applicant enter into a recognisance in the sum of $100,000.00 in a form to be approved by the Director of Public Prosecutions with ROSS WINSTON TISCH and DESMA JOY KENMAN as sureties with an undertaking before a Justice of the Peace of $100,000.00 and subject to her:-
(a) Surrendering any current Australian, New Zealand or other passport presently in her possession to the Director of Public Prosecutions;
(b) Not applying for the issue to her of any Australian, New Zealand or other passport or other document of travel;
(c) Residing at 30 Edinburgh Drive, Bethania Waters or at such other address as may be approved in writing by the Director of Public Prosecutions, such approval to be obtained prior to the taking up of such residence;
(d) Not attending at any port of international departure;
(e) Not leaving the State of Queensland without the prior written approval of the Director of Public Prosecutions;
(f) Reporting once daily between the hours of 8.00 a.m. and 4.00 p.m. to the Officer-In-Charge, Australian Federal Police, Corner of Marie and Graham Streets, Milton, or as otherwise agreed in writing by the Director of Public Prosecutions;
(g) Prosecuting her appeal with all reasonable dispatch;
(h) Appearing personally at the hearing of the order to review at the date and time to be directed by the District Registrar and surrendering herself into the custody of the Court and abiding by any further order of the court as to custody.
(2) There be liberty to the Director of Public Prosecutions to apply for revocation of bail in the event of any material change of circumstances giving rise to a risk that the applicant will not appear on the order to review, including the execution of any plea agreement with the United States Department of Justice.
2. That the application of HENRY HOLT for bail be dismissed, reserving to him leave to re-apply for bail in the event of the hearing of his appeal not proceeding on 18 October, 1993 without default on his part.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
COOPER J There are before the Court two notices of motion seeking bail pursuant to section 21(6)(f)(iv) of the Extradition Act 1988 ("the Act"). One motion is brought by Henry Peter Holt; the other by Christine Mary Holt, his wife. Bail is opposed by the Director of Public Prosecutions (Cth), the Attorney-General of the Commonwealth and the United States Attorney-General.
The applicants were arrested at their home at Sanctuary Cove Queensland on 8 January, 1993 on a provisional warrant pending the hearing of an application by the United States of America for their extradition to that country. On 8 January, 1993 the applicants appeared at the Magistrates Court at Southport Queensland and were remanded in custody. They have remained in custody since that time.
In the material filed in support of the application for extradition was an indictment of a grand jury in California dated May, 1986 charging each of the applicants with nineteen (19) counts which may be described as Conspiracy, Mail Fraud, Wire Fraud and False Statement to a federally insured bank. The offences were alleged to have occurred in the United States in the years 1982 to 1984 inclusive.
On 9 November, 1986 warrants for arrest issued out of the United States District Court for the Central District of California for the arrest of the applicants. Each warrant was endorsed "Bail fixed at $50,000 C/S Corporate Surety". The warrants were signed and bail fixed by a Deputy Clerk of the Court. On 30 September, 1992 fresh warrants were issued in the same form as the earlier warrants but were signed by a Judge of the Court. The execution of the warrants by a judge of the court was effected to ensure that the warrants were sufficient for the purposes of applications for extradition brought in Australia under the Act for the extradition of the applicants to the United States.
The applicants applied for bail on 12 January, 1993 before a Magistrate at Southport. The applications were refused. The applicants each made a further application to Mr. Hogan SM for bail in March, 1993. The applications were refused on 10 March, 1993.
Mr. Hogan SM on 15 July, 1993 determined, pursuant to section 19 of the Act, that the applicants were eligible for surrender to the United States of America in relation to Counts 1, 15 and 19 of the indictment. He further ordered that the applicants be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under Section 22(5) of the Act. On 26 July, 1993 each applicant filed in this court an application for an Order of Review of the decision of Mr. Hogan SM.
Where an application for a review of the Magistrates order is filed in this court in accordance with the requirements of section 21(1) of the Act, this court has jurisdiction under section 21(6)(f)(iv) of the Act to:
"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".
