Federal Republic of Germany v Schlieske

Federal Court of Australia|1987-03-09|Before: Sweeney J, French J

EXTRADITION - pending appeal to Full Court ~- joinder of Director of Public Prosecutions - role of Director of Public Prosecutions in extradition proceedings - expedited appeal - bail application pending appeal ~ power of single judge - no power under s.23 Federal Court of Australia Act ~- whether power under 0.53 r.35 - whether "criminal case" - principles governing exercise of power to release on bail - policy of Extradition (Foreign States) Act 1966 - anomalous provisions relating to bail - exceptional

circumstances required to warrant grant of bail pending appeal -

Federal Court of Australia Act ss. 23, 25, 59, 59(2)(£) Extradition (Foreign States) Act ss.17(6), 18A(6) Federal Court Rules 0.52 r.35

Federal Republic of Germany v Schlieske (unreported Sweeney J. 24/10/86) (

Amrit Lal Narain v Director of Public Prosecutions (unreported Full Court 9/2/87)

ARTHUR JAMES HEMPEL and LAURENCE ETHEREDGE v KENNETH MOORE WAG 125 of 1986

JUDGE MAKING ORDER: FRENCH J. DATE OF ORDER: 9 MARCH 1987 WHERE MADE: PERTH

The Director of Public Prosecutions be joined as second respondent to the appeal.

The appeal be expedited to the extent necessary to enable it to be listed at the sittings of the Full Court in Perth commencing 19 May 1987.

Appellants to pay the second respondent's costs of the

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

NO. WAG 125 of 1986 ON APPEAL FROM MR JUSTICE BURCHETT BETWEEN: ARTHUR JAMES HEMPEL and LAURENCE ETHEREDGE Appellants and KENNETH MOORE Respondent

On 29 August 1985 the appellants sailed the vessel Orionia from the port of Eilat in Israel and travelled in it to

Albany in Western Australia where they arrived on 22 January 1986.

According to Israeli authorities they were, by taking the boat, guilty of stealing it contrary to s.393(2) of the

The day following their arrival in Albany the appellants were arrested by officers of the Australian Federal Police pursuant to warrants issued under s.16 of the Extradition (Foreign

They were taken into custody and after an appearance in the Albany Court of Petty Sessions, were remanded in custody to

appear in the Perth Court of Petty Sessions on 31 January 1986.

They appeared in the Perth Court of Petty Sessions on 31 January and were remanded for a further 7 days. On 7 February they again appeared in that Court and were then released on bail

to appear on 20 February. The release on bail was pursuant to

sub-ss. 17(2) and (2A) of the Extradition (Foreign States) Act.

The object of these remands was to enable the State of Israel to send a formal requisition for their surrender pursuant to the extradition treaty between Australia and Israel which is set out in a schedule to the Extradition (State of Israel)

On 10 March 1986 following the transmission of the requisitions the Attorney-General issued notices pursuant to s.15(1)(b) of the Act informing any magistrate before whom the appellants might be brought, of the making of the requisition and, that in the opinion of the Attorney, they were liable to be surrendered to the State of Israel and that the offence to which

the requisition related was not of a political character.

Magistrate before whom the appellants then appeared.

8 May 1986 was fixed as the date for a hearing to determine whether or not the appellants should be committed to prison to await the warrant of the Attorney-General for their surrender to the State of Israel pursuant to sub-s. 17(6) of the

The matter came on then before the first respondent, Mr

Moore S.M., and a further adjournment request was refused.

The hearing proceeded on 14 and 15 July, 31 July and 1 August when Mr Moore committed the appellants to prison pursuant

At the hearing the Director of Public Prosecutions appeared by senior counsel to conduct the matter pursuant to

para. 6(1)(k) of the Director of Public Prosecutions Act 1983.

evidently been in custody continuously since 1 August.

decision in this court pursuant to the Administrative Decisions

(Judicial Review) Act and also pursuant to s.18 of the Extradition

The application named the Magistrate as the respondent. At the hearing before Burchett J., senior counsel instructed by the Director of Public Proscutions appeared but the Director was

The applications were heard on 21 August and his Honour

He also made an order pursuant to sub-s.18(3) of the Act

On 17 December 1986 the appellants instituted an appeal

to the Full Court of this court from the decision of Burchett J.

