McDade v United Kingdom

[1999] FCA 234

FEDERAL COURT OF AUSTRALIA

McDade v United Kingdom [1999] FCA 234

EXTRADITION- release of person pending review of decision ordering extradition- whether “special circumstances” to justify release

WORDS & PHRASES- “special circumstances”

Extradition Act (1988) (Cth) s 21(6)(f)(iv)

Zoeller v Federal Republic of Germany (1989) 90 ALR 161, discussed
Schoenmakers v the Director of Public Prosecutions (1991) 30 FCR 70, considered
Holt v Hogan (1993) 117 ALR 378, distinguished
Kainhoffer v the Director for Public Prosecutions (1993) 120 ALR 98, distinguished

STEPHEN GERARD McDADE v UNITED KINGDOM and PETER MALONE
W 13 of 1999

R D NICHOLSON J

15 FEBRUARY 1999

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 13 OF 1999

BETWEEN:

STEPHEN GERARD McDADE
Applicant

AND:

UNITED KINGDOM
First Respondent

PETER MALONE
Second Respondent

JUDGE:

R D NICHOLSON J

DATE OF ORDER:

15 FEBRUARY 1999

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The motion be refused.

2.Costs reserved for submissions.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 13 OF 1999

BETWEEN:

STEPHEN GERARD McDADE
Applicant

AND:

UNITED KINGDOM
First Respondent

PETER MALONE
Second Respondent

JUDGE:	R D NICHOLSON J
DATE:	15 FEBRUARY 1999
PLACE:	PERTH

EX TEMPORE REASONS FOR JUDGMENT

1. This is a notice of motion seeking the release of the applicant on bail on such terms and conditions as the Court thinks fit pending the hearing of his application for review of the decision of the second respondent. That application seeks an order of review in respect of an order of the second respondent made on 5 February 1999 pursuant to s 19(9) of the Extradition Act 1988 (Cth) (“the Act”) that the applicant is eligible for surrender to the United Kingdom in relation to charges numbered 2 to 19 inclusive; and further, that the applicant be committed to prison.

2. The application is brought in reliance upon s 21(6)(f)(iv) of the Act. That provides that where such an application for review has been made the Court may:

   “order the release on bail of the person on such terms and conditions as the court thinks fit.”

   However, that power is conditioned by the words:

   “if there are special circumstances justifying such a course.”

   The power of the Court in the event special circumstances are established to enliven its jurisdiction is to release on bail until the review has been conducted or the appeal heard.

3. The motion is supported by two affidavits.  The first is that of the applicant.  The circumstances which it discloses are as follows.

4. The applicant was first arrested by the Australian Federal Police on 9 June 1997.  He was released to bail on 26 June 1997.

5. In January 1989 he filed an application for migration to Australia.  It was approved in June 1990.  In July 1991, he arrived in Perth with his wife and two children, Glen and Neil, the latter then being aged 11 and the former being an infant.  He is therefore in Australia as a direct result of his application to migrate.  That application was made many months before any of the alleged offences leading to the order of which review is sought were said to be committed.

6. In 1992 the applicant purchased a home in which he and his family have since continued to live.  He was first interviewed in relation to the criminal offences as alleged in February 1993.  He heard nothing more until his arrest in June 1997.

7. The applicant testifies that he has always been available to the Australian Federal Police, the United Kingdom Police and the Western Australian Police and that he has made no attempt to abscond or evade the police at any stage.

8. The bail conditions imposed on him following his arrest are described by him as onerous.  He was required to report daily to the Warwick police station and enter into a bail undertaking of $100,000 with similar surety.  His evidence, which is not controverted, is that he complied at all times with his bail conditions.  His passport had been surrendered to the Australian Federal Police.  He is prepared, if now released on bail, to enter into the same conditions and any additional conditions which the court may see fit to impose.

9. As well as the matters of which the applicant seeks review, he is engaged in proceedings with the Department of Immigration and Multicultural Affairs (“the Department”).  His visa was cancelled by the Department in 1997.  He had first received notice of intention to cancel it in September 1994.  He sought review of the Department's decision by the Immigration Review Tribunal (“the Tribunal”).  The hearing was conducted in April 1998.  On 9 October 1998 the Tribunal handed down a decision affirming the decision of the Department.  The applicant appealed that decision to this Court.  On 16 December 1998 French J ordered by consent that the matter be remitted to the Tribunal for reconsideration.  The matter is listed for re‑hearing in the first week of March 1999.  The applicant has retained the services of Australian Visa and Immigration Service  (“the Service”) to represent him at the hearing.