In Schoenmakers v. Director of Public Prosecutions (1991) 30 FCR 70, French J said (at 74-75):-
"The reference to 'special circumstances' in the context of this legislation imports a presumption against the grant of bail and puts the onus on the applicant to demonstrate that an order for bail would be justified. There are two stages in the decision-making process under s. 21(6)(f). The first involves the threshold question whether there are special circumstances of the kind contemplated by the section. If that question is answered in the affirmative, the court must then consider whether, in the exercise of its discretion, it should make an order for release of the applicant on bail and, if so, upon what terms or conditions. The first question, whether there are special circumstances, involves a value judgment about which of the range of circumstances favouring the grant of bail are to be regarded as special and which are not. That is a judgment to be made by reference to two criteria; the general purpose of the provision imposing the requirement and broader community standards. The purpose of the special circumstances requirement imposed by s.21(6)(f) is apparent from the nature of the legislation and the terms of the explanatory memorandum relating to the 1987 Bill and the equivalent provisions in s.
15. It is to reduce what is perceived as 'the very high risk of persons sought for extraditable offences absconding'. It looks in particular to the case where a person is in Australia to avoid arrest in the country in which he is alleged to have committed the offence. .....
In my opinion it can never be regarded as anything other than a special circumstance that a person should have to spend a year in prison unconvicted of any offence. A presumption in favour of liberty and against deprivation of liberty without just cause runs through the traditions of the common law which Australia has inherited from the United Kingdom. Article 39 of the Magna Charta provides that: 'No Free-man's body shall be taken, nor imprisoned, nor disseised, nor outlawed, nor banished, nor in any ways be damaged, nor shall the King send him to prison by force, excepting by the judgment of his Peers and by the Law of the land'. And Article 9 of the International Covenant on Civil and Political Rights, to which Australia is a party, provides:
'1. Everyone has the right to liberty and security of person. No one shall be subject to arbitrary arrest of detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation'. The reference to the latter article is not intended to suggest that Mr. Schoenmakers' detention has been unlawful but rather serves as an indication of the value placed by Australia, as part of the international community, on the liberty of the individual and the presumption in favour of that liberty. That presumption must, of course, give way to specific statutory provisions. But where those provisions do, as in the case of the Extradition Act, allow for normative judgments of the special circumstances under which bail may be granted, then the presumptions arising under the common law and in relevant international instruments may be taken into account.
I appreciate that the law has generally taken a restrictive approach to the grant of bail after an order has been made committing a person to prison pending surrender to the requesting country: see R. v. Phillips (1922) 38 TLR 987; Re Gifford (1930) 1 DLR 800 at 802; Hempel v. Moore (1987) 13 FCR 480 at 488. This restrictive approach has been applied in Australian cases: see Hempel (sic) v. Moore
(supra) and Zoeller v. Federal Republic of Germany (1989) 64 ALJR 137. But each case turns on its own facts".
Schoenmakers did not answer his bail when his appeal came on for hearing. In subsequent proceedings to escheate the recognizances of his sureties, Foster J said in Schoenmakers v. Director of Public Prosecutions (No. 2) (1991) FCR 429 (at 441-442):-
"Moreover, in the present case, the granting of bail pending appeal occurred only because his Honour held, as required by the section, that there were special circumstances justifying that course. As his Honour noted in his careful judgment the requirement of 'special circumstances' had been introduced by the Extradition Amendment Act 1990 (Cth). It is clear, as his Honour held, that the Explanatory Memorandum which accompanied the Extradition Bill 1987 (Cth) provides an explanation of the 'special circumstances' requirement where it appears in the legislation, in the following terms: 'Sub-clause (6) provides that a person shall not be granted bail unless there are special circumstances. 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, ie the person left the jurisdiction to avoid justice'. It is proper to note that his Honour found that Mr Schoenmakers had not come to Australia to avoid arrest in the United States of America. However, in my view, the introduction of the requirement that bail be granted only in special circumstances to a person who has been found eligible for extradition, and who has appealed against that finding, indicates that in extradition matters all aspects of the bail procedure should be approached with particular circumspection. It must be remembered that the interests of another country, with which Australia has treaty obligations, are involved in the retaining of control over the person bailed".
