Zentai v Honourable Brendan O'Connor

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FEDERAL COURT OF AUSTRALIA

Zentai v Honourable Brendan O’Connor [2009] FCA 1597

EXTRADITION - application for bail pending determination of application for review - whether there exist special or exceptional circumstances

JURISDICTION – incidental power pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) of the Court to grant bail on judicial review application under s 39B of the Judiciary Act 1903 (Cth) rather than under the Extradition Act 1988 (Cth)

Extradition Act 1988 (Cth) s 19(9), 23
Federal Court of Australia Act 1976 (Cth) ss 19, 21, 23
Judiciary Act 1903 (Cth) ss s 39B(1), 39(1A)

Federal Court Rules O 4 r 9

Chan v Minister for Justice & Customs (2001) 108 FCR 65
Lim v Gregson [1989] WAR 1
Mercanti v Western Australia [2005] WASC 254
Peniche v Vanstone (1999) 96 FCR 38
United Mexican States v Cabal (2001) 209 CLR 165
Zentai v Republic of Hungary [2008] FCA 1335
Zentai v Republic of Hungary (2009) 260 ALR 400
Zentai v Republic of Hungary [2009] FCA 284
Zentai v Republic of Hungary [2009] FCA 511

CHARLES ZENTAI v THE HONOURABLE BRENDAN O'CONNOR, COMMONWEALTH MINISTER FOR HOME AFFAIRS, COMMONWEALTH ATTORNEY-GENERAL, BARBARA LANE and THE WESTERN AUSTRALIAN OFFICER IN CHARGE, HAKEA PRISON

WAD 220 of 2009

MCKERRACHER J
24 DECEMBER 2009
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 220 of 2009
BETWEEN:

CHARLES ZENTAI
Applicant
AND:

THE HONOURABLE BRENDAN O'CONNOR, COMMONWEALTH MINISTER FOR HOME AFFAIRS
Respondent

COMMONWEALTH ATTORNEY-GENERAL
Second Respondent

BARBARA LANE
Third Respondent

THE WESTERN AUSTRALIAN OFFICER IN CHARGE, HAKEA PRISON
Fourth Respondent

JUDGE:

MCKERRACHER J

DATE OF ORDER:

16 DECEMBER 2009

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

Pursuant to section 23 of the Federal Court of Australia Act 1976 and Order 4 Rule 9 of the Federal Court Rules that both

1.the warrant issued by the Third Respondent, a Magistrate of the State of Western Australia dated 20 August 2008 pursuant to section 19(9) of the Extradition Act 1988 (Act), committing the Applicant to imprisonment in Hakea Prison, Canning Vale, Western Australia; and

2.the surrender warrant issued by the First Respondent under section 23 of the Act on 12 November 2009 authorising the Officer in Charge of Hakea Prison (Fourth Respondent) to release the Applicant into the custody of officers of the Republic of Hungary,

be stayed until further order of the Court and that the Applicant after complying with the conditions set out in Schedule 1 to this Order, be released on bail with a duty to surrender to the Federal Court of Australia upon the order of the Federal Court of Australia on a date and time to be notified to the Applicant by an officer of the Federal Court of Australia.

Schedule 1

Pursuant to section 23 of the Federal Court of Australia Act 1976 and Order 4 Rule 9 of the Federal Court Rules the Applicant be released on bail on the following terms and conditions:

a.$50,000.00 personal undertaking;

b.$75,000.00 surety;

c.Surrender…

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Details
Case
[2009] FCA 1597
Decision Date

CaseChat Overview and Summary

The case of Zentai v Honourable Brendan O'Connor involves Mr Charles Zentai, who sought bail in the Federal Court of Australia. Mr Zentai had been subject to extradition proceedings to Hungary, and he was granted bail on several occasions under the Extradition Act 1988. The current proceedings were brought on a different jurisdictional basis compared to previous ones. The dispute centred around Mr Zentai's application for bail, which was granted on various terms and conditions, including a personal undertaking, a surety, and restrictions on his travel and residence.

The legal issues the court needed to decide were whether there was a serious question to be tried in the extradition proceedings and if there were any exceptional circumstances justifying the granting of bail. The court had to balance the importance of Australia's treaty obligations with the applicant's right to freedom and the potential impact of his continued incarceration on his health. Additionally, the court needed to consider the implications of the applicant's age and medical condition on the decision.

The court concluded that there was a serious question to be tried in the extradition proceedings and that the case was exceptional due to the applicant's age and medical condition. The court found that these factors, along with the potential exacerbation of his health issues if he remained incarcerated, constituted special circumstances warranting the granting of bail. Furthermore, the court noted that the applicant's bail was not opposed, which was a significant factor given Australia's treaty obligations.

Accordingly, the court made orders staying the warrant issued by the Magistrate of the State of Western Australia and the surrender warrant issued by the First Respondent. The court granted Mr Zentai bail on the specified terms and conditions, including a personal undertaking, a surety, surrender of all passports, travel restrictions, and a specified residence address. The applicant was to be released on bail with a duty to surrender to the Federal Court of Australia upon the court's order.

