\ CATCHWORDS CRIMINAL LAW AND PROCEDURE - application under Judicial Review Act - whether bail permitted after committal to prison under Extradition (Commonwealth Countries) Act - held discretion to grant bail. JUDICIAL REVIEW - application to grant bail pending review of Magistrate's decision - case not frivolous - whether applicant likely to answer bail important consideration. Administrative Decisions (Judicial Review) Act 1977 s.15 Extradition (Commonwealth Countries) Act 1966 s.15 William Bruce Tardrew v. Director of Public Prosecutions Qld G298 and 299 of 1987 PINCUS J. BRISBANE 24 DECEMBER 1987 IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G298 & 299 of 1987 GENERAL DIVISION ) BETWEEN: WILLIAM BRUCE TARDREW Applicant AND: DIRECTOR OF PUBLIC PROSECUTIONS Respondent MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER : 24 DECEMBER 1987 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application to suspend the operation of the order of the Stipendiary Magistrate of 22 December 1987 be refused; 2. The costs of the application be the respondent's costs in the proceedings. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G298 & 299 of 1987 GENERAL DIVISION ) BETWEEN: WILLIAM BRUCE TARDREW Applicant AND: DIRECTOR OF PUBLIC PROSECUTIONS Respondent PINCUS J. 24 DECEMBER 1987 REASONS FOR JUDGMENT The applicant seeks relief in respect of an order made by a Stipendiary Magistrate under the Extradition (Commonwealth Countries) Act 1966. He has attacked the order by an application under s.17 of that Act and also by an application under the Administrative Decisions (Judicial Review) Act 1977. The learned Magistrate committed the applicant to prison and he wishes to be released on bail. Mr. Griffin Q.C., who appeared with Mr. Callaghan for the respondent, conceded that there is jurisdiction to grant bail pending the resolution of the principal applications, but submitted that, in the whole of the circumstances, the discretion should not be exercised in favour of the applicant. In brief, the facts are that the applicant pleaded guilty to four charges of forgery and four charges of uttering in the National Court of Justice in Papua New Guinea in 1985; he was sentenced to five years imprisonment, but an order was made that he serve six months only and that the rest of the sentence be suspended on his entering into a recognizance. He served the six months less remission and was released just before the hearing of an appeal by the Public Prosecutor against the order for suspension, which appeal was allowed. It is now sought to extradite him to Papua New Guinea to serve out the balance of his sentence, in accordance with the order made on appeal. The concession as to jurisdiction made by Mr. Griffin was based upon the remarks in Prevato v. Governor, Metropolitan Remand Centre (1986) 64 A.L.R. 37 at p.43 and those in Hempel v. Moore (1987) 70 A.L.R. 714 at pp.721, 722. In my respectful Opinion, s.15 of the Judicial Review Act, as these cases say, permits the making of such an order as is sought. Mr. Griffin Q.C. said, however, that the Extradition (Commonwealth Countries) Act 1966 contemplates that ordinarily bail would not be allowed after a person is committed to prison under s.15(6)(c). He pointed out that the 1966 Act expressly allows the grant of bail at earlier stages - s.15(2) and s.15(6) but makes no provision for bail pending the review of the magistrate's decision under s.17. It appears to me, however, that once it is accepted that there is power to make an order suspending the operation of the magistrate's order of committal under the Judicial Review Act, the absence of power to grant bail pending a review under s.17 of the 1966 Act becomes irrelevant; there is simply a discretion to grant bail, which should be exercised without any preconceptions. In February 1985, the applicant forged four cheques totalling over 80,000 kina in value while occupying the position of operations manager of the National Computer Centre in Papua New Guinea. Its functions included printing Government cheques. The applicant stole four cheque forms from the Centre and used the forms to steal money from the Government. He claims to have done SO partly out of a sense of grievance as to the way the Papua New Guinea administration treated him as an employee and partly because of emotional trouble related to the break-up of his marriage. The applicant told the magistrate that he intended to benefit to no more than the extent of about 10,000 kina, of which sum he thought the Government had unjustly deprived him. The applicant is an Australian citizen who lived in New Guinea from 1973 to 1985. Having committed the offences I have mentioned, he left Papua New Guinea in March 1985. On legai advice, he returned to the Government of Papua New Guinea the sum of 10,316 kina. That, according to the reasons for judgment of the Supreme Court of Justice of that nation, resulted ina total recovery of the stolen money, the rest having been "frozen" in the fake accounts into which the applicant and his accomplice had deposited then. The applicant was arrested in Brisbane for the offences in question in April 1985, ordered to be extradited in October 1985 and sentenced on 17 December 