In the Full Court of this Court (Lockhart, Ryan and Heerey JJ) in Forrest v. Kelly (SG99 of 1991; Melbourne 20.12.91, Unreported) Lockhart J, with whom Heerey J agreed, said (transcript page 3-4):-
"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 CJ 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 CJ 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 the 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. 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 CJ 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 CJ in Zoeller's case. 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 9 and 10. .....
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'. 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".
Although the considerations of public interest which are relevant to an application for bail after conviction pending appeal are different from those which lie behind section 21(6)(f)(iv) of the Act, the approach of the courts to the process of determining whether special or exceptional circumstances are made out in those cases are of assistance in determining the approach to be taken to the resolution of the issues which arise under the section. In Ex parte Maher (1986) 1 QdR 303, Thomas J as a member of the Full Court of the Supreme Court of Queensland, after identifying the public factors calling for a cautious approach to the exercise of the discretion to grant bail after conviction, said (at 310-311):-
"The discretion is one that is not lightly to be exercised, and is one that requires factors of sufficient force to outweigh the public factors I have mentioned. I am content to use the phrase 'exceptional circumstances' to describe such factors. Fullagar J adopted such a phrase in Re Cooper's application for bail (1961) ALR 584, observing:
'...the principle applicable is just the same as that applicable where there has been a conviction by a jury, and the cases are uniform that bail will not be granted after conviction and pending appeal unless exceptional circumstances are shown'."
Moynihan J said in Maher (at 314):-
"It is plain to my mind, again for the reasons given by my brothers, that a conviction gives rise to serious considerations militating against the grant of bail. Not least of these are the public policy considerations referred to by my brother Thomas in his reasons and with which I agree. These considerations are such that they are to be outweighed by other conveniently called 'special' considerations before a discretion to grant bail can be properly exercised in the case of a conviction".
In Zoeller v. Federal Republic of Germany (1989) 90 ALR 61, Mason CJ dealt with an application for bail in the extradition context. His Honour held that the High Court had no jurisdiction to grant bail under the Act in the absence of an appeal pending in the Court, an application for special leave to appeal being insufficient. His Honour held that where recourse was had to the inherent jurisdiction of the court "to justify an order for bail, something exceptional needs to be shown" (at 164). After reviewing the factors relied upon by the applicant his Honour concluded "these factors, even when taken together do not constitute special circumstances which would enliven the court's jurisdiction to grant bail". His Honour equated "exceptional" with "special" in the context in which he was speaking and as Lockhart J observed in Forrest v. Kelly, it is the same concept with which section 21(6)(f)(iv) of the Act deals.
It was submitted by Counsel for the Director of Public Prosecutions that the only circumstances which were relevant to the issue of "special circumstances" were those which touched on the question of the availability of the applicants for extradition in the event that their applications for orders to review failed. That is, were the circumstances so special to make it probable that the applicants would not abscond but would remain available to be surrendered for extradition. It was submitted that considerations which ordinarily are taken into account in the exercise of a discretion to grant bail are excluded from the consideration of whether the requisite "special circumstances" exist. In support of this contention Counsel for the respondent relied on certain observations of Malcolm CJ in Lim v. Gregson (1989) WAR 1 at 18, where his Honour said:-
"The primary issue before the learned judge was whether, notwithstanding that the appellant had been charged with wilful murder, the circumstances were sufficiently exceptional to make it probable that the appellant would not abscond, but would respond to his bail."
His Honour continued after reviewing the facts and the personal circumstances of the accused, including the fact that he had put forward evidence on oath as to his defence to the charge of murder (at 20):-
"In my opinion, the matters deposed to in the affidavits filed on behalf of the appellant reveal a set of circumstances which are sufficiently exceptional in that, notwithstanding the seriousness of the charge and the severity of the potential penalty it is not probable that the appellant will abscond".
It was further submitted that the two stage approach taken by French J in Schoenmakers and by Ryan J in Forrest v. Kelly demonstrated that until the special circumstances are made out, the ordinary circumstances appropriate to the exercise of a discretion to bail do not arise.