Orders

Orders of the court

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Background

Background to the litigation

On 16 December 2009, bail was granted to Mr Zentai on similar terms and conditions to those imposed on previous occasions in relation to his challenges to extradition. In doing so, I indicated that I would publish reasons. These are the reasons. BACKGROUND Although the background has been traced in previous judgments, it is convenient to update the current position as these proceedings are brought on a different jurisdictional basis from those preceding them. On 20 August 2008, Magistrate Barbara Lane, in the Magistrates Court of Western Australia, Perth determined that Mr Zentai was eligible for extradition to Hungary under s 19(1) of the Extradition Act and further issued a warrant under s 19(9) of the Extradition Act ordering committal of Mr Zentai to prison to await surrender. Later on the same day, on 20 August 2008, Mr Zentai made an application to the Court under ss 21(2)(b) and 21(2)(b)(i) of the Extradition Act for an order to quash the order of Magistrate Lane made on 20 August 2008, by which Mr Zentai was found eligible for surrender for extradition to the Republic of Hungary. In addition, on 20 August 2008, Mr Zentai made an application for an order that he be released on bail pursuant to s 21(6)(f)(iv) of the Extradition Act. On 20 August 2008, I granted Mr Zentai bail on the following terms:The applicant Charles Zentai, after complying with the conditions set out in Schedule 1 to this order, be released on bail with a duty to surrender to the Federal Court of Australia upon the order of the Federal Court of Australia on a date and time to be notified to the applicant by an officer of the Federal Court of Australia. Schedule 1Pursuant to section 21(6)(f)(iv) of the Extradition Act 1988, the Applicant be released on bail on the following terms and conditions: a.$50,000.00 personal undertaking;b.$75,000.00 surety;c.Surrender all passports and not apply for any passports;d.Not to approach within 100 metres of any point of domestic or international departure and not to leave Australia; ande.Reside at 2/10 Millar Place, Willetton WA. From 20 August 2008 until 31 March 2009, Mr Zentai was released on bail pursuant to my orders of 20 August 2008. On 31 March 2009, Gilmour J dismissed Mr Zentai’s application to quash the Magistrate’s decision (Zentai v Republic of Hungary [2009] FCA 284). His Honour further ordered a stay of the orders, resulting from his judgment of 31 March 2009, until 7 April 2009. On 6 April 2009, Mr Zentai lodged an appeal from the whole of the judgment of Gilmour J given on 31 March 2009. The appeal was brought pursuant to the provisions of s 21(3) of the Extradition Act. On 7 April 2009, his Honour ordered a further stay of his orders until 11 May 2009. On 7 May 2009, the orders of 31 March 2009 were further stayed until 4.00 pm on 12 May 2009. On 12 May 2009, Gilmour J granted bail to Mr Zentai (Zentai v Republic of Hungary [2009] FCA 511) in the following terms:1.Charles Zentai (“the Appellant”) after complying with the conditions set out in Schedule 1 to this Order, be released on bail with a duty to surrender to the Federal Court of Australia upon the order of the Federal Court of Australia on a date and time to be notified to the Appellant by an officer of the Federal Court of Australia.2.The Appellant’s passport, currently in the possession of the Magistrates Court of Western Australia, be transferred to the custody of the Australian Federal Police.Schedule 1Pursuant to s 21(6)(f)(iv) of the Extradition Act 1988, the Appellant be released on bail on the following terms and conditions:a.$50,000.00 personal undertaking;b.$75,000.00 surety;c.Surrender all passports and not apply for any passports;d.Not to approach within 100 metres of any point of the domestic or international departure and not to leave Australia; ande.Reside at 2/10 Millar Place, Willetton, WA.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MCKERRACHER J
Finally, if bail is not granted, Mr Zentai, who is 88 years of age, would be likely to remain in prison for some considerable time. That is a further ‘special circumstance’, together with his deteriorating medical condition, which his continued incarceration is likely to exacerbate.CONCLUSION In my view, there is a serious question to be tried. Equally, for reasons indicated above, I am satisfied that this is an exceptional case and that bail should be granted. I note also that bail is not opposed. This is also significant, given the importance of Australia’s treaty obligations, a factor which most certainly would not have escaped the first and second respondents. Accordingly, the following orders will be made:Pursuant to section 23 of the Federal Court of Australia Act 1976 and Order 4 Rule 9 of the Federal Court Rules that both1.the warrant issued by the Third Respondent, a Magistrate of the State of Western Australia dated 20 August 2008 pursuant to section 19(9) of the Extradition Act 1988 (Act), committing the Applicant to imprisonment in Hakea Prison, Canning Vale, Western Australia; and2.the surrender warrant issued by the First Respondent under section 23 of the Act on 12 November 2009 authorising the Officer in Charge of Hakea Prison (Fourth Respondent) to release the Applicant into the custody of officers of the Republic of Hungary,be stayed until further order of the Court and that the Applicant after complying with the conditions set out in Schedule 1 to this Order, be released on bail with a duty to surrender to the Federal Court of Australia upon the order of the Federal Court of Australia on a date and time to be notified to the Applicant by an officer of the Federal Court of Australia.Schedule 1Pursuant to section 23 of the Federal Court of Australia Act 1976 and Order 4 Rule 9 of the Federal Court Rules the Applicant be released on bail on the following terms and conditions:a.$50,000.00 personal undertaking;b.$75,000.00 surety;c.Surrender all passports and not apply for any passports;d.Not to approach within 100 metres of any point of the domestic or international departure and not to leave Australia; ande.Reside at 2/10 Millar Place, Willetton, WA.

Ratio Decidendi

Legal Principle Established

Established by: MCKERRACHER J

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