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…