The submissions, in my view, direct too narrow a focus of what may amount to special circumstances. I accept that a paramount consideration is whether the presence of the applicants to be surrendered to extradition can be secured. However, it is not the only consideration. As French J held in Schoenmakers, the liberty of the subject is a matter also to be considered. Neither Foster J in Schoenmakers (No. 2), nor the members of the Full Court in Forrest v. Kelly demurred to this aspect of his Honour's reasons. Lockhart J expressly acknowledged that assistance as to the concept of special circumstances could be obtained by reference to the reasons of French J, although he would not put any limitation on the circumstances, as French J had done, by reference to a category of persons who had left the jurisdiction to avoid justice. Ryan J's judgment does not admit of a sole or closed category of circumstances which may be special when he said:-
"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".
A similar approach to that taken by Ryan J was taken by King CJ (with whom Zelling and Matheson JJ agreed) in The Queen v. Giordano (1982) 31 SASR 241. The case concerned an application for bail after conviction. King CJ said (at 243):-
"It is unnecessary, and would be unwise, to attempt to compile a list of circumstances which would be regarded as exceptional. The totality of the circumstances must be looked at".
In my view the correct approach is to start by identifying the policy and public interest underlying the provisions of the Act. The principal objects of the Act are set out in section 3 which provides:-
"3. The principal objects of this Act are:
(a) to codify the law relating to the extradition of persons from Australia to extradition countries and New Zealand and, in particular, to provide for proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited, without determining the guilt or innocence of the person of an offence;
(b) to facilitate the making of requests for extradition by Australia to other countries; and
(c) to enable Australia to carry out its obligations under extradition treaties".
Additionally, one bears in mind the concern of the legislature, in providing that special circumstances be established before bail is considered, as reflected in the explanatory memorandum which accompanied the Extradition Bill in 1987, namely that experience has shown that there is a very high risk of persons sought for extraditable offences absconding. As Foster J said in Schoenmakers (No. 2), these circumstances dictate that the court approach the matter with an attitude of circumspection.
Against these matters one then identifies and weighs the particular circumstances of the applicant for bail keeping in mind broad community standards including a predisposition against unnecessary or arbitrary detention in custody. In considering the circumstances of a particular applicant for bail one does not exclude those circumstances which ordinarily would fall for consideration on an application for bail where a person is charged domestically for the commission of a crime in this country. All personal circumstances are taken into consideration, notwithstanding that some or all of them will again fall for consideration if special circumstances are established as a condition precedent to the exercise of a jurisdiction to grant bail.
The special circumstances which the applicant for bail must establish are those which satisfy the court that it is justified in departing from the presumption implicit in section 21(6)(f)(iv) of the Act that ordinarily bail is not to be granted. This is the same approach taken at common law where "special" or "exceptional" circumstances must be demonstrated (see for example R. v. Ladd (1958) 75 WN (NSW) 431 at 432 - 433). Of course, unless the court was satisfied that it was not probable that the applicant would abscond, it is hard to imagine any situation where special circumstances would be made out. But in assessing that probability regard may be had to the personal circumstances of the applicant and the ability of the court to impose conditions which maximise the likelihood that an applicant will answer bail. It is not in my view that the circumstances are so exceptional or special that it is not probable that the applicant will abscond which is the sole or appropriate test required by section 21(6)(f)(iv), but rather whether the circumstances are such as to displace the ordinary rule against bail because the personal and other public interests underlying the proven circumstances outweigh the statutory interests and concerns evident in sections 3 and 21(6)(f)(iv) of the Act. Certain matters which touch a particular applicant, for example the time already spent in custody and the time the applicant faces in custody until the court can determine the merits of the appeal, are matters that may be given considerable weight although in themselves they may not be decisive of the outcome in any particular case.
If special circumstances are identified, then the next question is whether as a matter of discretion bail ought to be granted. The primary consideration in the exercise of this discretion is whether the circumstances of the applicant and the appropriate conditions of bail are such as to satisfy the court with a reasonable level of certainty that the applicant will remain available for extradition in the event that any appeal be unsuccessful.
In the present case each applicant has been in custody since 8 January, 1993 and the substantive appeal from the Magistrate's order has been set down for hearing for five days commencing 18 October, 1993.
