JUDGMENT No. 4S Pl nnn CATCHWORDS Extradition - fugitive refused bail - application to review magistrate's decision - magistrate's power to grant bail ~- power of Federal Court to give relief in nature of bail - interlocutory relief - imminence of final hearing ~ bail refused. Extradition (Foreign States) Act 1966, 5.17. Administrative Decisions (Judicial Review) Act 1977, s.15. GUENTER ZOELLER v THE HONOURABLE LIONEL FROST BOWEN, ATTORNEY GENERAL OF THE COMMONWEALTH OF AUSTRALIA, THE HONOURABLE MICHAEL JOHN DUFFY, MINISTER OF STATE FOR TRADE NEGOTIATIONS, STANLEY DAVID KINGSLEY HYDE, MAGISTRATE, KEVIN ROBERT WEBB, MAGISTRATE, THE DIRECTOR OF PUBLIC PROSECUTIONS, THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE AND RAYMOND CARLIN. ' No. G406 of 1987 Morling J. Sydney. 3 September 1987. wo rr Le we et ee epee eee vr in bry " ee a TE ST a IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G406 of 1987 ee et eet ee et GENERAL DIVISION BETWEEN: GUENTER ZOELLER f Applicant AND: THE HONOURABLE LIONEL fr FROST BOWEN ATTORNEY GENERAL OF THE iz COMMONWEALTH OF AUSTRALIA First t Respondent hee AND: THE HONOURABLE MICHAEL JOAN DUFFY MINISTER OF STATE FOR . TRADE NEGOTIATIONS i" Second Respondent AND: STANLEY DAVID KINGSLEY | - HYDE MAGISTRATE t ! 4 Third i Respondent , b AND: KEVIN ROBERT WEBB MAGISTRATE —— ( Fourth an . Respondent i AND: THE DIRECTOR OF PUBLIC PROSECUTIONS reese 2 owt Fifth Js Respondent fe AND: THE COMMISSIONER OF THE - AUSTRALIAN FEDERAL riot POLICE ; Sixth ; a Respondent . ~2- AND: RAYMOND CARLIN Seventh Respondent CORAM : MORLING J. PLACE: SYDNEY DATE: 3 September 1987. MINUTES OF ORDER THE COURT ORDERS: 1. That the application for interlocutory relief be dismissed. 2. That the costs of the application be reserved. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION BETWEEN: AND: AND: AND: No. G406 of 1987 wee ww GUENTER ZOELLER Applicant THE HONOURABLE LIONEL FROST BOWEN ATTORNEY GENERAL OF THE COMMONWEALTH OF AUSTRALIA First Respondent THE HONOURABLE MICHAEL JOHN DUFFY MINISTER OF STATE FOR TRADE NEGOTIATIONS Second Respondent STANLEY DAVID KINGSLEY HYDE MAGISTRATE Third Respondent KEVIN ROBERT WEBB MAGISTRATE Fourth Respondent THE DIRECTOR OF PUBLIC PROSECUTIONS Fifth Respondent THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE — eewary menyngp ee nen wenn Sixth Respondent AND: RAYMOND CARLIN Seventh Respondent MORLING J. 3 September 1987. REASONS FOR JUDGMENT This is an application for interlocutory relief in proceedings in which the applicant seeks an order of review under the provisions of the Administrative Decisions (Judicial Review) Act 1977 (the "Judicial Review Act"). The applicant seeks to have reviewed a number of decisions taken under the Extradition (Foreign States) Act 1966 (the "Extradition Act"). The final hearing of the application is to commence on 14 September 1987 but nothwithstanding the imminence of the hearing the applicant seeks interlocutory relief. The relief which is sought is an order pursuant to s.15 (1)(a) of the Judicial Review Act suspending the operation of a decision made on 17 July 1987 by Mr Webb S.M. under s.17(2) of the Extradition Act that the applicant be remanded in custody. In substance, what the applicant seeks is an interlocutory order that he be released from custody pending the final determination of the proceedings under the Judicial Review Act. The applicant is a citizen of West Germany. Prior to pee ee wee ete ood cee wo en foe ee ee oe ee - * fi "oe Dn ' ta - " meen 3. 1984 he was a senior executive in a large corporation whose activities included the provision of financial services. The company appears to have got into financial difficulty in 1984, or before. The applicant left West Germany in that year and came to live in Australia, where he has resided ever since. Before leaving West Germany he commenced proceedings against his former employer for wrongful dismissal. His employer counter-claimed, and these proceedings are still pending in a West German court. Some two years after the applicant left West Germany criminal proceedings were launched against him in that country. On 24 June 1986 a warrant for his apprehension was issued under s.16 of the Extradition Act. He was not arrested until 5 June 1987 when he was brought before a magistrate. He was initially remanded to 12 June when he applied for, and was refused, bail. The evidence does not clearly establish what happened thereafter, but it is clear that on 17 July a magistrate again remanded him in custody. The Extradition Act makes extensive provision for the extradition to foreign states of fugitives who are liable to be surrendered to countries to which the Act applies. For present purposes it is necessary to refer to part only of s.17, as follows: "17. (1) A person who is apprehended under a warrant issued in pursuance of section 16 shall, unless he is sooner released, be brought as soon as practicable before a Magistrate in the State or Territory in which he is — += ET apprehended. (2) Subject to sub-section (2A), a Magistrate may remand a person brought before him under this section, either in custody or on bail, for a period or periods not exceeding 7 days at any one time and, where a Magistrate remands a person for such a period, the person may, at the expiration of the period, be brought before that Magistrate or before any other Magistrate. (2A) The period for which a person brought before a Magistrate under this section may be remanded by the Magistrate may, if the person consents, be a period exceeding 7 days. (2B) Where, under sub-section (2), a Magistrate remands a person in custody after the person has made an application for bail, the person is not entitled to apply to any other court