10. The applicant's further evidence is that his resident status affects not only him but his whole family.  His wife and two sons have made their lives here and intend Australia to be their permanent residence, as does he.

11. The applicant testifies that he and his family will suffer prejudice if he is not present at the re-hearing before the Tribunal.  He states that the matters before the Tribunal are very complex and he will need to provide constant instructions to the Service.  His belief is that if in custody prior to the hearing, he will not be able to adequately instruct them.

12. Additionally, the applicant testifies that he has very strong family connections in Perth.  His mother, brother and two sisters all live in Perth.  They all own real estate in Western Australia, as does he and his wife.  His mother is aged 78 years and has a number of significant health problems.

13. The applicant has no previous convictions in Australia or in the United Kingdom.

14. The affidavit of the applicant also brings evidence that prior to being taken into custody the applicant was the primary carer of the son Glenn, now aged 9 years old.  This involved getting Glenn ready for school in the mornings and being there to meet him in the afternoon.  Glenn had come to depend upon him for that attention.  It had come about that the applicant assumed the role of primary carer because his wife works long hours, normally leaving home at 8.20 am and returning after 6 pm on most nights.  On Wednesday nights she works until after 9 pm and may not get home until after 10 p.m.  She also works on Saturdays until 1 pm.  As such, she is not able to be there for Glenn when he gets home from school.  Alternative arrangements have had to be made while the applicant has been in custody.

15. The other son, Neil, is unable to assist in this regard because he works full‑time on boats and leaves at 5 am most mornings and does not get home until 6.30 pm.

16. The applicant's evidence is that he and his wife have not told Glenn where he (the applicant) is, because when the applicant was last in custody Glenn “found it very difficult”.

17. The further affidavit is that of Mrs McDade, the applicant's spouse.  She testifies as to her work commitments and corroborates the applicant's evidence concerning his care of Glenn.  She recounts the alternative arrangements which have had to have been made to enable Glenn to be cared for.  She affirms that if her husband were released on bail, he would again be able to take over the role of primary carer for Glenn.

18. The concept of "special circumstances" as it appears in s 21(6)(f)(iv) of the Act was introduced by the Extradition Amendment Act (1990) (Cth), s 6.

19. The concept of special circumstances has been considered in three decisions at first instance.  Section 21 in its prior form included no reference to the need to establish special circumstances.  It was considered by Mason CJ in the High Court of Australia in Zoeller v Federal Republic of Germany (1989) 90 ALR 161. There his Honour the Chief Justice said that:

    “It can scarcely be supposed that the jurisdiction is enlivened by something less than exceptional circumstances.”

    He went on to consider that the applicant there had a record of punctilious compliance with the conditions of bail, that he was married to an Australian, had been living here since 1984, had a permanent home here, had strong local community ties and his wife had given an undertaking to pay $100,000 by way of surety.  There was substantial time which that applicant had spent in custody.  Mason CJ concluded that these factors, even when taken together, did not constitute special circumstances which would enliven the court's jurisdiction to grant bail.  It seems that his Honour had equated "special circumstances" with "exceptional circumstances" to which he had earlier made reference.

20. Following the amendment by Parliament to the section to introduce the reference to the words "if there are special circumstances justifying such a course", the matter was first considered by French J in Schoenmakers v the Director of Public Prosecutions (1991) 30 FCR 70. There his Honour considered that those words required reference both to the general purpose of the provision and to the broader community standards. Under the first limb he took account of the fact that according to the explanatory memorandum relating to the 1987 Bill and the equivalent provisions in s 15, the purpose of reference to "special circumstances" was to reduce what was perceived as the very high risk of persons sought for extraditable offences absconding. Under the second limb he had regard to the length of incarceration of the applicant in that case without any conviction or trial and requirements of the common law and other international law in relation to that fact.

21. Next, in Holt v Hogan (1993) 117 ALR 378, Cooper J reviewed the authorities to which I have referred and others. The approach which he considered appropriate was that the Court must bear in mind the concern of the legislature in providing that special circumstances be established before bail is considered; namely, the focus of the concern on the very high risk of absconding. Against these matters the Court is required to identify and weigh the particular circumstances of the applicant for bail, keeping in mind broad community standards, including a predisposition against unnecessary or arbitrary detention in custody. All personal circumstances are thus taken into consideration. He said:

    “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 ordinary bail is not to be granted.”