On behalf of both applicants it is submitted that the offences the subject of the counts which the Magistrate found to be eligible offences were alleged to have been committed in 1982/1983, that is ten years ago.
On the material the applicants who are New Zealand citizens were resident in the United States between 1980 and 1984. On the material the applicants when they went to the United States had considerable means, but due to changed economic circumstances their business enterprises failed in 1984 and they returned to New Zealand with little or no money in order to re-establish themselves in that country. The applicants say that they left the United States openly in 1984 and returned to New Zealand where they lived openly until they moved to Queensland in 1988.
In March, 1984 the American attorneys representing Bank Hapoalim, a bank carrying on business in the United States, advised the applicants' solicitors in Christchurch, New Zealand, that the bank had instituted proceedings in the United States to recover the funds owing to the bank by the applicants. Those proceedings were not defended and a default judgment was entered in the United States on 3 May, 1984. A copy of the default judgment was sent to the applicants' New Zealand solicitors. Later in 1984 the US Embassy in Canberra contacted the applicants' New Zealand solicitors to inquire in relation to Mr. and Mrs. Holt and were advised that the applicants were prepared to provide information per medium of their solicitor to any inquiry which the Embassy may have. This willingness to provide information was confirmed in writing to the Embassy by the applicants' New Zealand solicitors. Thereafter, the applicants had no further contact with the American authorities or the bank until they were arrested on 8 January, 1993.
Bank Hapoalim is the principal bank referred to in the particulars of charge contained in the grand jury's indictment. The grand jury returned the indictment in 1986, however, no steps apparently were taken to enforce extradition proceedings against the applicants until late 1992. There is further evidence to suggest that in 1984 at least the Federal Bureau of Investigations in the United States as a result of conversations with an acquaintance of the applicants in the United States was made aware that the applicants were present in New Zealand and that their New Zealand telephone numbers were available. It was submitted that on the whole of the evidence I ought to find that the United States authorities have at all times known where the applicants were, or have had it within their means to find out where the applicants were, and yet for an unexplained reason have failed to take any timely steps to secure their apprehension and extradition to the United States.
From early this year the applicants through their Queensland solicitors and through attorneys engaged on their behalf in California have sought to locate the whereabouts of certain company and other documentation left by them in the United States when they returned to New Zealand in 1984. Evidence of these attempts and the response from the United States authorities was objected to by the respondent on the basis that such material was irrelevant as section 19(5) of the Act prohibited the receipt before the Magistrate of any exculpatory material, the Magistrate not being concerned with the guilt or innocence of the person in respect of whom extradition was sought. It was submitted on behalf of the applicants that the material was relevant on two bases. The first, to explain the delay in part between the date of arrest and final hearing by the Magistrate of the requests for extradition. Secondly, to show that the applicants had sought to obtain access to the material to put before the American authorities documentation and evidence which was exculpatory of the offences with which they were charged. The purpose sought to be achieved by presenting such material was to convince the authorities to either withdraw the extradition requests or include in the material to be forwarded to the Australian courts a broader range of material to give a balanced and fairer view of the facts and circumstances surrounding the transactions the subject of the charges.
The failure to give access to the material or to consider it, and, the apparent loss of some of it notwithstanding that it came into the custody of the US authorities, are circumstances which the applicants say, together with the unexplained delay, will support a permanent stay of the proceedings in the United States because of an absence of "due process" under the United States Constitutional guarantees. In this regard they are supported by two opinions from American attorneys which are contained in the material before the court. Not surprisingly the US Justice Department disputes that there is any real likelihood of a permanent stay and contends that the occasion to explain the delay and deal with any allegation of prejudice or abuse does not arise until the applicants are extradited back to the United States. It is submitted by the applicants that evidence of a real prospect of a permanent stay means that there is less likelihood of them absconding and on this basis alone, without considering the material as explanatory of the delay, the evidence is relevant and admissible. I agree.
