Schoenmakers v Director of Public Prosecutions

[1991] FCA 337

Re: NEVIL MARTIN SCHOENMAKERS
And: DIRECTOR OF PUBLIC PROSECUTIONS
No. WA G53 of 1991
FED No. 337
Extradition
30 FCR 70

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Extradition - bail - application for bail pending hearing of appeal to Full Federal Court - "special circumstances" - nature of criteria - legislative policy - appellant's particular connection with Australia - length of time in custody - order made subject to conditions.

Magna Charta Article 39

International Covenant on Civil and Political Rights Article 9

Extradition Act 1988 s.12, s.15, sub-s.21(6)

Extradition Amendment Act 1990

R. v Phillips (1922) 38 TLR 897

Re Gifford (1930) 1 DLR 800

Hempel v Moore (1987) 70 ALR 714

Zoeller v Federal Republic of Germany (1989) 90 ALR 161

HEARING

PERTH

#DATE 21:6:1991

Counsel for the Applicant: Mr C.M. Ellison

Solicitors for the Applicant: Williams Ellison

Counsel for the Respondent: Mr J.A. Scholz

Solicitors for the Respondent: Director of Public Prosecutions

JUDGE1

Nevil Martin Schoenmakers was born in Western Australia in 1958. In or about 1977 he travelled to Holland where he lived until his return to Australia on 29 May 1990. On 23 July 1990, he was arrested on a provisional warrant issued under s.12 of the Extradition Act 1988 pursuant to a request from the Government of the United States to the Attorney-General of the Commonwealth. Schoenmakers submitted voluntarily to the arrest, attending at the office of the Australian Federal Police for the purpose. He has been in custody since that time. On 26 July 1990 he applied to a stipendiary magistrate to be released on bail, but his application was refused. A hearing to determine whether he was eligible for surrender to the United States was conducted before a stipendiary magistrate on 5 November 1990 and on 27 November he was found to be so eligible. On the same day the learned magistrate issued a warrant ordering that he be committed to the C.W. Campbell Remand Centre to await surrender under a warrant or release pursuant to an order under s.22(5) of the Act. The extradition offences in respect of which the warrant was issued were:

(i) conducting a Continuing Criminal Enterprise contrary to Title 21 United States Code, Section 248;

(ii) conspiracy to manufacture (grow) marijuana contrary to Title 21 United States Code, Sections 841(a)(1) and 846;

(iii) distributing marijuana contrary to Title 21 United States Code, Section 841(a)(1) and Title 18 United States Code, Section 2; and

(iv) using the mail to distribute marijuana contrary to Title 21 United States Code Sections 841(a)(1) and 843(b) and Title 18 United States Code, Section 2.

There were in all some 44 counts under those four offence descriptions.

1. Mr Schoenmakers applied to the Supreme Court under s.21 of the Extradition Act 1988 for a review of the magistrate's order. That review application was heard on 13 May 1991 before Walsh J. On 22 May 1991 his Honour made an order confirming the learned magistrate's order with respect to all counts except conspiracy. On 4 June 1991 an appeal against that judgment was instituted in this Court. It is to be heard by a Full Court on or about 1 August 1991. By a motion filed in this Court on 14 June 1991 and heard on 20 June, Mr Schoenmakers seeks an order under s.21(6)(f)(iv) of the Act that he be released on bail pending the determination of his appeal.
   Factual Background

