Zoeller, G v Federal Republic of Germany
[1989] FCA 677
•12 May 1989
671 1 , %'l.
'JUDGMENT NO. ........ ...... .[...-........ ..a
IN TEE FEDERAL COURT OF AUSTRAT.TA
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NEW SOUTH WALES DISTRICT REGISTRY 1 No. G230 of 1989
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GENERAL DIVISION )
BETWEEN: GUENTER Z0EI;LER Applicant
AND: FEDERAL REPUBLIC OF GERMAHY First Respondent AND: PETER GQULD Second Respondent AND: THE COPIMONWEALTB
DIRECTOR OF PUBLIC
PROSECUTIONSThird Respondent
CORAM: Einfeld J
DATE: 12May 1989
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I PLACE: Sydney I i M-TEMPORE JUM;MENT
HIS HONOUR: This is an application for bail made under section 21(6)(f) ofthe Extradition Act 1988,ActNo. 4 of 1988. Thebail is sought to permit the applicant to be released from custody pending the hearing of an application for an order of review of a mag&stratefs
decision, the magistrate being the second respondent, on an application for the extradition of the applicant to the Federal Republic of Germany
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Section 21 of the Extradition Act permits this Court to review the order i j I of a magistrate and inter alia to quash the o.rder made and direct the j ' ., magistrate to order the release of the person sought to be extradited. I:' , ! S.,.
In his application for a review of the magistrate's order, the applicant i - k.: seeks to attack each of the alleged extradition offences as being of a '1,
kind which the Act excludes or precludes, contrary undoubtedly to the .,
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intention of Parliament when it passed any form of extradition : ., legislation and certainly its recent attempt in Act No. 4 of 1988. Attempts to extradite the applicant in Germany have now been taking place for a very considerable time. A previous application for extradition failed after proceedings in thls Court, during the course of which the applicant was in custody for a period of what I am informed was 292 days. That appears to be about half the number of days over which the litigation has been taking place - perhaps a little more than half. Nonetheless the applicant has been out of custody also for lengthy periods following upon orders made by thls Court.
. , The evidence reveals that during the course of the proceedings, the 1 ;. I '
applicant has married an Australian citizen and has what is said, in :,. j.
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undisputed evidence, to be a happy, strong and stable marriage. The i . I
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domiclle of the applicant and his wife is a suburb of Sydney and it
appears that thelr lives have become inter-linked not only in law but in i : ! , - other practical ways including some commercial aspects. i .: ! i ! ! l , . Every person who is released on bail might flee from his or her ,., I - 8
potential prosecutors and there is always a risk that a person released 1
on bail may not attend for the actual proceedings in view. It is i- I . , : , always, therefore, necessary to make what is effectively an intuitive assessment of the circumstances in each p'articular case. In our society, as in the Federal Republic of Germany, a person coming before the Court preparatory to ~0nVl~tiOn is innocent and should be entitled to the maximum liberty which is permitted'to innocent people, consistent also with the responsibility of the person concerned to respect that liberty by presenting at the Court at the required time for the hearing of the relevant proceedings.
This applicant has demonstrated his willingness to play his role in that type of equitable balance in the past by presenting himself from time to time to a Court even though he was at liberty at the tLme and able, ~f he should have so wished, to escape this jurisdiction. The fact that he is now married to an Australlan and engaged in as normal a lifestyle as is possible in the present circumstances, is an additional and considerable factor in suggesting that he would be likely to present himself to the Court when required.
The respondents say that he has a strong incentive to flee and I accept this submission. Of course any person who faces charges on serious
matters always has an incentive to flee any jurisdiction which is seeking to make him accountable for what is alleged against him. It is said that these are serious offences involving slzeable sums of money and carrying large imprisonment penalties provided by the Federal Republic. It is alleged that the case agalnst him is strong and that
if he wanted to, he could easily arrange a departure from Australia. I am not at all sure that it is true that he could easily leave Australia.
I suppose with a country of this size wlth an enolmous border to the sea, a person could set out from any beach along the coastline of
I Australia in a small boat, rowing himself, or perhaps even providing I ! fuel for a motor, and set off for some exotlc,pasture In the vicinity !
but it is a fairly chancy undertaking and not one which Is indulged in, I think, by too many people. I think conditions can be imposed upon
I the applicant which substantially impede his facility to leave Australia I and chese conditions would be simllar to those which have in the past
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I successfully ensured that he remained within the ~urlsdiction: i I have no doubt that the applicant as a sensible man would understand :- that the lifestyle to which he could flee could hardly be described as ,~
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an improvement on the one which he is presently following, knowing that 1 ' i
he will get the maxlmum justice which Australian Courts, and no doubt !: i - , - , c. the Courts of the Federal Republic of Germany as well, can bring to bear 1. > ., in his case. I ! I
: t 1 L L ' In the circumstances, therefore, it seems to me proper that he should be 1 ,
: >~ granted bail. It is fairly clear to me that the first instance hearing :,'
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of the current review of the magistrate's decision is unlikely to be the . ,
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end of the litigation. I think it would be unlikely that the i . 1 . 8 , litigation available to him in Australia in relation to his extradition :.
would be concluded much before the end of the year. It is to me quite j ' unthinkable that he could be kept in custody for six or seven months i ' i while the litigation grinds on its merry way. r ' ; There Is an argument available under the legislation, which is advocated LT- . ,
by the Director of Public Prosecutions, that I must find that special >-' circumstances exist before ordering bail. The Director has presented to ; > ! the Court an outline of a sophisticated argument whlch would suggest : -
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that the apparent words of section 21(6)(f) allowing thls Court to order ,.' L , , . I I bail without conditions or restrictions of the special circumstances -'
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variety, is not the correct way to read the legislation. He says that I j I ,. should have in mind the terms of section 15(6) which in express words .,,
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only requires a magistrate to find special circumstances before granting ,.
ball.