    He regarded that as the same approach taken at common law where "special" or "exceptional" circumstances must be demonstrated.  He concluded by saying that if special circumstances are identified the next question was whether, as a matter of discretion, bail ought to be granted. 

22. In Holt, Cooper J had evidence of an adjustment disorder on the part of the female applicant and evidence that her condition may worsen from continued incarceration.  In the case of the male applicant the strongest feature found to be in favour of special circumstances in his case was the period of time he had spent in gaol and the future period of time he would have to spend in gaol.  There, as here, there had been no argument as to the merits of the application for review so that the case was not one where he found he could say that the application would succeed for some demonstrable error on the part of the Magistrate.  Cooper J was not satisfied that special circumstances had been made out in the case of the male applicant but allowed the motion in respect of the female applicant.

23. In Kainhoffer v the Director for Public Prosecutions (1993) 120 ALR 98 Spender J considered that the conditions in s 21(6)(f)(iv) of the Act were onerous. He stated that it was wrong to segment the process unnecessarily - the process, that is, of applying the paragraph - by requiring a precise identification of what is a special circumstance and distinguished that circumstance from circumstances which are not special. There the appellant seeking the bail application and the establishment of special circumstances was the parent having the primary parental responsibility for the caring of a nine‑year‑old daughter. It was found as a fact that the incarceration of the mother had had a serious and adverse effect on the child, which was an added circumstance affecting the mother. As far as the condition of the child was concerned, there was evidence of a medical character before the Court directed to the possibility of significant psychiatric difficulties.

24. Spender J said that the record of punctilious compliance with the conditions of bail would not ordinarily constitute special circumstances, nor would the fact that the applicant has lived in Australia for some time and has family here or that she had a permanent home here.  However, he concluded that looking at the totality of circumstances, including the medical evidence to which I have just referred, it is clear that it was a case where special circumstances had been made out.

25. The circumstances on which the applicant here relies are the following in particular: (1)  the applicant is a person in relation to whom there is a very low risk of flight; (2)  the applicant is the primary carer for his son Glenn; (3)  the absence of the applicant from that role may have some impact on Glenn and the Court should act to minimise the risk of that; (4)  the applicant has at all times complied with previous bail conditions; (5)  the applicant has a strong connection with Western Australia, both through family and property, (6)  the applicant came to Australia as a result of an application to migrate and not to avoid justice in the country in which he was previously located; (7)  the applicant has to ensure that the review of his decision before the Immigration Review Tribunal is effective.

26. In relation to the impact on Glenn, it is apparent from the evidence to which I have referred that there is no medical evidence of the character referred to in Kainhoffer or Holt.  There is some basic commonsense in a court acting to prevent deterioration in positions but, unfortunately, courts act on evidence and not a conjecture as to future circumstances.  All that can be said is that there is no evidence of that character present here.

27. Likewise, in relation to the evidence concerning the conduct of the proceedings before the Tribunal, there is no evidence beyond the applicant's assertion that he would in fact be hampered in the presentation of his case before the Tribunal if he were not granted bail.  Furthermore, there is no evidence that in fact he would not be able to be taken while in remand to attend the hearing, although he certainly assumes that not to be the case.

28. Looking at the evidence as a whole and bearing in mind the dicta of Cooper and Spender JJ in the authorities to which I have referred where they have referred to circumstances in a similar vein, it does not seem to me that there is anything in the whole of the range of circumstances which enables it to establish and meet the high onus established by Parliament of establishing special circumstances.  All of the factors which the applicant is reliant upon are factors which, with the exception of the primary care, are regarded in those other decisions as not having the character of being special.  Here, the possibility of absence of primary care is, without any additional medical evidence, not of the requisite weight.

29. I am therefore of the opinion that the standard set by Parliament is not met by the case brought by the applicant. That means that I must conclude that the jurisdictional precondition which has been set in s 21(6)(f)(iv) has not been met. It follows that I would not therefore have the authority to proceed to consider the release on bail.

30. For those reasons, I consider that the motion must be refused.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson.

Associate:

Dated:             15 March 1999

Counsel for the Applicant:	Mr D J Miller
Solicitor for the Applicant:	Marks Healy Hands
Counsel for the First Respondent:	Mr P M Usher
Solicitor for the First Respondent:	Commonwealth Director of Public Prosecutions
Date of Hearing:	15 February 1999
Date of Judgment:	15 February 1999