2. In his affidavit in support of the motion, Mr Schoenmakers told the Court that he had lived in Holland since he went there at about age 19. He has both Australian and Dutch citizenship and travels on the Dutch passport. He says his return to Perth in May 1990 was purely for "business and personal reasons". While in Holland he established a business as a seed merchant and it is alleged that his activities in that business included the distribution of cannabis seeds to the United States of America. He says that his activities in Holland were lawful and based upon legal advice obtained both in that country and in the United States. There was evidence before the magistrate, set out in the judgment of Walsh J., that he had carried on his business under the title Seed Bank and that a number of persons acted for him and under his direction in selling marijuana seeds to growers in the United States. One of these was an expert in horticulture, who was in charge of production. Another, a man called Cogo, is said to have acted as his distribution agent in the United States. Cogo in his affidavit which was before the magistrate, said he had made a number of visits to Holland and to the Seed Bank and in January 1988 was asked by Schoenmakers to distribute seeds for him. He said he was to be paid $10 for every seed order that he made. Shortly after he had agreed to act as distribution agent, he travelled to JFK Airport in New York and acting on Schoenmakers' instructions received "a large quantity of marijuana seeds, shipping orders and related records from two males, one of whom had supposedly been handling the Seed Bank's business in the past". Subsequently Schoenmakers, he said, would cause Seed Bank to ship marijuana seeds to him in bulk in sealed soup cans packaged with food items. The soup cans contained lead inserts and were packed in such a way that their contents could not shift or move about during shipment. The weight of the cans was the same as that shown on their labels.

3. Schoenmakers' testimony as set out in his affidavit in support of the bail motion, was not challenged by cross-examination nor was evidence tendered to contradict it. He made the following points in support of his motion:
   

1. He has a de facto wife residing in Western Australia and a child by her who was born on 15 June 1990.

2. He is a citizen of both Holland and Australia and has travelled frequently between both countries. His parents, 3 brothers, 2 sisters and an uncle live in this State.

3. He voluntarily attended upon the Australian Federal Police when he became aware that they wanted to see him in July 1990.

4. While in prison he had had to sell both his business and properties in Holland and has suffered great financial loss.

5. He has now been in custody for about 11 months.

6. His previous travel movements have been largely between Holland and Australia. He has never fled the United States. He has no record in Holland and has not committed any offences in Australia since 1974.

Evidence was tendered by his own counsel of Schoenmakers' prior criminal record which included convictions in 1974 and 1975 relating to the use, cultivation and sale or supply of cannabis and a conviction in 1988 for the sale or supply of cannabis which had evidently taken place before he left Australia. None of these convictions attracted gaol terms. Schoenmakers offered a number of bail conditions with which he was prepared to comply. He said he would be prepared to:

1. Report daily to police.

2. Reside with his de facto wife and their son.

3. Surrender his passport.

4. Provide a surety in a substantial sum.

It was also suggested by counsel that he might be a suitable candidate for the home detention scheme recently established in Western Australia. The submissions on this point were not particularly illuminating as they did not disclose any basis upon which the Court could direct the relevant State authorities to apply the scheme to Schoenmakers. Reference was also made to detailed sentencing guidelines applicable to Federal District Courts in the United States of America. They were referred to to demonstrate that Mr Schoenmakers could receive a prison term in the United States, if convicted, comparable with the period he has already spent in custody in Western Australia. These figures however, were of little assistance as their statutory basis was not proven and in any event they did not address the most serious of the charges which relates to carrying on a criminal enterprise and can, according to his counsel, attract a penalty in the range of 20 years to life imprisonment.

1. Against that general factual background it is necessary to turn to the statutory framework and the conditions under which bail may be granted.
   Statutory Framework

2. A person arrested under a provisional warrant is required by s.15(1) of the Act to be brought before a magistrate and shall be remanded in custody "or subject to sub-section (6) on bail". sub-section 15(6) provides that:
   

"A magistrate shall not remand a person on bail under this section unless there are special circumstances justifying such remand."

