Zoeller v Federal Republic of Germany [1989] HCA 67; (1989) 90 ALR 161; (1989) 64 ALJR 137; (1989) 45 A Crim R 349 (22 December 1989)

HIGH COURT OF AUSTRALIA

GUENTER ZOELLER v. FEDERAL REPUBLIC OF GERMANY AND ORS
S. 89/005

High Court of Australia
Mason C.J.(1)

CATCHWORDS

HEARING

Canberra
22:12:1989

DECISION

MASON C.J. 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.

2. 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.

3. 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.

4. The applicant contends that s.21 of the Act confers jurisdiction upon me to release the applicant on bail pending the determination of the application for special leave and during the currency of any subsequent appeal. In the alternative, the applicant contends that I have inherent jurisdiction to make the order which he seeks. Moreover, the applicant argues that he does not have to show exceptional or special circumstances in order to secure such an order.

5. Section 21 of the Act makes specific provision for the making of an order that the person sought to be extradited be kept in custody or released on bail pending the outcome of his application for review or the hearing of his appeal. Sub-section (1) provides that where a magistrate determines under s.19(9) or (10) that a person is or is not eligible for surrender to an extradition country, the person or the extradition country may, as the case may be, within fifteen days apply to the Federal Court or the Supreme Court of a State or Territory for a review of the magistrate's order. Section 21(3) then gives a right of appeal to the Full Court of the Federal Court or the Supreme Court, as the case may be, from the order made on the application for review. Section 21(5) then prohibits the High Court from granting special leave to appeal against an order of a Full Court under sub-s.(3) if the application for special leave is made more than fifteen days after the day on which the order of the Full Court is made.

6. In this context s.21(6) provides:
"Where the person or the extradition country:
(a) applies under subsection (1) for a
review of an order;
(b) applies under subsection (3)
against an order made on that
review; or
(c) appeals to the High Court against
an order made on that appeal;
the following provisions have effect:
(d) the court to which the application
or appeal is made shall have regard
only to the material that was
before the magistrate;
(e) if, because of the order referred
to in paragraph (a), (b) or (c), as
the case requires, the person has
been released - the court to which
the application or appeal is made
may order the arrest of the person;
(f) if:
(i) because of the order referred
to in paragraph (a), (b) or
(c), as the case requires,
the person has not been
released; or
(ii) the person has been arrested
under an order made under
paragraph (e);
the court to which the application or appeal is made may:
(iii) order that the person be kept
in such custody as the court
directs; or
(iv) order the release on bail
of the person on such terms
and conditions as the court
thinks fit;
until the review has been conducted or the appeal has been heard;
(g) if the court to which the
application or appeal is made
determines that the person is
eligible for surrender, within the
meaning of subsection 19(2), in
relation to an extradition offence
or extradition offences - the court
shall include in its judgment on
the review or appeal a statement to
that effect specifying the offence
or offences."
7. The applicant contends that the words in sub- s.(6)(c) "appeals to the High Court" should be read as including an application for special leave to appeal. I have difficulty in accepting this submission. The reference in sub-s.(5) to an application for special leave to appeal indicates that the Parliament was alive to the difference between an application for special leave to appeal and an appeal to this Court. That being so, I can see no justification for reading the words in sub-s.(6)(c) otherwise than in accordance with their ordinary meaning. So read, the provision proceeds according to the rational view that the Court is empowered to order the release of an applicant on bail only if it concludes that the case has that special character that justifies the grant of special leave and the applicant appeals pursuant to that grant. Unless the Court makes such a grant, the appeal process is exhausted with the result that, in cases such as the present, there is a final order committing the applicant to prison. In principle, such an order should stand unless the Court determines that special leave to appeal should be granted, in which event, an appeal being instituted, the jurisdiction of the Court to grant bail arises. That, as it seems to me, is the way in which s.21(6) is intended to operate.

8. It may be objected that this interpretation of s.21(6) leaves a jurisdictional gap in the case where it is obvious that special leave will be granted. The existence of the Court's inherent jurisdiction is an answer, if one be needed, to this objection. Accordingly, I turn to consider the application in the light of the inherent jurisdiction.

9. It has been said that this Court will grant bail only in exceptional circumstances: Re Cooper's Application for Bail (1961) ALR 584; Hayes v. The Queen (1974) 48 ALJR 455. These statements have been made in the context of appeals against convictions which involve considerations not relevant to the present case. Even so, Brennan J. has expressed the tentative view that this Court possesses no jurisdiction to grant bail pending an application for special leave to appeal against an order dismissing an application for leave under the Extradition (Commonwealth Countries) Act 1966 (Cth) unless the order is required to save the application for special leave from futility: Narain v. Director of Public Prosecutions (1987) 61 ALJR 317, at p 318; 71 ALR 248, at p 250. The order sought in the present case cannot be justified on that ground.

10. However, it is not necessary for me to base my decision on that view of the inherent jurisdiction. It may be that the jurisdiction is exercisable in other cases that are exceptional where, for example, the grant of special leave is irresistible and the appeal is bound to succeed as a result of a recent decision of this Court. Be this as it may, it can scarcely be supposed that the jurisdiction is enlivened by something less than exceptional circumstances. At the point when bail is sought pending the hearing of a special leave application, the ordinary processes of appeal have been exhausted; they have resulted in a final order committing the applicant to prison. The process of appeal revives only in the event that this Court exercises its jurisdiction, an extraordinary jurisdiction, to grant special leave to appeal. There can be no assumption that the Court will, or is likely to, make such a grant. Hence, to justify an order for bail, something exceptional needs to be shown.

11. The applicant submits that his record of punctilious compliance with the conditions of bail granted in the Federal Court, when taken with other matters, demonstrates that there is no risk of his absconding. He is married to an Australian; he has been living here since 1984; he has a permanent home here; and it is said that he has strong local community ties. His wife has given an undertaking to pay $100,000 in the event that he does not answer to his bail and is willing to continue that undertaking. Moreover, the time that he has spent in custody, which is substantial, would no doubt be taken into account by a West German court in assessing the penalty to be imposed in the event that he is convicted of the offences charged against him. However, that does not enable me to reach any relevant conclusion in the present application. It seems to me that these factors, even when taken together, do not constitute special circumstances which would enliven the Court's jurisdiction to grant bail.

12. What is of importance is that the magistrate's determination adverse to the applicant was upheld by Einfeld J. and by the unanimous decision of the Full Court of the Federal Court. Furthermore, the case for special leave is by no means irresistible; at this stage it does not inspire me with a confident impression that it will be granted.

13. In these circumstances I have come to the conclusion that the application should be refused. Of course, in the event that special leave is granted the applicant will be at liberty to make an application under s.21(6)(c) of the Act. It is appropriate that I should make an order expediting the hearing of the special leave application to enable it to be listed for hearing on 16 February 1990.

14. In the result I order that the application for bail be dismissed and I order that the hearing of the special leave application be expedited.

ORDER

Application for bail dismissed.

Order that the hearing of the application for special leave to appeal be expedited.