Judgement No./O35,.4_] EXTRADITION - pending appeal to Full Court ~- joinder of Director of Public Prosecutions - role of Director of Public Prosecutions in extradition proceedings - expedited appeal - bail application pending appeal ~ power of single judge - no power under s.23 Federal Court of Australia Act ~- whether power under 0.53 r.35 - whether "criminal case" - principles governing exercise of power to release on bail - policy of Extradition (Foreign States) Act 1966 - anomalous provisions relating to bail - exceptional circumstances required to warrant grant of bail pending appeal - bail application rejected. Federal Court of Australia Act ss. 23, 25, 59, 59(2)(£) Extradition (Foreign States) Act ss.17(6), 18A(6) Federal Court Rules 0.52 r.35 Federal Republic of Germany v Schlieske (unreported Sweeney J. 24/10/86) ( Amrit Lal Narain v Director of Public Prosecutions (unreported Full Court 9/2/87) Bercove v Hermes {No.2) (1983) 51 ALR 105 Amand v Home Secretary [1943] AC 147 Zacharia v Republic of Cyprus [1963] AC 634 Re: Groves [1973] Qd.R. 310 Rv Phillips (1922) 38 TLR 897 ARTHUR JAMES HEMPEL and LAURENCE ETHEREDGE v KENNETH MOORE WAG 125 of 1986 FRENCH J. 9 March 1987 Perth FEDERAL COURT AUSTRALIA. OF PRINCIPAI REGISTRY IN THE FEDERAL COURT OF AUSTRALIA DISTRICT REGISTRY ) ) WESTERN AUSTRALIA ) ) ) GENERAL DIVISION No. WAG 125 of 1986 ON APPEAL FROM MR_ JUSTICE BURCHETT BETWEEN: ARTHUR JAMES HEMPEL AND LAURENCE ETHEREDGE Appellants and KENNETH MOORE Respondent MINUTE OF ORDER JUDGE MAKING ORDER: FRENCH J. DATE OF ORDER: 9 MARCH 1987 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The Director of Public Prosecutions be joined as second respondent to the appeal. The appeal be expedited to the extent necessary to enable it to be listed at the sittings of the Full Court in Perth commencing 19 May 1987. The appellants' motion for an order that they be released on bail be dismissed. Appellants to pay the second respondent's costs of the appellants' motion in any event. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION NO. WAG 125 of 1986 ON APPEAL FROM MR JUSTICE BURCHETT BETWEEN: ARTHUR JAMES HEMPEL and LAURENCE ETHEREDGE Appellants and KENNETH MOORE Respondent CORAM: FRENCH J. 9 March 1987 REASONS FOR JUDGMENT On 29 August 1985 the appellants sailed the vessel Orionia from the port of Eilat in Israel and travelled in it to Albany in Western Australia where they arrived on 22 January 1986. According to Israeli authorities they were, by taking the boat, guilty of stealing it contrary to s.393(2) of the Israeli Penal Code. The day following their arrival in Albany the appellants were arrested by officers of the Australian Federal Police pursuant to warrants issued under s.16 of the Extradition (Foreign States) Act 1966. 2. They were taken into custody and after an appearance in the Albany Court of Petty Sessions, were remanded in custody to appear in the Perth Court of Petty Sessions on 31 January 1986. They appeared in the Perth Court of Petty Sessions on 31 January and were remanded for a further 7 days. On 7 February they again appeared in that Court and were then released on bail to appear on 20 February. The release on bail was pursuant to sub-ss. 17(2) and (2A) of the Extradition (Foreign States) Act. On 20 February they were again remanded on bail to appear on 13 March. The object of these remands was to enable the State of Israel to send a formal requisition for their surrender pursuant to the extradition treaty between Australia and Israel which is set out in a schedule to the Extradition (State of Israel) Regulations. On 10 March 1986 following the transmission of the requisitions the Attorney-General issued notices pursuant to s.15(1)(b) of the Act informing any magistrate before whom the appellants might be brought, of the making of the requisition and, that in the opinion of the Attorney, they were liable to be surrendered to the State of Israel and that the offence to which the requisition related was not of a political character. 3. On 13 March 1986 the notices were tendered to the Magistrate before whom the appellants then appeared. 8 May 1986 was fixed as the date for a hearing to determine whether or not the appellants should be committed to prison to await the warrant of the Attorney-General for their surrender to the State of Israel pursuant to sub-s. 17(6) of the Act. On 8 May they applied for an adjournment and were remanded on bail to appear again on 14 July 1986. The matter came on then before the first respondent, Mr Moore S.M., and a further adjournment request was refused. The hearing proceeded on 14 and 15 July, 31 July and 1 August when Mr Moore committed the appellants to prison pursuant to sub-s.17(6). At the hearing the Director of Public Prosecutions appeared by senior counsel to conduct the matter pursuant to para. 6(1)(k) of the Director of Public Prosecutions Act 1983. The appellants were committed in custody and have evidently been in custody continuously since 1 August. 