When the warrants for the arrest of the applicants issued in the United States in 1986 bail was fixed in an amount of US$50,000.00 for each applicant. There is evidence in the opinion of the applicants' US attorney that under the relevant federal law, if the parties are extradited to the United States they will immediately be granted bail in terms of that which has already been fixed. The US Justice Department contends that bail must be applied for again and that it will be opposed by the Department, or, should the bail be fixed in fact as contended for by the applicants, the Department will move for the revocation of the bail. The applicants submit that it is a relevant circumstance that the United States authorities saw fit to nominate bail in 1986 in the sum of US$50,000.00 when on the available evidence they were aware that the applicants were no longer in the United States and then resident in New Zealand, and where, if they are extradited, there is a real prospect that they will immediately be released upon bail.
The respondent does not contend before me, although there was earlier a suggestion in the correspondence, that the applicants fled from the United States in order to avoid apprehension. There is no evidence of flight and nothing to suggest that at the time the applicants left the United States they were aware or apprehended any criminal proceedings being instituted against them.
Since their incarceration and in consequence of submissions put to the United States Justice Department by the applicants' solicitors and American attorney, the Justice Department has formed the view that the "equities" of the applicants' position are such that it would be appropriate to offer a plea agreement to them. Offers and negotiations have been continuing for some months, the position now reached being that the Justice Department has offered the male applicant the chance to plead to one count and to have the time spent in custody in Queensland set-off against any custodial sentence which might be imposed by an American court. Insofar as the female applicant is concerned, the offer is that the Justice Department would accept a plea to one count and would treat the time spent in custody in Queensland as a sufficient discharge of any custodial sentence which might ordinarily have been imposed. The offers contain a number of conditions. For example, the offers are conditional upon both husband and wife agreeing to plead, giving up all rights on appeal from the order of the Magistrate and agreeing to surrender voluntarily to extradition under the Act, and further, to give up all constitutional rights and guarantees which might otherwise be available to them if they were extradited to stand trial in the United States.
Evidence of the plea bargaining was objected to by the respondent on the basis that it was irrelevant. It was submitted that the evidence was irrelevant to the making of the extradition order, the making of any surrender order, irrelevant to Australia's treaty obligations under the Act and irrelevant to the bail application in the context of those obligations. I do not agree.
Although the respondent quite properly seeks to stress the purpose of the Act and Australia's obligations under it to requesting countries in terms of the relevant treaties, the Act provides rights and protections for persons arrested in Australia and subject to possible extradition to an overseas country for trial. The plea agreements contain terms which would require the applicants to give up the rights provided to them under the Act and as a practical measure require that decisions be made whether to give up those rights and enter a plea agreement while incarcerated in prison. In the instant case it means, particularly so far as Mrs. Holt is concerned, that a decision must be made whether to end incarceration in Queensland at an early time by accepting a plea leading to a speedy return to the United States and immediately or shortly thereafter to a plea in an American court with, in her case, the probable final release from custody, or whether to remain in custody in Queensland in the absence of bail until the proceedings are finally heard and determined.
The applicants submit that they have been in custody for eight months with the prospect of a further period (one month) in custody before their applications will be heard in circumstances where they have not been tried or convicted, where they have had no opportunity to put forward material exculpating themselves from the charges laid against them, where the male applicant is 52 years of age and the female applicant 42 years of age, both with a previous unblemished character and no previous convictions. The respondent submits that the delay is irrelevant because it has occurred without fault on the part of the respondent or the applicants and results from the attempt to obtain the documentation in the United States to make further submissions to the United States authorities and the time constraints on the availability of a Magistrate and court facilities to finally hear and determine the applications for extradition. It is submitted that those circumstances do not bear on the question of whether the applicants or either of them is likely to abscond if granted bail. It is further submitted that any future delay is irrelevant because such delay is the ordinary consequence of the work load of the courts in discharging their ordinary jurisdiction and regrettably delay in those circumstances is commonplace.
There is evidence from Dr. Peter Mulholland, a forensic psychiatrist who examined the female applicant in February, 1993 and August, 1993, to the effect that she continues to suffer from an adjustment disorder with depressed moods and although her condition has not deteriorated since he first saw her, he holds some fear that her condition may worsen due to her continued incarceration in the maximum security area of the Brisbane Womens Correctional Centre where she is placed with high risk inmates and goes in fear of her own safety. It is submitted by the respondent that the adverse effect which the period of detention has had on the mental state of the female applicant, which it is submitted is no more than the ordinary impact which any ordinary citizen would suffer when placed in jail, is likely to predispose the female applicant to abscond if there is a real prospect that her appeal will fail.
