FEDERAL COURT OF AUSTRALIA McDade v United Kingdom [1999] FCA 1579 EXTRADITION – application for bail – whether "special circumstances" to justify release – decision of primary judge dismissing application – applicant previously on bail during high risk pregnancy of wife – pregnancy successfully completed – medical evidence of wife's post natal depression – whether evidence sufficient to establish "special circumstances". WORDS &PHRASES – "special circumstances" Extradition Act (1988) (Cth) s21(6)(f)(iv) R D NICHOLSON J 2 OCTOBER 1999 KARRATHA (BY VIDEO LINK TO PERTH) Western Australia IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 13 OF 1999 BETWEEN: STEPHEN GERARD McDADE Applicant UNITED KINGDOM First Respondent AND: PETER MALONE Second Respondent JUDGE: R D NICHOLSON J DATE OF ORDER: 2 OCTOBER 1999 WHERE MADE: PERTH THE COURT ORDERS THAT: (1) The applicant's notice of motion dated 1 October 1999 be refused. (2) The District Registrar be requested to list the appeal from the decision of Carr J as a matter of urgency. (3) The applicant pay the first respondent's costs to be taxed. 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 W 13 OF 1999 BETWEEN: STEPHEN GERARD McDADE Applicant AND: UNITED KINGDOM First Respondent PETER MALONE Second Respondent JUDGE: R D NICHOLSON J DATE: 2 OCTOBER 1999 PLACE: PERTH REASONS FOR JUDGMENT 1 This is an application for grant of bail pursuant to s 21(6)(f)(iv) of the Extradition Act (1988) (Cth). 2 On 15 February 1999, I refused a motion on behalf of the applicant for his release on bail pending the hearing of an application for review. 3 On 26 March 1999, I made an order releasing the applicant on bail on certain terms and conditions until his application for review was heard. 4 The applicant's application for review was heard by Carr J on 24 April 1999. The application was dismissed with an order that it not take effect until 1 October 1999. Accordingly, bail terminated at that time and the applicant is now in custody. 5 In reasons given on 15 February 1999 and 26 March 1999, I referred to the jurisdictional pre-condition to the grant of bail established by s 21(6)(f)(iv) of the Extradition Act – namely that "special circumstances" must be established. In those earlier reasons I have referred to the high onus which Parliament requires be satisfied as a consequence of that requirement. 6 In support of the present motion I have a further affidavit of the applicant. There it is stated the applicant is appealing the decision of Carr J. In relation to his personal circumstances, the applicant deposes he and his wife have recently had a child born six weeks prematurely. His wife was hospitalised for six weeks prior to the birth and is now said to be suffering post-natal depression. Consequently he states he is left to care for the family. This requires him to attend to the daily duties at home and to care for his son Glenn, the new baby Fiona and his wife. He asserts, by way of argument, that as he is vigorously defending his right to remain in Australia, any attempt by him to abscond would be fatal to his application to remain in Australia. 7 For the first respondent, it is submitted that the circumstances show the applicant is capable of absconding. Further it is contended on behalf of the first respondent that there will be an inevitable effect on the applicant's family is an unfortunate consequence of incarceration. It is also submitted there is an extra incentive for the applicant to abscond because the application for review sought by the applicant was dismissed. 8 In reasons given by me on the two prior occasions, I have, in accordance with the authorities, looked at the totality of evidence and stated it is not appropriate to segment the process unnecessarily. 9 On 26 March 1999 I found that the following constituted "special circumstances": "taking the circumstances disclosed from the prior application which still pertain today and adding to them the circumstances in relation to the pregnancy of the applicant's wife; the high risk condition of it; the treatment which it requires; the part which the applicant as a husband could play in that treatment; the developments in relation to income earning by the family; the evidence of stress on the applicant's son and on the applicant himself; the totality of those circumstances constitute special circumstances. I consider that the high onus which is required to be met is established by those facts; that is, there are "special circumstances" justifying the course of granting bail." 10 In the present application the high risk pregnancy condition of the applicant's wife no longer pertains. However there are the added circumstances of her alleged post-natal depression as well as the decision of Carr J dismissing the applicant's application for review. 11 The affidavit evidence of the applicant's wife was that she has been suffering from severe depression since the birth of Fiona. She testified she had visited the Duncraig Medical Centre and saw Dr. McMullan who diagnosed the condition. She had an appointment to see Dr. Taylor at the Psychiatry Clinic at Osborne Park hospital on 1 October 1999. She deposed that she desperately needed her husband's assistance in relation to domestic work and emotional support. She deposed that her constant fatigue and inability to perform basic household tasks and the need to look after her son Glenn and the baby Fiona would create unbearable pressure for her. 12 It is not explained in the evidence by the applicant's wife why her consultation with the Osborne Park Psychiatry Clinic has been deferred. Furthermore her evidence in cross-examination was that although she is distressed, she is only taking Panadol. Unanswered is the prospect that if she took medication she would be restored to a satisfactory condition of health within six to eight weeks. In these circumstances I do not find that the evidence of her current medical condition has the same high compellability as the evidence before me on 26March 1999 relating to the high risk pregnancy factor. 13 In my opinion the decision of Carr J does increase the possibility that absconding would become an option for the applicant. The effect of the decision of Carr J is that the court has found the applicant has no rights and this reinforces the first respondent's version of the facts. 14 Also unexplained on the evidence is why the applicant's wife and the applicant cannot obtain assistance in their domestic life from the sisters and brothers of the applicant who live in Perth. I am prepared, however, to accept the evidence of the applicant's wife that the son Neil is unable to assist her, although he has no mental or physical disability. 15 Sadly it is true that family pressure is frequently the effect of the making of orders which result in incarceration. That incarceration follows from the conduct of one of the members of the family. The result is that the situation must have been anticipated and the position is that the applicant has contributed to the present emotional state of his family. 16 I am very conscious that Parliament asks for "special circumstances" to be shown. Something out of the ordinary is required. The present evidence of the medical condition of the applicant's wife following the successful completion of her pregnancy is not evidence which discharges that onus. In my opinion "special circumstances" are not established. 17 For these reasons I consider that the jurisdictional pre-condition to enable consideration of the application has not been made out. 18 However it is clearly important that the applicant has his rights determined by the Full Court of the Federal Court on appeal as a matter of urgency so that he or his family do not continue in any doubt as to his future. Therefore I will direct that the District Registrar list the appeal as a matter of urgency. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D NICHOLSON J. Associate: Dated: 2 October 1999 Counsel for the Applicant: K Burgoyne Solicitor for the Applicant: Julie Wager Counsel for the Respondent: P Bevilacqua Solicitor for the Respondent: Commonwealth Director of Public Prosecutions Date of Hearing: 2 October 1999 Date of Judgment: 2 October 1999