4. They sought a review of the learned Magistrate's decision in this court pursuant to the Administrative Decisions (Judicial Review) Act and also pursuant to s.18 of the Extradition (Foreign States) Act 1966. The application named the Magistrate as the respondent. At the hearing before Burchett J., senior counsel instructed by the Director of Public Proscutions appeared but the Director was not named as a party to the proceedings. The applications were heard on 21 August and his Honour gave his judgment dismissing them on 10 December. He also made an order pursuant to sub-s.18(3) of the Act confirming the Magistrate's decision. On 17 December 1986 the appellants instituted an appeal to the Full Court of this court from the decision of Burchett J. The appeal proceedings have progressed to the point where the index to the appeal papers was settled before the Deputy Registrar on 3 February 1987. The Deputy Registrar has advised the parties that the earliest date on which the matter can be listed 1s 19th May 1987 in Perth. orga cr atl cae PGS, & Spy 7 he 5. There are two motions presently before the court. The first by the Director of Public Prosecutions, seeks an order that he be added as second respondent. It also seeks an order that the hearing of the appeal be expedited. The second, brought by the appellants, also seeks an order joining the Director of Public Prosecutions and, an order releasing the appellants on bail subject to conditions. On the question of joinder the power of a single judge to add a person as a party to a pending appeal, is to be found in 0.52 r.14 which provides:- "(1) Each party to the proceeding in the court appealed from who is affected by the relief sought by a notice of appeal or is interested in maintaining the judgment under appeal shall be joined as a party appellant or respondent to the appeal. (2) The Court or a Judge may order the addition or removal of any person as a party appellant or respondent to an appeal. (3) A person shall not be made an appellant without his consent." In support of his application to be joined as a respondent the Director of Public Prosecutions invokes paragraph 6(1)(k) of the Director of Public Prosecutions Act 1983:- "6(1) The functions of the Director are - 6. (k) to appear in proceedings under the Extradition (Commonwealth Countries) Act 1966 or the Extradition (Foreign States) Act 1966;" This must be read with s.15 of the Act which in its relevant parts provides:- "15. In - (a) proceedings - (1) anstituted, taken over or carried on by the Director; (i1) to which the Director is, or is seeking to become, a party; (iii) in which the Director intervenes or seeks to intervene; or (iv) of a kind referred to in paragraph 6(1)(k). (b) an inquest or inquiry conducted under a law of the Commonwealth, being an inquest or inquiry in which the Director is assisting the coroner; or (c) proceedings by way of appeal from, or otherwise arising out of proceedings of a kind referred to in paragraph (a) or an inquest or inquiry of the kind referred to in paragraph (b), the Director may appear in person or may be represented- {d) by a member of the staff of the Office who is a legal practitioner; (e) by counsel or solicitor; (£) by a prescribed person." This provision empowers the Director in extradition proceedings to appear in person or be represented in the exercise of the functions defined in para.6(1)(k). 7. It does so in language that suggests a distinction between proceedings in which he is a party (sub-para.15(a)(i)) and extradition proceedings (15(a)(iv)). That distinction may perhaps be explained by resort to Paragraph 1 of Article XVIII of the treaty between Australia and the State of Israel concerning extradition, which in a form evidently common in such treaties provides:- "The requested State shall arrange for the representation of the requesting State in any legal proceedings relating to the extradition of the person whose extradition is requested and shall otherwise represent the interests of the requesting State." The appearance of the Director of Public Prosecutions in such proceedings is one way in which Australia may discharge that treaty obligation. It does not mean that he necessarily acts as counsel or solicitor for the requesting State. Such a role is. only appropriate where the requesting State is a party to the proceedings. There is provision under s.17A of the Act for the requesting State to apply to this court or the Supreme Court of the relevant State or Territory for review of an order of a magistrate releasing a person under sub-s.17(6). In such a case the requesting state is a party to the proceedings. In Federal 8. Republic of Germany v Schlieske (unreported Sweeney J. 24/10/86) for example, the record shows that the Director of Public Prosecutions was solicitor for the applicant, On the other hand in Amrit Lal Narain v Director of Public Prosecutions (Unreported Full Court 9/2/87) the Director was named as a respondent in proceedings by way of appeal from a Judgment dismissing an application for review of a magistrate's decision under the Extradition (Commonwealth Countries) Act 1966. Hls appearance in proceedings where the requesting state is not a party provides a mechanism, although not the only possible mechanism, for discharge of the treaty obligation under Article XVIII. It might be said that the procedure is somewhat clumsy and that the various roles of the Director may generate confusion in practice. But that is a matter to be considered