or person for release on bail." Senior Counsel for the Director of Public Prosecutions submitted that the Court has no power to grant the interlocutory relief sought by the applicant. He submitted that since an application for bail had been made and refused, s.17(2B) of the Extradition Act operates so as to deprive the Federal Court of power to make an order releasing the applicant on bail pending the final hearing in this Court I think this submission is based on an unduly restrictive interpretation of s.17(2B). In my opinion, s.17(2B)-disentitles a person -from applying to another court or person for release on bail only during the period for which he has been remanded by the magistrate before whom he was last brought. Thus, if a person is remanded in custody for 7 days, he is not entitled to apply for bail to another court or person during that period of 7 days. To construe the sub-section in the manner contended for t — ey eT . 4, ~—r A, 5. by counsel for the Director could lead to most inconvenient and unjust results. Thus if a person were to be apprehended, taken immediately before a magistrate and remanded without bail by that Magistrate for a few days to enable the person to prepare an application for bail, no other magistrate could grant him bail when he again appeared before the court. If the first magistrate were not available on the remand date the person would have to remain in custody, perhaps indefinitely, until that magistrate became available. The consequences of such a construction of the sub-section in cases where the original magistrate becomes ill or takes leave or is unavailable for some other reason are so manifestly unjust and inconvenient as to compel the adoption of the construction of the sub-section which I prefer to accept. So far as the meagre -evidence before the court discloses Mr Hyde S.M. the learned magistrate before whom the applicant appeared on 17 July, was not the magistrate before whom the applicant was taken on 5 June. If Mr Hyde proceeded upon the basis that s.17(2B) had the meaning attributed to it by counsel for the Director he must necessarily have formed the view that he had no power to grant bail, since the magistrate before whom the applicant appeared on 5 June had already refused bail. If this occurred, the applicant was denied the opportunity of having his application for bail considered on its merits. The date to which the applicant was last remanded in custody by a magistrate does not clearly appear from the evidence ae er a a rn ep rg cor 2, , er eh of oo. ted wt : . oe . " . = » wee eee ee earn eae presently before the Court. Before that date arrives, no other magistrate will have power to release the applicant on bail. But it will be competent for the applicant to again apply for bail on the remand date, and the magistrate before whom he then appears will not be disentitled by s.17(2B) from releasing him on bail. Even if I be wrong in the construction I place upon 8.17(2B) I do not think that provision deprives this Court of the power to grant the interlocutory relief sought by the applicant. The question is whether an application to the Federal Court for an order under s.15 of the Judicial Review Act suspending the operation of a magistrate's decision to remand a person in custody is an application "to any other court for release on bail" within the meaning of s.17(2B). It may be conceded that the -practical effect of an order under s.15 suspending the operation of a decision to remand a person in custody is to grant bail to that person. Even so, I do not think that that s.17(2B) of the Extradition Act has the effect for which counsel for the Director contends — Section 15 provities as follows: "15. (1) The making of an application to the Court under section 5 in relation to a decision does not affect the operation of the decision or prevent the taking of action to implement the decision but - (a) the Court or a Judge may, by order, on such conditions (if any) as it or he thinks fit, suspend the operation of the decision; and (b) the Court or a Judge may order, on such conditions 7. (if any) as it or he thinks fit, a stay of all or any proceedings under the decision. (2) The Court or a Judge may make an order under sub-section (1) of its or his own motion or on the application of the person who made the application under section 5." Section 15 provides an important means by which the Court may, in appropriate circumstances, make an order of an interlocutory kind to ensure that a party to proceedings under the Judicial Review Act is not unduly prejudiced pending the final determination of his application for an order of review. No doubt, when a magistrate has refused bail to an applicant the Federal Court will be reluctant to make an order the effect of which is to reverse that decision. Nevertheless, an order suspending the operation of a decision to remand a person in custody would not, of itself, be an order granting bail to that person. Nor would the imposition of conditions on the order convert the order into an order granting bail. It would remain an order made under s.i5 of the Judicial Review Act suspending the operation of the magistrate's order. Moreover, if the Court or a judge made the order of its or his own motion under s.15(2),. it would seem that s.17(2B) would not be infringed since the last mentioned provision only prevents an application being made by the person who has been refused bail. There does not appear to be any decision directly in point on the question of the inter-relation of s.15({1) and 6.17(2B). The dictum of Wilcox J. in Prevato v. The Governor, a re oad 8. Metropolitan Remand Centre (1986) 8FCR 358 at 364 to the effect that s.15 of the Judicial Review