The appeal proceedings have progressed to the point where the index to the appeal papers was settled before the Deputy

The Deputy Registrar has advised the parties that the earliest date on which the matter can be listed 1s 19th May 1987

The first by the Director of Public Prosecutions, seeks an order that he be added as second respondent. It also seeks an

The second, brought by the appellants, also seeks an order joining the Director of Public Prosecutions and, an order

releasing the appellants on bail subject to conditions.

On the question of joinder the power of a single judge to add a person as a party to a pending appeal, is to be found in

"(1) Each party to the proceeding in the court appealed from who is affected by the relief sought by a notice of appeal or is interested in maintaining the judgment under appeal shall be joined as a party appellant or respondent to the appeal.

(2) The Court or a Judge may order the addition or removal of any person as a party appellant or respondent to an appeal.

(3) A person shall not be made an appellant without his consent."

In support of his application to be joined as a respondent the Director of Public Prosecutions invokes paragraph

6(1)(k) of the Director of Public Prosecutions Act 1983:-

(k) to appear in proceedings under the Extradition (Commonwealth Countries) Act 1966 or the Extradition (Foreign States) Act 1966;"

This must be read with s.15 of the Act which in its

(1) anstituted, taken over or carried on by the Director;

(i1) to which the Director is, or is seeking to become, a party;

(iii) in which the Director intervenes or seeks to intervene; or

(b) an inquest or inquiry conducted under a law of the Commonwealth, being an inquest or inquiry in which the Director is assisting the coroner; or

(c) proceedings by way of appeal from, or otherwise arising out of proceedings of a kind referred to in paragraph (a) or an inquest or inquiry of the kind referred to in paragraph (b),

the Director may appear in person or may be represented-

{d) by a member of the staff of the Office who is a legal practitioner;

This provision empowers the Director in extradition proceedings to appear in person or be represented in the exercise

It does so in language that suggests a distinction between proceedings in which he is a party (sub-para.15(a)(i)) and

That distinction may perhaps be explained by resort to Paragraph 1 of Article XVIII of the treaty between Australia and the State of Israel concerning extradition, which in a form

representation of the requesting State in any legal proceedings relating to the extradition of the person whose extradition is requested and shall otherwise represent the interests of the requesting State."

The appearance of the Director of Public Prosecutions in such proceedings is one way in which Australia may discharge that

It does not mean that he necessarily acts as counsel or solicitor for the requesting State. Such a role is. only appropriate where the requesting State is a party to the

There is provision under s.17A of the Act for the requesting State to apply to this court or the Supreme Court of the relevant State or Territory for review of an order of a magistrate releasing a person under sub-s.17(6). In such a case

the requesting state is a party to the proceedings. In Federal

Republic of Germany v Schlieske (unreported Sweeney J. 24/10/86) for example, the record shows that the Director of Public

On the other hand in Amrit Lal Narain v Director of Public Prosecutions (Unreported Full Court 9/2/87) the Director was named as a respondent in proceedings by way of appeal from a Judgment dismissing an application for review of a magistrate's

decision under the Extradition (Commonwealth Countries) Act 1966.

Hls appearance in proceedings where the requesting state is not a party provides a mechanism, although not the only possible mechanism, for discharge of the treaty obligation under

It might be said that the procedure is somewhat clumsy and that the various roles of the Director may generate confusion in practice. But that is a matter to be considered by the

On the basis outlined above the Director does in my opinion, have a legitimate interest in being joined as a party in

Further, unless and until he is joined the only respondent is the Magistrate, the relevant decision maker whose

active participation in the support of his own decision would,

having regard to his office and the nature of the proceedings, be

For these reasons I order that the Director of Public

Prosecutions be joined as second respondent to the appeal.