by the legislature if at all. On the basis outlined above the Director does in my opinion, have a legitimate interest in being joined as a party in these appeal proceedings. Further, unless and until he is joined the only respondent is the Magistrate, the relevant decision maker whose active participation in the support of his own decision would, 9. having regard to his office and the nature of the proceedings, be quite inappropriate. For these reasons I order that the Director of Public Prosecutions be joined as second respondent to the appeal. The second part of the Director's motion seeks an order that the appeal be expedited. In that regard my inquiries indicate that the appeal cannot be heard by a Full Court prior to May without considerable difficulty which might only be justified if the matter were one of extreme urgency. The appellants oppose the application for an expedited hearing, in part it seems on the basis that counsel of their choice may, by reason of academic teaching commitments, be unable to appear at an expedited hearing outside the State of Western Australia. Recognising the importance and urgency of the matter, it is nevertheless able to be listed for hearing at the sittings of the Full Court to be held in Perth commencing on 19th May. The appellants whose liberty is at stake are opposed to an earlier hearing. I am not persuaded that from the respondent's point of view the matter is so urgent that it must be listed for hearing prior to May. 10. In these circumstances I will order that the appeal be expedited to the extent necessary to enable it to be listed for hearing at the sittings of the Full Court in Perth commencing 19 May. This leaves for consideration the appellants' motion for an order that they be released on bail subject to such conditions as the court thinks fit. Two questions immediately arise in that regard :- 1. Does the court have power to release the appellants on bail? 2. Upon what principles should the exercise of such power be approached? The appellants rely upon s.23 of the Act as providing a source of power able to be exercised by a single judge to make an order which would have the effect of releasing them on bail. No authority was cited for that propostion. Section 23 although general in its terminology, appears in Division 1 of Part III of the Act under the heading "Original Jurisdiction". There is only one reported case which I have been able to find in which injunctive relief was given under s.23 pending the determination of an appeal. ll. In Bercove v Hermes (No. 2) (1983) 51 ALR 105 the appellant had instituted an appeal to the Full Court following the dismissal by Morling J. of his application for review of a decision of the Disciplinary Appeal Board established under the Public Service Act 1922 (Cwth). The Board's decision had confirmed a recommendation to the Public Service Board by the Chief Officer of the Attorney General's Department that the appellant be dismissed from the service. The appellant sought' an interlocutory injunction restraining the Public Service Board from considering' the recommendation until determination of the appeal. Toohey J. granted the injunction and said:- "Tt is true that s.23 finds its place in div.l - original jurisdiction of Pt.III of the Federal Court Act but, as I understand it, it is original not appellate jurisdiction that I am being called upon to exercise." It does not appear from the report precisely how it was that the appellant invoked the original jurisdiction of the court. In the present case the appellants' motion is brought in the appeal proceedings. In the exercise of the powers conferred upon it in its appellate jurisdiction by s.28 of the Act, the court may have ' 12. occasion in making an order under s.28(1)(b), to make an order of a kind that could have been made under s.23 in its original jurisdiction. But there is on the face of it no power in a single judge to make interlocutory orders under s.23 in pending appeal proceedings. Sub-section 25(1) of the Act provides that:- "The appellate jurisdiction of the court shall subject to this section and to the provisions of any other Act be exercised by a Full Court." There is no relevant exception to that provision which would enable a single judge to exercise in the appellate jurisdiction of the court the powers conferred by s.23. Counsel for the appellants relied in the alternative on 0.52 r.35 which provides:- "Rule 35 Criminal Cases (1) In criminal cases an appellant may present his case and his argument to the Court in writing if he so desires, and, if he does so, it is not necessary for him to appear or to be represented upon the hearing of the appeal. (2) An appellant who is in custody 1s not entitled to be present on the hearing of his appeal, or of his application for leave to appeal, without the leave of the Court. (3) The Court or a Judge may, upon such terms as it thinks fit, admit an appellant to bail pending the hearing of his appeal or his application for leave to appeal." 