| IN THE FEDERAL COURT OF AUSTRALIA | ) |
| NEW SOUTH WALES DISTRICT REGISTRY | |
| 1 |
| GENERAL DIVISION | 1 |
| BETWEEN: | EUGEN ALEXANDER WIEST |
Appellant
| AND : | DIRECTOR OF PUBLIC
PROSECUTIONS and ANOR. |
Respondents
CORAM: MORLING, BURCHETT AND GUMMOW JJ.
DATE: 16 AUGUST 1988
ORAL REASONS FOR DECISION
THE COURT : As framed, this is a notice of motion that the applicant be granted bail pending the hearing of his appeal against the decision of Pincus J given on 28 July 1988. On
| that date the learned judge refused to | make an order that the |
| appellant be granted bail pending the | determination of his |
appeal against the learned judge's decision.
| interlocutory nature. Accordingly leave to appeal is required. |
It was conceded by senior counsel for the appellant
that his client needed the leave of this Court to appeal
against Pincus J ' s decision. In my view that concession was
| well founded. It is | plain | that | the | decision was | of | an |
In the substantive application which came before
Pincus J the appellant sought an order of review in respect of a decision of a magistrate under the Extradition (Foreign
| States) Act 1966. | The learned magistrate had made an order |
| that a warrant should issue committing the | appellant to prison |
| to await the warrant of | the | Attorney-General | for | the |
| appellant's surrender to the Republic of Germany. | On 28 July |
| Pincus J ordered that the | decision of the magistrate be |
confirmed and that the application made to him under the Administrative Decisions (Judicial Review) Act be dismissed.
| An appeal against the learned judge's | decision has |
been lodged and we understand it will be heard in about one
month's time.
| In written submissions on behalf of the respondent, it is contended that this Court has no power | to admit the |
| appellant to bail pending the hearing of his appeal. | We do |
| c. | not find it necessary to rule upon the submission. The submission raises a point of substance and importance, but since we are of the opinion that we can dispose of the |
| application without determining the point, we do not propose to | |
| do so. | If we were to decide the point we would necessarily | |
| have to reserve our decision. | In the circumstances of the | |
| present case, that would be | unsatisfactory. | |
| There was evidence'before Pincus J that, if admitted to bail, the appellant would probably answer to it | when called | |
| upon. | On the other hand there | were a number of circumstances | |
| which had | to | be | taken | into | account | in determining the | |
application. Those circumstances led to the result that, in his Honour's words, "The matter was finely balanced" before him.
Pincus J was of the view that he should follow a
dictum of French J in Hempel v Moore (1986) 70 A.L.R. 714 at
p.722 to the effect that it is the policy of the Act that |
| M | exceptional circumstances need to be shown before bail is
granted in a case such as the present. |
| We think the question whether exceptional circum- stances must be shown in a case | such as the present to warrant | |
| the grant of bail is a question of importance. | we would | |
| be minded to grant leave to appeal but for the | matter which we | |
| shall now mention. | We are of the | view that if leave to appeal | |
were granted the appeal would not succeed. Assuming it is unnecessary for the appellant to show special circumstances,
| G . ' | the facts of the present case are not such as should have led Pincus J, or would lead us, to admit the appellant to bail pending the hearing of his appeal. |
| The appellant has been convicted in West Germany of the offence in respect of which the extradition proceedings have been taken. The fact that he is a man of considerable wealth cuts both ways. On the one hand, as Mr Coombs of Queen's Counsel has argued, 'it is a circumstance that tells in favour of him being likely to answer bail especially as he is | |
| prepared to lodge cash security to ensure that he | answers bail. | |
On the other hand, the possession of substantial wealth could be a circumstance which could incline the appellant not to
| answer bail but to seek | asylum elsewhere. |
We cannot disregard the fact that, at this stage of
| the proceedings, a magistrate and a judge | of this court have |
| concluded that the appellant is liable to be | extradited to West |
| Germany. | It is true that the analogy with the case of a |
| t | person convicted of a | crime is not perfect or | complete, but |
nevertheless we are of the opinion that there is a broad analogy between the position of a person in the appellant's position and the position of a person convicted of a crime.
Another circumstance which is of considerable
| importance in the present case is that the | final order made by |
| Pincus J was made nearly three'weeks ago and the | appeal on that |
| decision will be heard in | about a month's time. It may be that |
if the appellant had been facing the prospect of many months
| -L without his liberty pending the | hearing of his appeal, we might |
have taken a different view of that matter.
| Another circumstance, and one to which his Honour |
referred, was the fact that'the appellant left Germany during the course of his trial. . There is evidence from the appellant's solicitor giving an account of the appellant's
| explanation f o r his leaving his native country. | The |
| explanation is a little | unusual, and would have | been more |
| compelling, had | it | been | supported by evidence from the |
| - | appellantfs West German attorney or lawyer. |
J’
5.
| All the circumstances of the case lead | us to the view |
| that if we were to grant leave to appeal in | this case, the |
| leave would be of | no utility to the appellant because his |
| appeal would not succeed. We | think that the | appropriate |
course is to dismiss the application for leave to appeal.
The costs of this application are reserved, to be
dealt with by the court which hears the appeal.
| I certify that this and the four | ( 4 ) preceding |
| pages are a true | copy of the Reasons for |
Judgment of the Court.
Associate:
| Counsel for amlicant: | J.S. Coombs Q.C. with
B. Walker |
| instructed by: | Sly & Russell |
| Counsel for respondent: | N. Williams |
| instructed by: | Director of Public
Prosecutions |
| Date of Heariq: | 16 August 1988 |
| Date of Judgment: | 16 August 1988 |