The second part of the Director's motion seeks an order

In that regard my inquiries indicate that the appeal cannot be heard by a Full Court prior to May without considerable difficulty which might only be justified if the matter were one of

The appellants oppose the application for an expedited hearing, in part it seems on the basis that counsel of their choice may, by reason of academic teaching commitments, be unable to appear at an expedited hearing outside the State of Western

Recognising the importance and urgency of the matter, it is nevertheless able to be listed for hearing at the sittings of the Full Court to be held in Perth commencing on 19th May. The appellants whose liberty is at stake are opposed to an earlier hearing. I am not persuaded that from the respondent's point of view the matter is so urgent that it must be listed for hearing

In these circumstances I will order that the appeal be expedited to the extent necessary to enable it to be listed for

hearing at the sittings of the Full Court in Perth commencing 19

This leaves for consideration the appellants' motion for an order that they be released on bail subject to such conditions

Does the court have power to release the appellants on bail?

Upon what principles should the exercise of such power be approached?

The appellants rely upon s.23 of the Act as providing a source of power able to be exercised by a single judge to make an order which would have the effect of releasing them on bail. No

Section 23 although general in its terminology, appears

in Division 1 of Part III of the Act under the heading "Original

There is only one reported case which I have been able to find in which injunctive relief was given under s.23 pending

In Bercove v Hermes (No. 2) (1983) 51 ALR 105 the appellant had instituted an appeal to the Full Court following the dismissal by Morling J. of his application for review of a decision of the Disciplinary Appeal Board established under the

The Board's decision had confirmed a recommendation to the Public Service Board by the Chief Officer of the Attorney

General's Department that the appellant be dismissed from the

The appellant sought' an interlocutory injunction restraining the Public Service Board from considering' the recommendation until determination of the appeal. Toohey J.

"Tt is true that s.23 finds its place in div.l - original jurisdiction of Pt.III of the Federal Court Act but, as I understand it, it is original not appellate jurisdiction that I am being called upon to exercise."

It does not appear from the report precisely how it was

that the appellant invoked the original jurisdiction of the court.

In the present case the appellants' motion is brought in

In the exercise of the powers conferred upon it in its

appellate jurisdiction by s.28 of the Act, the court may have

occasion in making an order under s.28(1)(b), to make an order of a kind that could have been made under s.23 in its original

But there is on the face of it no power in a single judge to make interlocutory orders under s.23 in pending appeal

proceedings. Sub-section 25(1) of the Act provides that:-

"The appellate jurisdiction of the court shall subject to this section and to the provisions of any other Act be exercised by a Full Court."

There is no relevant exception to that provision which would enable a single judge to exercise in the appellate

jurisdiction of the court the powers conferred by s.23.

Counsel for the appellants relied in the alternative on

(1) In criminal cases an appellant may present his case and his argument to the Court in writing if he so desires, and, if he does so, it is not necessary for him to appear or to be represented upon the hearing of the appeal.

(2) An appellant who is in custody 1s not entitled to be present on the hearing of his appeal, or of his application for leave to appeal, without the leave of the Court.

(3) The Court or a Judge may, upon such terms as it thinks fit, admit an appellant to bail pending the hearing of his appeal or his application for leave to appeal."

There is some basis for the view that the rule is untended to apply to appeals to the Full Court against the convictions or sentences of persons convicted of offences in the

Section 59 of the Federal Court of Australia Act confers

upon the judges of the court power to make rules of court.

While sub-s.59(1) confers that power in general terms, sub-s.59(2) sets out some 20 subjects for which the rules may make

Paragraph 59(2)(f) specifically refers to "the custody

The appellants are not "convicted persons". They have been committed to prison pending their surrender to the State of Israel where they will, if the surrender proceeds, be tried for

Counsel for the appellants however referred to Amand v

Home Secretary [1943] AC 147, 156 and Zacharia v Republic of Cyprus [1963] AC 634, 657.

In the Amand case a citizen of the Netherlands who had lived in England for 14 years was arrested in that country for

being absent without leave from the Netherlands Army.

