Henry Peter Holt and Christine Mary Holt v David Hogan [1993] FCA 463;

Henry Peter Holt and Christine Mary Holt v David Hogan [1993] FCA 463; - FCA 1993 case summary — Zoe

[18]

1. That CHRISTINE HOLT be admitted to bail on the following

conditions:-

(1) The applicant enter into a recognisance in the sum of

$100,000.00 in a form to be approved by the Director

of Public Prosecutions with ROSS WINSTON TISCH and

DESMA JOY KENMAN as sureties with an undertaking

before a Justice of the Peace of $100,000.00 and

subject to her:-

(a) Surrendering any current Australian, New Zealand

or other passport presently in her possession to

the Director of Public Prosecutions;

(b) Not applying for the issue to her of any

Australian, New Zealand or other passport or

other document of travel;

(c) Residing at 30 Edinburgh Drive, Bethania Waters

or at such other address as may be approved in

writing by the Director of Public Prosecutions,

such approval to be obtained prior to the taking

up of such residence;

(d) Not attending at any port of international departure;

(e) Not leaving the State of Queensland without the

prior written approval of the Director of Public Prosecutions;

(f) Reporting once daily between the hours of 8.00

a.m. and 4.00 p.m. to the Officer-In-Charge,

Australian Federal Police, Corner of Marie and

Graham Streets, Milton, or as otherwise agreed

in writing by the Director of Public Prosecutions;

(g) Prosecuting her appeal with all reasonable dispatch;

(h) Appearing personally at the hearing of the order

to review at the date and time to be directed by

the District Registrar and surrendering herself

into the custody of the Court and abiding by any

further order of the court as to custody.

(2) There be liberty to the Director of Public

Prosecutions to apply for revocation of bail in the

event of any material change of circumstances giving

rise to a risk that the applicant will not appear on

the order to review, including the execution of any

plea agreement with the United States Department of Justice.

2. That the application of HENRY HOLT for bail be dismissed,

reserving to him leave to re-apply for bail in the event of

the hearing of his appeal not proceeding on 18 October, 1993

without default on his part.

[29]

"The reference to 'special circumstances' in the

context of this legislation imports a

presumption against the grant of bail and puts

the onus on the applicant to demonstrate that an

order for bail would be justified. There are

two stages in the decision-making process under

s. 21(6)(f). The first involves the threshold

question whether there are special circumstances

of the kind contemplated by the section. If

that question is answered in the affirmative,

the court must then consider whether, in the

exercise of its discretion, it should make an

order for release of the applicant on bail and,

if so, upon what terms or conditions.

The first question, whether there are special

circumstances, involves a value judgment about

which of the range of circumstances favouring

the grant of bail are to be regarded as special

and which are not. That is a judgment to be

made by reference to two criteria; the general

purpose of the provision imposing the

requirement and broader community standards.

The purpose of the special circumstances

requirement imposed by s.21(6)(f) is apparent

from the nature of the legislation and the terms

of the explanatory memorandum relating to the

1987 Bill and the equivalent provisions in s.

15. It is to reduce what is perceived as 'the

very high risk of persons sought for

extraditable offences absconding'. It looks in

particular to the case where a person is in

Australia to avoid arrest in the country in

which he is alleged to have committed the offence.

.....

In my opinion it can never be regarded as

anything other than a special circumstance that

a person should have to spend a year in prison

unconvicted of any offence. A presumption in

favour of liberty and against deprivation of

liberty without just cause runs through the

traditions of the common law which Australia has

inherited from the United Kingdom. Article 39

of the Magna Charta provides that:

'No Free-man's body shall be taken, nor

imprisoned, nor disseised, nor outlawed,

nor banished, nor in any ways be damaged,

nor shall the King send him to prison by

force, excepting by the judgment of his

Peers and by the Law of the land'.

And Article 9 of the International Covenant on

Civil and Political Rights, to which Australia

is a party, provides:

'1. Everyone has the right to

liberty and security of person. No one

shall be subject to arbitrary arrest of

detention. No one shall be deprived of

his liberty except on such grounds and in

accordance with such procedure as are

established by law.

2. Anyone who is arrested shall

be informed, at the time of arrest, of the

reasons for his arrest and shall be

promptly informed of any charges against him.

3. Anyone arrested or detained on

a criminal charge shall be brought

promptly before a judge or other officer

authorized by law to exercise judicial

power and shall be entitled to trial

within a reasonable time or to release.

It shall not be the general rule that

persons awaiting trial shall be detained

in custody, but release may be subject to

guarantees to appear for trial, at any

other stage of the judicial proceedings,

and, should occasion arise, for execution

of the judgment.