13. There is some basis for the view that the rule is untended to apply to appeals to the Full Court against the convictions or sentences of persons convicted of offences in the Supreme Courts of the territories. Section 59 of the Federal Court of Australia Act confers upon the judges of the court power to make rules of court. While sub-s.59(1) confers that power in general terms, sub-s.59(2) sets out some 20 subjects for which the rules may make provision. Paragraph 59(2)(f) specifically refers to "the custody of convicted persons". The appellants are not "convicted persons". They have been committed to prison pending their surrender to the State of Israel where they will, if the surrender proceeds, be tried for offences against the law of that country. Counsel for the appellants however referred to Amand v Home Secretary [1943] AC 147, 156 and Zacharia v Republic of Cyprus [1963] AC 634, 657. In the Amand case a citizen of the Netherlands who had lived in England for 14 years was arrested in that country for being absent without leave from the Netherlands Army. 14, He was brought before a Magistrate to be handed over to Netherlands military authorities. The question arose whether the Court of Appeal had jurisdiction to hear an appeal from the decision of the Divisional Court refusing his application for habeas corpus. Its resolution depended upon whether the judgment appealed from was "a criminal cause or matter" within paragraph 31(1)(a) of the Supreme Court of Judicature (Consolidation) Act 1925. The House of Lords affirmed the decision of the Court of Appeal that it lacked jurisdiction as the judgment was in a "criminal cause or matter". Viscount Simon L.C. at 156 said:- "If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal." Lord Wright at 162 said:- "The order may not involve punishments by the law of this country, but if the effect of the order is to subject by means of the operation of English law the persons charged to the criminal jurisdiction of a foreign country, the order is, in the eyes of the English law for the purposes being considered, an order in a criminal cause or matter...." Py 15. Similar views were expressed by Lord Porter at 164. In Zacharia v Republic of Cyprus (supra) there was no question that the appeal to the House of Lords from the Divisional Court decision on an application for a writ of habeas corpus was in a criminal cause or matter. The case proceeds upon the basis of that proposition and does not therefore add to what was said in Amand. If extradition proceedings are properly characterised as criminal cases, the application to them of the judicial review process does not alter that characterisation:- "It is clearly established that matters such as prohibition, certiorari and mandamus in relation to causes or matters which are criminal are themselves criminal causes or matters excluding this court from exercising appellate jurisdiction." R v Army Council, Ex parte Sandford (1940) 1 K.B. 719 To construe 0.53 r.35 only by reference to the head of rule making power in paragraph 59(2)(f) of the Federal Court of Australia Act is I think to take an unnecessarily restrictive approach. While the paragraph itself carries the limitation that the rule making power conferred by it relates to the custody of "convicted persons", 1t is part of a facultative provision in sub-s.59(2) which does not derogate from the general rule making power contained in sub-s.59(1). 16. That flows from the opening words of sub-s.59(2) - "in particular...". The construction of 0.52 4.35, unconfined by a restrictive reading of s.59, may be approached by reference to the ordinary meaning of the words. The ordinary meaning of the words directs the reader to the function of the rule which 1s to enable the court to deal with an appellant in a criminal case where the appellant is in custody. Such a person has no right of personal appearance but a facility for written submission enables the court to consider his case 1n any event. If in custody, he may by leave of the court appear. In the case of an appeal against conviction or sentence that appearance can be secured by an order for production of the prisoner under 0.52 r.40 The facility for the court to admit an appellant to bail is a further power which, on a literal reading of the rule, does not depend upon any distinction between convicted and unconvicted persons. It does, I think, operate within the constraint that the case must be a "criminal case". That is a limitation to be derived from the opening words of sub-r.(1l). ays key eR 17. The decisions in Amand, Zacharia and R v Army Council; Ex parte Sandford (supra) support characterisation of the present proceeding as a "criminal case" for the purpose of the rule. Counsel for the Director contended nevertheless that the provisions of the Extradition (Foreign States) Act 1966 formed a code which excluded the possibility of a bail order at this stage. It is true that the Act makes only limited provision for release on bail after a magistrate has found the person concerned liable to be surrendered to the requesting state. Paragraph 17(6)(d) empowers a magistrate, if satisfied that a person is liable to be surrendered to the requesting state, to either commit him to prison to await the warrant of the Attorney General or in certain circumstances to grant bail pending the signing of the warrant. Bail may be granted in the case of a person:- (i) Who has been charged with an offence that is alleged to have