1985, as mentioned above. It appears that he was released from gaol on 1 April 1986. His affidavit says: "On that day, I was advised by my legal advisers to leave the country. On the same day, I was told by the immigration authorities of Papua New Guinea that if I did not leave the country I would be deported. I left that day after clearing both customs and immigration." As it happened, the prosecutor's appeal came on for hearing before KiduC.J., Bredmeyer J. and Barnett J. ain the Supreme Court of Justice on 2 April 1986. Judgment was given on 4 April 1986. The reasons disclosed that the applicant was represented by counsel, that it was common ground that' the five-year head sentence was not able to be challenged and that the argument revolved about the suspension of the sentence. The Court held, in effect, that the case was not one in which there was any proper reason for the suspension and 1t was set aside. Extradition proceedings were set in train and the applicant was arrested here on 23 July 1987. On 22 December 1987 he was committed to prison by the learned Magistrate to await the warrant of the Attorney-General under s.15(6)(d) of the Act. As I have mentioned, there 1s no power in the 1966 Act to grant bail at that stage; hence, it was accepted by the learned Magistrate that there could be no bail. The question whether bail should be granted thus comes before this Court for decision, not by way of an attempt to reverse a view of the learned Magistrate, but afresh. Mr. Keim briefly argued the main points intended to he taken in the principal proceedings. As they were merely sketched, and their acceptance or otherwise may depend on disputed facts, it is undesirable to make other than preliminary comment upon them. Some of the points mentioned as contentions to be advanced at the final hearing were: (i) (121) (ii1) (iv) There was a defect in the request made by the Minister for Justice, Papua New Guinea, to the Attorney-General for Australia for extradition of the applicant, in that that document wrongly identified the Minister of Foreign Affairs of Papua New Guinea. The applicant had lawfully left Papua New Guinea after service of his then sentence and was therefore not liable to extradition. The applicant had pleaded guilty after a discussion with a senior public prosecutor in which it was said, in effect, that the Government would not appeal if a substantial fine and suspended sentence were ordered, and would not oppose an appeal by the applicant if he got more than s1x months; it should be added that the prosecutor in question gave evidence before the Magistrate, giving a rather different version of the conversation. The applicant's lawyers failed properly to inform the primary judge in Papua New Guinea of mitigating circumstances, and in particular that the applicant did not Ge. seek to gain for himself a sum in excess of 10,000 kina, being an amount which he considered he had been unjustly deprived of, by the Public Service authorities in Papua New Guinea. (v) The reasons for judgment of the Supreme Court of Justice (which heard the appeal) were defective, in certain respects which it 1s unnecessary to detail. (vi) To serve a long term of imprisonment in Papua New Guinea would be particularly onerous for the applicant, who has substantial medical problems. I will not set out my views about these contentions. It appears to me desirable to say no more than that the applicant's case may, 1n some respects, well be arguable and that it 1s not considered as a whole a frivolous one. It does not appear to be desirable to try to make a precise assessment of his prospects of success, particularly because there appear to be disputes of fact. It is plain that an important consideration is whether, if bail were granted, the applicant would be likely to answer to it. It appears that he had bail between his first arrest and the extradition hearing (April to October 1985), again between his arrival in Papua New Guinea, when first extradited, and the Court hearing there, and he also has had bail from July to December this year, while awaiting extradition. It is not disputed that he has answered to his bail. On the other hand, he left Papua New Guinea immediately before the hearing of the appeal by the prosecution against his sentence, travelled for a time, and was apparently not relocated for more than a year, a circumstance relied on by Mr. Griffin as suggesting the possibility that the applicant might disappear. Reference was made during the hearing to the possibility chat the extradition proceedings might be prolonged. It appears, however, that a judge 1s available to hear the substantive applications 1m mid-February, and ait does not seem to me to be right, un the whole of the circumstances, that the applicant have bail pending that hearing. It will therefore be ordered that the application to suspend the operation of the order of the learned stipendiary magistrate of 22 December 1987 be refused, the costs to be the respondent's costs in the proceedings. = propose to set times for tne filing of affidavits. Pcertify "pst 'ac 2 5 pages are 2-2 672 - ts roceocs for sudgrers vere 7 0 2D ia Mr. Justice P.ncus stettlot * 'Associate Dated 24, Deceynber 1937