Section 21 provides for review of a magistrate's orders by the Federal Court or the Supreme Court and appeals to the Full Court of the Federal Court from any order made on such review. Sub-section 21(6) provides for the granting of bail to persons applying for review or appealing against a decision made on review. As originally enacted the relevant parts read as follows:

"(6) Where the person or the extradition country:

(a) applies under subsection (1) for a review of an order;

(b) appeals under subsection (3) against an order made on that review; or

(c) appeals to the High Court against an order made on that appeal;

the following provisions have effect:

(d) the court to which the application or appeal is made shall have regard only to the material that was before the magistrate;

(e) if, because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has been released - the court to which the application or appeal is made may order the arrest of the person;

(f) if:

(i) because of the order referred to in paragraph (a), (b) or

(c), as the case requires, the person has not been released; or

(ii) the person has been arrested under an order made under paragraph (e); the court to which the application or appeal is made may:

(iii) order that the person be kept in such custody as the court directs; or

(iv) order the release on bail of the person on such terms and conditions as the court thinks fit;

until the review has been conducted or the appeal has been heard."

Paragraph (g) is not relevant for present purposes.

1. As originally enacted therefore, s.21 set a lower threshold for the granting of bail once the review process was initiated than before the magistrate. In 1990 the Act was amended by the Extradition Amendment Act 1990 which substituted for the word "order" in s.21(6)(f)(iv) the words "if there are special circumstances justifying such a course, order". Thus the court to which an application for review or appeal is made may, 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. The explanatory memorandum which accompanied the Extradition Bill 1987 explained the "special circumstance" requirement in sub-cl.15(6) thus:
   

"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, i.e. the person left the jurisdiction to avoid justice."

No such explanation was forthcoming in either the explanatory memorandum or the second reading speech relating to the 1990 amending Act. Presumably, however, the underlying policy is the same.

Whether there are Special Circumstances to Justify Release on Bail

1. 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.

2. 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. It can be said immediately that there is n o evidence that that is the case here. Indeed by coming to Australia Mr Schoenmakers seems to have exposed himself to a risk of extradition which he did not face in Holland. His reasons for coming to this country are explicable by reference to the fact that he was born here, has been a frequent visitor since he went to live in Holland and has substantial family connections in Western Australia. Having regard to the policy of the legislation there is, in my opinion, a special circumstance attaching to his presence in this country which puts it in a different class from that of the fugitive offender contemplated by the legislation.

3. The other circumstance to which I have particular regard in this case arises by reference to what I have called "broad community standards". Mr Schoenmakers has been in prison since July 1990. He has not been convicted or tried for any offence. The first four months of his incarceration were spent awaiting the primary hearing before the stipendiary magistrate. The next six months were spent awaiting the hearing of his review application in the Supreme Court. Between the time of the judgment on that review application and the hearing of his appeal in the Full Federal Court at the beginning of August, more than two months further will have elapsed.

4. 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 judgement 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 or 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 1988, 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.

1. 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 - R. v Phillips (1922) 38 TLR 897; Re Gifford (1930) 1 DLR 800 at 802; Hempel v Moore (1987) 70 ALR 714 at 722. This restrictive approach has been applied in Australian cases - Hempel v Moore (supra) and Zoeller v Federal Republic of Germany (1989) 90 ALR 161. But each case turns on its own facts.

2. In my opinion there are two special circumstances in this case which justify the release of the appellant on bail pending the hearing and determination of the appeal. The first of these relates to his particular connection with Australia and the fact that there is no evidence to suggest that he is here as a fugitive. The second relates to the length of time that will have been spent by him in prison without trial if he is not released pending the appeal. Having regard to the special circumstances and the general terms of the proposed conditions, I am satisfied that an order should be made. I will require as conditions of the order that:
   

1. The appellant surrenders his passport to the Australian Federal Police.

2. The appellant reside at the home of his de facto wife and child and that he remain at all times within the metropolitan area of Perth.

3. The appellant report twice daily between the hours of 8am and 9am and 5pm and 6pm to the Australian Federal Police or such other officers of Police as they may designate.

4. The appellant enter into a recognisance with a surety to be approved by the Australian Federal Police in the amount of $100,000.

1. I will allow the parties time to formulate a minute of the precise terms of an order in which the proposed conditions may be more precisely defined.