Act gives the Court power to make an interim order suspending the operation of a committal order upon appropriate conditions as to bail (with which dictum French J. expressed his agreement in Hemple v. Moore (1987) 70ALR 714 at 721) is of no real assistance to the applicant. This is because a committal order is made under s.17(6) of the Extradition Act and s.17(2B) applies only to cases where a person has been remanded under s.17(2). In these circumstances, neither Wilcox J. nor French J. had to consider whether s.17(2B) affects the Court's powers under s.i5(1) of the Judicial Review Act. I turn now to consider the application for interlocutory relief on its merits. I shall consider the application upon the basis that the applicant has an arguable case for final relief, although counsel for the respondents dispute that this is so. I do not find it necessary to form any view as to the applicant's prospects of success in view of the opinion which I have formed that it would not be appropriate, in any event, to grant the interlocutory relief sought. There is much that can be said in favour of the application. The applicant has no convictions. He came to Australia with his wife before any criminal proceedings were taken against him in West Germany and thus it cannot be said that he fled that country at a time when his arrest was sought. He has substantial assets. It is true that orders in the nature of wn EO TT ve ° o we ny ante ee ee ee Y % we ee em a 9. Mareva injunctions have been made in the Courts of the United States, Switzerland and Australia freezing these assets and preventing the applicant from disposing of them. Nevertheless, the fact that he has substantial assets which he cannot dissipate or use to avoid future detection is a circumstance which seems to me to make it unlikely that he would not appear again in Court when required. Further, I do not think there is any evidence to suggest that the applicant has avoided detection since his arrival in this country three years ago. He appears to have formed a permanent relationship with a respectable businesswoman who is willing to offer her own assets, at least in the short term, to the value of approximately $75,000 as security to ensure his attendance at future Court hearings. Moreover, the applicant has a legitimate reason for wishing to have free access to his legal advisors for the purpose of instructing them not only in relation to the extradition proceedings but also in relation to other substantial litigation in which he is engaged in the Supreme Court of New South Wales against his former employer. All these matters, and other matters to which I have not referred,- would support the making of a conditional order under 6.15(1). On the other hand, the amounts of money involved in the charges against the applicant are very substantial. He disputes that they are as great as they were alleged to be when he was remanded by the magistrate. Nevertheless, on any view of the charges, the amounts involved in them appear to be not less than pp rererenny ne ee ee oe ote . wy 1t i- doe epee ee ae ween eee peep 10. $1,000,000. Further, it is the fact that he left West Germany telling only his lawyer where he was going. Other matters which would tell against the making of a conditional order are referred to in a telex sent by Interpol to the Australian authorities. Counsel for the applicant submitted that much of what is said in the telex is, at best, hearsay and ought not to be given weight and I generally agree with this submission. On the other hand, there are some matters in the telex which are a cause for concern. As I have already observed, the final hearing of the application will take place in 10 day's time. Counsel are agreed that if the applicant succeeds in those proceedings he will be entitled to be released from custody. I think it would be unusual in ordinary criminal cases for a person who has been kept in custody for some three months prior to his trial to be given bail a week or so prior to the commencement of the trial. I do not minimise the adverse consequences to the applicant of being held in custody for a further period of 10 days. However, taking into account all the circumstances, particularly the amounts involved in the alleged offences, the imminence of the final hearing and the fact that the applicant has chosen to leave his native country, I do not think it is appropriate to grant the interlocutory relief. The application is therefore refused. It is possible that the final hearing in this Court will not be concluded as expeditiously as is presently cad + tr PRY rg Er Cen pne n can o - a a! . . - rm 11. contemplated. If this occurs, and it subsequently appears that considerable time will elapse before a final decision can be given, the applicant may wish to again seek interlocutory relief. Nothing that I say in these reasons should be taken as preventing him from making a further application for bail to the trial judge in the light of the circumstances as they then exist. | Indeed, ac will appear from what I have already said, there will be nothing to prevent the applicant from seeking bail when he next appears before a magistrate. The costs of the application are reserved. I certify that this and the 9 preceding pages are a true copy of the Reasons for judgment herein of His Honour Mr Justice Morling. Associate: CMomuon) Date: 7 September 148? Counsel for the applicant: Solicitors for the applicant: Counsel for the first, second, sixth and seventh respondents: Solicitor for the first, second, sixth and seventh respondents: Rae T. Robertson Barker Gosling C. Simpson ° Australian Government Solicitor Counsel for the fifth respondent: B. Sully, Q.C. and P. Dwyer seat ry