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
Details
AGLC
Wiest v Director of Public Prosecutions [1988] FCA 872
Case
[1988] FCA 872
Decision Date
CaseChat Overview and Summary
The Federal Court of Australia, comprising Morling, Burchett, and Gummow JJ, presided over the case of Wiest v Director of Public Prosecutions. The appellant, Eugen Alexander Wiest, sought bail pending the hearing of his appeal against the decision of Pincus J, who had previously refused to grant bail. The respondents were the Director of Public Prosecutions and another party. The court needed to determine if the appellant should be granted leave to appeal and, if so, whether bail should be granted pending the appeal hearing.
The primary legal issue before the court was whether it had the authority to grant the appellant bail pending the appeal hearing. Additionally, the court needed to consider if the appellant's appeal had a reasonable prospect of success. The respondents argued that the court lacked the power to admit the appellant to bail. The court acknowledged the significance of this argument but determined that it did not need to rule on it since the application could be resolved without addressing the point.
The court considered several factors in its decision. Firstly, the appellant had been convicted in West Germany for the offence related to the extradition proceedings. While his considerable wealth could potentially ensure compliance with bail conditions, it could also motivate him to seek asylum elsewhere. Secondly, the final order by Pincus J was made nearly three weeks prior, and the appeal was scheduled in about a month. Lastly, the appellant's departure from Germany during his trial added to the complexity of the case. Given these factors, the court concluded that granting leave to appeal would likely be futile as the appeal would not succeed.
The court dismissed the application for leave to appeal and determined that the appeal would not succeed. The costs of the application were reserved to be addressed by the court that would hear the appeal.