Wiest, E.A v Director of Public Prosecutions

[1988] FCA 476

JLJDGMENT No. ..!kIhB&

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY 1

DIVISION GENERAL )

N.S.W. G1062 of 1988

BETWEEN: EUGEN ALEXANDER WIEST

Applicant

AND: THE DIRECTOR OF PUBLIC PROSECUTIONS

First Respondent

AND: RICHARD PETER MISZALSKI

Second Respondent

MINUTES OF ORDER

PINCUS ORDER: MAKIN JUDGE J.

1988 DATE OF ORDER: JULY 28

WHERE MADE:	SYDNEY
THE COURT ORDERS THAT:

1. the applicant be delivered forthwith to the Sherlff

of thls Court;

I ’

2. bail be refused;

3.     the costs be reserved.

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

/

IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY	1
GENERAL DIVISION	I

N.S.W. G1062 of 1988

BETWEEN: EUGEN ALEXANDER WIEST

Applicant

AND: THE DIRECTOR OF PUBLIC PROSECUTIONS

First Respondent

AND: RICHARD PETER MISZALSKI

Second Respondent

PINCUS J. - DATE: 28 JULY 1988

EX TEMPORE REASONS FOR JUDGMENT

In this matter I delivered judgment today: bail pending

appeal is sought.

On the contentions made by MC Coombs Q . C . on behalf of

his cllent, it seems to me that the foreshadowed appeal is by no
means frivolous. In Hempel v. Moore French J. dealt wlth a	-

similar situation and the case is reported in 70 A.L.R. 714. There the application for bail was considered by French J. at a similar stage: that is, a stipendiary magistrate had committed the appellants to prison, that had been reviewed by this Court before a single justice, unsuccessfully, and there was an appeal to the Full Court pending. The judgment of French J. discusses the question of bail in those circumstances and comes to a conclusion, expressed as follows, at p.722:

"In my opinion the policy of the Act as derived from

the legislative scheme requires that bail not be

granted after eview and pending appeal other than

in exceptional circumstances."

MC Coombs argues, in effect, that the circumstances here are exceptional. There is evidence before me, not from Mr Wiest but from a Mr Grant, a consultant to a well known Sydney firm, that Mr Wiest has had substantial business dealings in Sydney. There is also evidence from an officer of the police in the form of exhiblt 1, settlng out certain information obtalned by the pollce and It appears from that and from what MC Coombs has told me that MC Wiest is a man with substantial property.

It appears from the evldence before me in the principal proceeding, In which I have recently given judgment, that Mr Wiest left Germany during the currency of his trial; MC Coombs informed me, on instructions, that that occurred on a date whlch was, I think, after the 12th day of a 16-day trial. Mr Coombs' principal

point, it seems to me, is that the history of Mr Wiest's conduct,	insofar as these proceedings is concerned, has been satisfactory.
On the other hand, his opponent points to such facts as that Mr Wiest left durmg the German proceedings, allegedly to go on a skiing holiday.
The matter may be thought finely balanced but it seems to me that if I concur in what French J. says (and I do), bail
must be refused. The orders will be: that the applicant be
delivered forthwith to the Sheriff of t h i s Court and that bail be
refused. I w i l l reserve the quest ion of costs .

1 certify that this and the 2 preceding

Pages are a true copy of the reasons for judgment herein of His Honour

Mr. Justice Pincus A&&