He was brought before a Magistrate to be handed over to

The question arose whether the Court of Appeal had jurisdiction to hear an appeal from the decision of the Divisional

appealed from was "a criminal cause or matter" within paragraph

31(1)(a) of the Supreme Court of Judicature (Consolidation) Act 1925.

The House of Lords affirmed the decision of the Court of Appeal that it lacked jurisdiction as the judgment was in a

"If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal."

"The order may not involve punishments by the law of this country, but if the effect of the order is to subject by means of the operation of English law the persons charged to the criminal jurisdiction of a

foreign country, the order is, in the eyes of the English law for the purposes being considered, an order

Similar views were expressed by Lord Porter at 164.

In Zacharia v Republic of Cyprus (supra) there was no

question that the appeal to the House of Lords from the Divisional Court decision on an application for a writ of habeas corpus was

The case proceeds upon the basis of that proposition and

If extradition proceedings are properly characterised as criminal cases, the application to them of the judicial review

"It is clearly established that matters such as prohibition, certiorari and mandamus in relation to causes or matters which are criminal are themselves criminal causes or matters excluding this court from exercising appellate jurisdiction."

R v Army Council, Ex parte Sandford (1940) 1 K.B. 719

To construe 0.53 r.35 only by reference to the head of

rule making power in paragraph 59(2)(f) of the Federal Court of

Australia Act is I think to take an unnecessarily restrictive

While the paragraph itself carries the limitation that the rule making power conferred by it relates to the custody of "convicted persons", 1t is part of a facultative provision in

sub-s.59(2) which does not derogate from the general rule making

That flows from the opening words of sub-s.59(2) - "in

The construction of 0.52 4.35, unconfined by a restrictive reading of s.59, may be approached by reference to the

The ordinary meaning of the words directs the reader to the function of the rule which 1s to enable the court to deal with

an appellant in a criminal case where the appellant is in custody.

Such a person has no right of personal appearance but a facility for written submission enables the court to consider his

If in custody, he may by leave of the court appear. In the case of an appeal against conviction or sentence that appearance can be secured by an order for production of the

The facility for the court to admit an appellant to bail is a further power which, on a literal reading of the rule, does not depend upon any distinction between convicted and unconvicted

It does, I think, operate within the constraint that the case must be a "criminal case". That is a limitation to be

The decisions in Amand, Zacharia and R v Army Council; Ex parte Sandford (supra) support characterisation of the present

proceeding as a "criminal case" for the purpose of the rule.

Counsel for the Director contended nevertheless that the

provisions of the Extradition (Foreign States) Act 1966 formed a

code which excluded the possibility of a bail order at this stage.

It is true that the Act makes only limited provision for release on bail after a magistrate has found the person concerned

Paragraph 17(6)(d) empowers a magistrate, if satisfied that a person is liable to be surrendered to the requesting state, to either commit him to prison to await the warrant of the Attorney General or in certain circumstances to grant bail pending

(i) Who has been charged with an offence that is alleged to have been committed in Australia, being

(ii) Who has been convicted in Australia of an offence and is not in custody in respect of that offence.

The limitation thus imposed upon the magistrate's power is difficult to understand. It would seem that a fugitive is better off if he has managed to break the law in Australia than if

Further, it appears to be ae result of paragraph 17(6)(d)(ii) that it is not necessary that the offence for which he has been convicted should have attracted any custodial disposition at all. On that basis, conviction for a parking offence would render him eligible for the exercise of the

A similarly curious limitation operates in relation to the power conferred on this court by sub-s.18A(6) to order the release on bail of a person held in custody pursuant to the Act. For the only persons in respect of whom that power may be exercised under sub-s.(6) are those for whom an order has been made granting bail in respect of an offence alleged to have been committed in Australia or in respect of an offence of which the

Burchett J. has already commented in these proceedings

on the anomalous position that arises from that limitation -

Hempel and Etheredge v Moore (unreported Burchett J. 10/12/86).