been committed in Australia, being a charge that has not been disposed of; or (ii) Who has been convicted in Australia of an offence and is not in custody in respect of that offence. The limitation thus imposed upon the magistrate's power is difficult to understand. It would seem that a fugitive is better off if he has managed to break the law in Australia than if his record here is clear. ri eye pane mee opngt oy ee TUR! Tae a 18. Further, it appears to be ae result of paragraph 17(6)(d)(ii) that it is not necessary that the offence for which he has been convicted should have attracted any custodial disposition at all. On that basis, conviction for a parking offence would render him eligible for the exercise of the magistrate's discretion to grant bail. A similarly curious limitation operates in relation to the power conferred on this court by sub-s.18A(6) to order the release on bail of a person held in custody pursuant to the Act. For the only persons in respect of whom that power may be exercised under sub-s.(6) are those for whom an order has been made granting bail in respect of an offence alleged to have been committed in Australia or in respect of an offence of which the person has been convicted in Australia. Burchett J. has already commented in these proceedings on the anomalous position that arises from that limitation - Hempel and Etheredge v Moore (unreported Burchett J. 10/12/86). Wilcox J. observed in Prevato v_ The Governor Metropolitan Remand Centre (1986) 8 FCR 358 at 364 that there is no provision under the Extradition (Foreign States) Act for a court reviewing the magistrate's decision under s.18 of the Act to suspend the operation of the order or admit the fugitive to bail pending that review. 19. As his Honour pointed out however, where as in the present case, review is also sought under the Administrative Decisions (Judicial Review) Act, the power conferred on this court by s.15 of that Act appears to be sufficient to enable it ina proper case to suspend the operation of a committal order upon appropriate conditions as to bail. I respectfully agree. It may be right as counsel for the Director of Public Prosecutions submitted, that the provisions of the Act preclude the possibility of the grant of bail pending review where review proceedings are brought in a state or territory Supreme Court. In Re: Groves [1973] Qd.R. 310 W.B. Campbell J. held that the inherent jurisdiction of the Supreme Court of Queensland to grant bail does not extend to the case where a person is in custody under the Extradition (Commonwealth Countries) Act 1966. At 312 his Honour said:- "It seems to me that the Commonwealth has legislated generally and has covered the whole field in relation to the surrender of fugitive offenders between the Commonwealth of Australia and other Commonwealth countries. Consequently, the States have no powers to legislate in that field." A similar view was adopted by Yeldham J. in R v Rademeyer (1985) 1 NSWLR 285 when he held that the Bail Act 1978 20. could not apply to a person subject to extradition proceedings. The availability in this court of challenge to the committal decision by way of judicial review and subsequent appeal attracts an inventory of measures provided by Commonwealth law pursuant to which the subject may seek release pending the outcome of his challenges. In the original jurisdiction of the court these measures include suspensory orders under s.15 of the Judicial Review Act and if that be inapplicable in a particular case, the all purpose powers conferred by s.23 of the Federal Court of Australia Act. In the appellate jurisdiction, as I have already concluded, 0.52 r.35 is available to authorise release upon bail. There is nothing 1n my opinion about the availability of these provisions which is inconsistent with the provisions of the Extradition (Foreign States) Act 1966. Nevertheless judicial review at first instance, and a fortiori, the appeal process in judicial review proceedings involves the court in a supervisory and not a substitutive role. As I have previously observed in Snow v Deputy Commissioner of Taxation (unreported French J. 4/2/87) the availability of judicial review proceedings is not designed to 21. affect the substantive legislative polic1es expressed by the enactments in respect of which it operates. In my opinion the scheme of the Act, whatever criticisms may be made of it, is consistent with a restrictive approach to the granting of bail after a committal order has been made. Reported cases on the criteria historically applied to applications for bail after the making of a committal order for extradition are scarce. There is however some indication of a basis for a restrictive policy. The report of the judgment of Lord Hewart CJ in R v Phillips (1922) 38 TLR 897 on an application for bail after committal and pending the provision of further information from the requesting state, includes the following passage at 898:- "He thought that both the points urged on behalf of Phillips failed. In his view it was not the law that the King's Bench Division could not refuse bail. Nor did he think that cases of extradition were on the same footing as cases in this country. It was not a case of treaties extending to foreign countries rights denied to our own subjects. But we had entered into obligations and the strictness with which we fulfilled them was measured not by tenderness to the foreign country but by what we owed to our own honour. That did not mean that bail was to be refused in all cases; it was a matter for the discretion of the learned magistrate; it only meant that there were special grounds for care and caution." Darling and Branson JJ agreed. - See also Re : Gifford (1930) 1 DLR 800 at 802. 