Zoeller v Federal Republic of Germany [1989] HCA 67

High Court of Australia Mason CJ Zoeller v Federal Republic of Germany [1989] HCA 67

ORDER Application for bail dismissed

Cur adv vult

22 December 1989 Mason CJ.

This is an application for bail pending the hearing of the applicant's application for special leave to appeal. The applicant seeks to appeal from an order of the Full Court of the Federal Court (Lockhart, Gummow and Hill JJ) dismissing an appeal from a decision of Einfeld J. Einfeld J dismissed an application by the applicant for review under s 21(1) of the Extradition Act 1988 Cth (the Act) of a decision of the second respondent, Mr Gould, a magistrate sitting as the Central Local Court in Sydney. By virtue of that decision the second respondent ordered that the applicant be committed to prison to await the subsequent determination of the Attorney-General under s 22 of the Act.

The effect of the judgments in the courts below is that the applicant is a person eligible for surrender to the first respondent, the Federal Republic of Germany, which is the extradition country seeking the applicant's surrender in relation to three offences (one taxation offence and two misappropriation offences) which he is alleged to have committed in West Germany. The applicant contends that the Full Court of the Federal Court erred in holding that he was eligible for surrender and that special leave should be granted principally because the Full Court misconstrued and misapplied ss 10 and 19 of the Act in respects that are said to affect matters of principle and the public interest.

I am informed by counsel for the first and third respondents, the third respondent being the Director of Public Prosecutions, that, in view of the provisions of s 22, no steps will be taken to remove the applicant from this jurisdiction until this Court determines the application for special leave to appeal and, in the event that the application succeeds, until the court determines the subsequent appeal. However, counsel for the first and third respondents opposes the grant of bail on the ground that there is a risk that the applicant, if released, will abscond. The applicant has been in custody for a period of 328 days and on bail for a total period of 603 days while the extradition proceedings have been on foot in this country. In that time he has made no attempt to depart the jurisdiction and has at all times complied with the conditions and undertakings relating to his bail. However, counsel submits that there is a greater incentive on the applicant's part to abscond now that the right to appeal has been exhausted.