The applicants offer sureties from friends in the sum of $100,000.00 and offer to report daily and comply with any other conditions which the court may see fit to impose upon any grant of bail to them. Against this, on the evidence, they have no family ties in Australia, have no substantial assets in Australia, and, are New Zealand citizens.
The applicants rely upon the following factual circumstances together or in part as constituting special circumstances within the meaning of the Act:-
(a) There is no evidence of flight from the United States;
(b) Bail has been fixed in the United States;
(c) Of the original nineteen counts, only three have been found to be extraditable offences;
(d) The grounds of review set forth in their applications for review of the Magistrate's decision are bona fide made and not unarguable;
(e) There are serious doubts that a conviction would be secured in the United States because of a failure of "due process" on the part of the United States prosecuting authorities;
(f) There has been serious delay in bringing the charges which are ten years old;
(g) There has been serious delay and will be further delay in the final determination of the application for extradition during which time the applicants have been held in custody;
(h) The female applicant is in a state of poor emotional health because she is held under high security in a maximum security prison pending any possible extradition;
(i) The United States authorities have seen fit, having regard to the "equities" of the applicants' situation including their age, lack of prior convictions, and time spent in custody in Australia, to offer to plea bargain;
(j) The female applicant is placed in a position where she can end her incarceration in the reasonably foreseeable future by accepting a plea, the United States authorities being prepared to accept her time in prison in Australia as equal to any appropriate sentence provided that her husband also agrees to plead in terms of the offer made to him;
(k) Adequate conditions can be imposed upon the granting of bail, including the provision of substantial sureties to ensure that they remain in the jurisdiction and answer their bail.
The respondent submits that these circumstances neither as a whole, nor as to any combination of them, nor individually outweigh the public interest in retaining the applicants in custody to ensure Australia's treaty obligations to the United States can be met by their surrender to extradition should their appeals fail.
In my view so far as the female applicant is concerned there are special circumstances justifying the grant of bail. She has been in jail for a considerable period of time held in maximum security and this has had an adverse consequence on her mental state. She has the potential to end her incarceration within the reasonably foreseeable future by agreeing to plead guilty in the United States. To do that she must secure the agreement of her husband to also plead. The price she must pay to secure an end to her incarceration is to give up her rights under the Act including to withdraw her present appeal and her application for bail and to give up her rights to a trial in the United States if extradited, including, her constitutional rights to "due process" which might lead to a permanent stay of the prosecution in the United States. Her continued incarceration without bail militates severely against a free and informed choice as to whether or not she should exercise her rights in Australia to resist extradition, or if extradited, her constitutional rights in the United States, or, simply agree to a plea in order to end her incarceration. Relevant to that pressure is the fact that she has been incarcerated for eight months, she suffers an adjustment disorder with depressed moods and faces further incarceration until her appeal is heard and determined. The Act recognises that consistent with Australia's treaty obligations in matters of extradition, persons against whom extradition is sought have rights and protections under the same Act and the freedom to exercise those rights and contest extradition if they are so minded. A decision as to whether or not those rights are exercised must be free and informed. The evident public interest of the Act against the granting of bail does not outweigh the public interest in Mrs. Holt making a decision as to whether or not she will accept the offer of a plea on the terms and conditions laid down by the United States Department of Justice, or exercise the rights which she has under the Act, free from the pressure of her present and past incarceration and in the mental state which that has induced. That is sufficient in the present circumstances without canvassing the other grounds she relied upon.
I am satisfied that the conditions of bail which I propose to impose are sufficient to safeguard against her absconding, notwithstanding that she has few local ties in Queensland.
The male applicant is in a slightly different position from his wife. Although there is pressure upon him to accept the plea bargaining agreement to secure the release of his wife if she were independently minded to accept the plea, acceptance of the plea by him would not necessarily lead to no further custodial sentence. Nor is there evidence of any psychiatric disturbance on his part or that he is being held in maximum security conditions.