22. In my opinion the policy of the Act as derived from the legislative scheme requires that bail not be granted after review and pending appeal other than in exceptional circumstances. In the present case Burchett J. concluded that it was not an appropriate case in which to grant bail even if the power exists. I would, in any event, be reluctant to go behind that view unless some fresh material by way of evidence of exceptional circumstances were adduced. In their affidavit in support of their application for bail the appellants say that their continuing confinement at the Canning Vale Remand Centre makes it extremely difficult for them to confer with legal advisers in relation to other proceedings that they have before the Administrative Appeals Tribunal as well as their pending appeal. They depose that they are contemplating other proceedings against the Attorney General both for compensation for wrongful delivery of their ship to parties not entitled to receive it and also separate proceedings under s.14 of the Extradition (Foreign States) Act. These matters, they say, are difficult and complex and they are greatly prejudiced in their ability to conduct the various legal actions available to them by not being on bail and able to do a great deal of the necessary administrative and other work for themselves. This is necessary because they do not have the advantage of legal aid assistance and or eae ses oe Rica} 23. do not have necessary funds to enable them to turn the entire matter over to their solicitors. In that regard I note that the Director of Public Prosecutions through his counsel has undertaken to prepare the appeal books necessary for the Full Court hearing of this appeal in May. The appellants further say, that while in custody they are not entitled to unemployment benefits and that if released on bail the small increase in their income to be derived from those payments could be used to contribute towards their legal expenses. They point out that they were on bail from 7 February 1986 until 1 August 1986. Between 8 May 1986 and 1 August 1986 their bail conditions required them to report three times weekly to a police station or to federal police and to enter into personal recognizances of $20,000 with similar sureties. Their passports were to be kept in the custody of the federal police. They say, and there 1s nothing to contradict the statement, that they adhered faithfully to the terms. and conditions of their bail. If granted bail they would agree to the same terms and conditions as above and would propose to live at 183 Hare Street, Albany pending the determination of this hearing. Their former 24, surety,a priest of the Anglican Church who lives in Albany, 1s evidently prepared to be a surety for them again. They say they are not going to abscond nor is their any likelihood of their absconding. Evidence was adduced by the Director of Public Prosecutions to establish that the appellants had a criminal record in the United States of America. Counsel for the appellants indicated that his clients denied the existence of any such criminal record and would wish to bring evidence to contradict that of the Director. In the view which I have taken, it is not necessary to resolve that question. For I am of the opinion that there is nothing in the circumstances of which the appellants have spoken which is exceptional in the sense necessary to warrant releasing them on bail at this stage. While appreciating the difficulties that they may labour under by reason of their present incarceration, those are difficulties which must face any person who is committed to prison pending extradition. Teed 25. There will, it 1s true, be a delay of some 2 months until their appeal is heard but it is they who have resisted the application on the part of the Director of Public Prosecutions to have the appeal heard earlier than that date. That 1S notwithstanding the undertaking on the part of the Director both to prepare the appeal books and to pay the cost of transport of their counsel to any venue in Australia where an earlier hearing of the appeal might be effected. In all the circumstances of this case, I do not consider that it is appropriate to make an order releasing the appellants on bail and so far as their motion seeks that order it will be dismissed. I certify that this and the preceding twenty four (24) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice French. Associate 3: Date: // Lhveh / LE 7 26. Counsel for the Appellants: Mr J. Courtis instructed by Lohrmann Tindal & Guthrie Counsel for the Director of Public Prosecutions: Mr K.P. Bates instructed by Director of Public Prosecutions Date of Hearing: 4 March 1987 Date of Judgment : 9 March 1987 Mr M. Lee QC and Fou ca ae