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I agree with counsel for the Director that it is a very odd position j I - indeed that one day a magistrate must find special circumstances before i : i
L , granting bail, say, for example. just after having made a finding that / ' ! ' the person concerned is liable for extradition, and the very next day !
. ., i under cover of an application for review in this Court, those special I-. circumstances do not have to be found. Either that is an anomaly or it ,. 1 ' I. is the intention of a deliberate expression by the legislature to 1
.: i _: broaden the availability of bail when this Court assures jurisdiction in b~ I. c. .
extradition matters. The Director of Public Prosecutions argues that it L I . ~ I /
is appropriate to read section 21(6) as if It contained a requirement i , .,
1 , 8 . for finding special or exceptional circumstances. I , 1.3 1 .
It is not possible in the framework of the Court's buslness at the 1: . , - present time to rule finally on that matter. It seems to. me that ir, 1 . ~ 1.' i - any event, there are special circumstances in this case which justif1 /, 1: the granting of bail. By so stating, I do not indicate that I accept [
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the argument that section 21(6) contains such a requirement by inference 1,' or operation of law, but in order to permit this litigation to make 1 '
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I progress and also because of the facts in the matter, I think that if 1' ! ., section 21(6> does require speclal circumstances to be f.ound, speclal 1.- / I circumstances do exist in this case. Those circumstances include that ,. , L the applicant has been in custody for something just short Of a year ir ! t other related proceedings; that there has been a long h~story of [ : I_ litigation in the matter; and that some of the delay in the proceedings was caused by the fact that an appeal from the'previous decision in this matter of Sheppard J was lodged by the Director of Public Prosecutions and was not withdrawn for a considerable time after lodgment.
I do not see why the appllcant should in any way be held to suffer from
the fact that there was this delay although I am not to be taken as suggesting the delay was in any way improper. I just do not know the facts but I cannot see why the appllcant should be held to account for a delay whlch was not of his making at all.
Other speclal circumstances include that the applicant has married during the course of these proceedings, that he has attended at Court and presented himself for re-arrest notwithstanding being out of custody for considerable periods, and that the past and likely future length of these proceedings. These make it quite unjust that he should be requlred to spend more time incarcerated while the proceedings continue.
For all those reasons I propose to grant bail and to fix an early hearing at first instance of this application. Bail will be granted on
the followlng terms: 1. The applicant will undertake to the Court that he will appear here on the day that I wlll fix in a moment for the hearing of
the revlev of the maglstrate's finding in this matter. 2. The applicant will procure from Marie Elalne Lee, his wife, an
undertaking by her to the Court that in the event that the
applicant does not appear as required at the hearing of this
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matter, she will pay to the Commonwealth of Australla the sum of ;; , . I . $100,000. , 8 l
I interrupt myself for a moment. I take it the passport is still , : surrendered, anyway? MR WILLIAMS: It Is, your Honour. EIS HONOUR: Yes.
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3. The applicant will leave as surrendered his passport with the ; ~ .
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officer in charge of the Australian Federal Police at Redfern 1:'
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and will undertake not to apply for a fresh passport or other !. f . travel documents which would permit his legal departure from ( ~ . , this country. 4. The applicant will undertake not to depart or seek to depart I
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Australia by lawful or unlawful means and will not approach I
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airports or shipping terminals from which transport departs !
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Australia for overseas.
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5. The applicant will report to the officer in charge of the North i ! L . Sydney Police Station by presenting himself each Monday, ! I
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Wednesday and Friday between the hours of 8 . 0 0 am and 10.00 p.m. L . L;' 6. The applicant will continue to reside at Unit 17C Number 50 :.!
Whallng Road, North Sydney but may notlfy the Director of Publlc ~ Prosecutions of any intention of hlmself and his wife to move to , , . other premlses provided such notice 1s given not less than 48 : hours before such move is intended. Should the applicant wish
to reside elsewhere overnight, such hs for example on vacation or for other temporary purposes, he shall give notice of such intention not less than 48 hours before such residence is intended to occur. Without further order of the Court the applicant shall not make arrangements to reside away from Whaling Road, North Sydney for longer than 14 days at any one time.
The applicant shall notify the Director of Public Prosecutions of all or any employment ox commercial enterprise which from time to time he undertakes in Australia and shall keep the Director notified of such activity whilst it continues. This notiflcatlon may be given either in writing or by telephone and may be given on the applicant's behalf by a duly authorised legal or personal representative.
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