The strongest feature in favour of a finding of special circumstances in his case is the period of time he has spent in jail to date and the future period of time he would have to spend in jail until the hearing and determination of his appeal. To that must be added, having regard to the offer of an acceptance of a plea, my observations of the importance that any decision on his part to exercise his rights under the Act to continue his appeal or to accept a plea be free and informed and not the result of the pressure of incarceration.
The male applicant does not necessarily face the prospect of a reasonably expeditious termination of his incarceration. At best the offer is to place before the American court a submission that the time spent in prison in Australia ought to be taken into account. In my view, one would ordinarily expect that if he falls to be sentenced in the United States for reasons of fairness and justice, that would occur in any event. Further, once his wife is released on bail and her present incarceration ends, albeit for a limited period of time, that pressure to see her released is removed from the male applicant in terms of any decision he has to make as to whether he will continue to exercise his rights under the Act or accept the plea bargain offered by the United States Justice Department.
The state of the material does not enable me to find with any certainty that the proceedings in the United States will be stayed due to lack of due process, and so one cannot say with any certainty that there is a minimal risk of the male applicant absconding because he has an interest in returning to the United States to seek an order for permanent stay. At the highest, the possibility of a stay is a matter to which some weight must be given, but by itself and in combination with the other circumstances is not sufficient, in my view, to constitute special circumstances. If, as appeared to be possible at the time the application for bail was heard, the hearing and determination of the appeal could not occur this year because of the present commitments of the court, that delay would have been a matter to which I would have given great weight in determining whether or not there were special circumstances. However, arrangements having been made to re-schedule some matters before the court to permit a hearing of the applications for review of the Magistrate's decision to commence on 18 October, 1993, the question of past and future delay is not sufficient to constitute special circumstances.
There has been no argument as to the merits of the application for review so that the case is not one where it can be said the application will succeed for some demonstrable error on the part of the Magistrate. That the application is brought bona fide and clearly arguable is not sufficient.
Looking at the circumstances relied upon in the aggregate and individually, I am not satisfied that special circumstances have been made out.
Although I have considered the application of each of the applicants individually, the view to which I have come, namely that the female applicant ought to be released on bail, but that bail ought to be refused to the male applicant pending the hearing of the appeal, strengthens my view that the female applicant is less likely to abscond on her own and abandon her husband in prison.
The Court orders:
1. That CHRISTINE HOLT be admitted to bail on the following conditions:-
(1) The applicant enter into a recognisance in the sum of $100,000.00 in a form to be approved by the Director of Public Prosecutions with ROSS WINSTON TISCH and DESMA JOY KENMAN as sureties with an undertaking before a Justice of the Peace of $100,000.00 and subject to her:-
(a) Surrendering any current Australian, New Zealand or other passport presently in her possession to the Director of Public Prosecutions;
(b) Not applying for the issue to her of any Australian, New Zealand or other passport or other document of travel;
(c) Residing at 30 Edinburgh Drive, Bethania Waters or at such other address as may be approved in writing by the Director of Public Prosecutions, such approval to be obtained prior to the taking up of such residence;
(d) Not attending at any port of international departure;
(e) Not leaving the State of Queensland without the prior written approval of the Director of Public Prosecutions;
(f) Reporting once daily between the hours of 8.00 a.m. and 4.00 p.m. to the Officer-In-Charge, Australian Federal Police, Corner of Marie and Graham Streets, Milton, or as otherwise agreed in writing by the Director of Public Prosecutions;
(g) Prosecuting her appeal with all reasonable dispatch;
(h) Appearing personally at the hearing of the order to review at the date and time to be directed by the District Registrar and surrendering herself into the custody of the Court and abiding by any further order of the court as to custody.
(2) There be liberty to the Director of Public Prosecutions to apply for revocation of bail in the event of any material change of circumstances giving rise to a risk that the applicant will not appear on the order to review, including the execution of any plea agreement with the United States Department of Justice.
2. That the application of HENRY HOLT for bail be dismissed, reserving to him leave to re-apply for bail in the event of the hearing of his appeal not proceeding on 18 October, 1993 without default on his part.
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