Metropolitan Remand Centre (1986) 8 FCR 358 at 364 that there is no provision under the Extradition (Foreign States) Act for a

court reviewing the magistrate's decision under s.18 of the Act to suspend the operation of the order or admit the fugitive to bail

As his Honour pointed out however, where as in the present case, review is also sought under the Administrative Decisions (Judicial Review) Act, the power conferred on this court by s.15 of that Act appears to be sufficient to enable it ina proper case to suspend the operation of a committal order upon

It may be right as counsel for the Director of Public Prosecutions submitted, that the provisions of the Act preclude the possibility of the grant of bail pending review where review

proceedings are brought in a state or territory Supreme Court.

In Re: Groves [1973] Qd.R. 310 W.B. Campbell J. held that the inherent jurisdiction of the Supreme Court of Queensland to grant bail does not extend to the case where a person is in

custody under the Extradition (Commonwealth Countries) Act 1966.

"It seems to me that the Commonwealth has legislated generally and has covered the whole field in relation to the surrender of fugitive offenders between the Commonwealth of Australia and other Commonwealth countries. Consequently, the States have no powers to legislate in that field."

Rademeyer (1985) 1 NSWLR 285 when he held that the Bail Act 1978

could not apply to a person subject to extradition proceedings.

The availability in this court of challenge to the committal decision by way of judicial review and subsequent appeal attracts an inventory of measures provided by Commonwealth law pursuant to which the subject may seek release pending the outcome

In the original jurisdiction of the court these measures include suspensory orders under s.15 of the Judicial Review Act and if that be inapplicable in a particular case, the all purpose

powers conferred by s.23 of the Federal Court of Australia Act.

concluded, 0.52 r.35 is available to authorise release upon bail.

There is nothing 1n my opinion about the availability of

these provisions which is inconsistent with the provisions of the

Nevertheless judicial review at first instance, and a fortiori, the appeal process in judicial review proceedings

involves the court in a supervisory and not a substitutive role.

Commissioner of Taxation (unreported French J. 4/2/87) the

availability of judicial review proceedings is not designed to

affect the substantive legislative polic1es expressed by the

In my opinion the scheme of the Act, whatever criticisms may be made of it, is consistent with a restrictive approach to

the granting of bail after a committal order has been made.

Reported cases on the criteria historically applied to applications for bail after the making of a committal order for extradition are scarce. There is however some indication of a

The report of the judgment of Lord Hewart CJ in R v Phillips (1922) 38 TLR 897 on an application for bail after committal and pending the provision of further information from the requesting state, includes the following passage at 898:-

"He thought that both the points urged on behalf of Phillips failed. In his view it was not the law that the King's Bench Division could not refuse bail. Nor did he think that cases of extradition were on the same footing as cases in this country. It was not a case of treaties extending to foreign countries rights denied to our own subjects. But we had entered into obligations and the strictness with which we fulfilled them was measured not by tenderness to the foreign country but by what we owed to our own honour. That did not mean that bail was to be refused in all cases; it was a matter for the discretion of the learned magistrate; it only meant that there were special grounds for care and caution."

Darling and Branson JJ agreed. - See also Re : Gifford

In my opinion the policy of the Act as derived from the legislative scheme requires that bail not be granted after review

and pending appeal other than in exceptional circumstances.

In the present case Burchett J. concluded that it was not an appropriate case in which to grant bail even if the power exists. I would, in any event, be reluctant to go behind that

view unless some fresh material by way of evidence of exceptional

In their affidavit in support of their application for bail the appellants say that their continuing confinement at the Canning Vale Remand Centre makes it extremely difficult for them to confer with legal advisers in relation to other proceedings that they have before the Administrative Appeals Tribunal as well

They depose that they are contemplating other proceedings against the Attorney General both for compensation for

wrongful delivery of their ship to parties not entitled to receive

it and also separate proceedings under s.14 of the Extradition

(Foreign States) Act. These matters, they say, are difficult and

At a glance

Court

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Judgment (221 paragraphs)

Parties

Cases Cited (3)