4. Anyone who is deprived of his

liberty by arrest or detention shall be

entitled to take proceedings before a

court, in order that that court may decide

without delay on the lawfulness of his

detention and order his release if the

detention is not lawful.

5. Anyone who has been the victim

of unlawful arrest or detention shall have

an enforceable right to compensation'.

The reference to the latter article is not

intended to suggest that Mr. Schoenmakers'

detention has been unlawful but rather serves as

an indication of the value placed by Australia,

as part of the international community, on the

liberty of the individual and the presumption in

favour of that liberty. That presumption must,

of course, give way to specific statutory

provisions. But where those provisions do, as

in the case of the Extradition Act, allow for

normative judgments of the special circumstances

under which bail may be granted, then the

presumptions arising under the common law and in

relevant international instruments may be taken

into account.

I appreciate that the law has generally taken a

restrictive approach to the grant of bail after

an order has been made committing a person to

prison pending surrender to the requesting

country: see R. v. Phillips (1922) 38 TLR 987;

Re Gifford (1930) 1 DLR 800 at 802; Hempel v.

Moore (1987) 13 FCR 480 at 488. This

restrictive approach has been applied in

Australian cases: see Hempel (sic) v. Moore

(supra) and Zoeller v. Federal Republic of

Germany [1989] HCA 67; (1989) 64 ALJR 137. But each case turns

on its own facts".

[33]

"The relevant principles governing the

determination of the existence of special

circumstances in this branch of the law are

discussed in more than one reported case; but

it is sufficient for present purposes to refer

to the judgment of Mason CJ in Zoeller v.

Federal Republic of Germany [1989] HCA 67; (1989) 90 ALR 161.

In that case Mr Zoeller applied to the High

Court of Australia for bail pending the hearing

by the High Court of his application for special

leave to appeal from an order of the Full Court

of this Court. The case had commenced with the

magistrate ordering the committal to prison of

the applicant to await subsequent determination

of the Attorney-General of the Commonwealth

under s. 22 of the Act. Section 21(6) of the

Act provided at that time that where a person

appeals to the High Court that Court may order

the release on bail of the person. Mason CJ

dismissed the application for bail. He said

that the words in s. 21(6) did not include an

application for special leave to appeal to the

High Court and that to justify an order for bail

made in the Court's inherent jurisdiction

something exceptional needed to be shown. His

Honour said that the factors upon which the

applicant relied, even when taken together, did

not constitute special circumstances which would

enliven the Court's jurisdiction to grant bail.

He pointed to the fact that the magistrate's

determination was adverse to the applicant and

that the determination was upheld at first

instance and then again on appeal unanimously in

the Federal Court. His Honour said that the

case for special leave did not inspire a

confident impression that such leave would be granted.

Zoeller's case is of course distinguishable from

the present case for a number of reasons, some

of which have emerged from what I have already

said. But in particular, at the time Mason CJ

heard the application in Zoeller, the

requirement as to the existence of special

circumstances as a condition precedent to the

consideration of the question of bail, had not

been introduced into the Act. Also it was in

the context of an application for special leave

and had reached the zenith of the appellate

structure in this country. Nevertheless, the

Chief Justice's observations are in the

framework of the concept of 'special

circumstances' within the High Court's inherent

jurisdiction to grant bail, and his Honour

considered it with that concept in mind. It is

the very same concept, it seems to me, that we

have to consider in this case, albeit from a

different statutory base from that which

confronted Mason CJ in Zoeller's case.

Assistance is also derived from other cases,

including the judgment of French J in

Schoenmakers v. Director of Public Prosecutions

unreported, 21 June 1991, especially at 9 and 10.

.....

We were referred in argument to the explanatory

memorandum which accompanied the Bill which

later became Act No. 76 of 1990. It contains

this explanation of the provision which

introduced the requirement of special

circumstances to s. 21(6)(f)(iv) of the Act:

'Such a provision is considered necessary

because experience has shown that there is

a very high risk of persons sought for

extraditable offences absconding. In many

cases the person is in Australia to avoid

arrest in the country where he is alleged

to have committed the offence, i.e. the

person left the jurisdiction to avoid justice'.

I would not myself regard the second sentence

that I have quoted as intending to be an

exhaustive statement of the circumstances which

may constitute special circumstances under s.

21(6)(f)(iv). Persons who are in this country

as fugitives from justice from other countries

which seek their extradition constitute one

class of persons who may be considered to be

very high risk persons, sought for extraditable

offences. But I do not regard the statements

that I have referred to in the memorandum as

throwing any definitive light on the definition

or ascertainment of special circumstances in the

statutory provision before us".

[71]

40. In my view so far as the female applicant is concerned there are special circumstances justifying the grant of bail. She has been in jail for a considerable period of time held in maximum security and this has had an adverse consequence on her mental state. She has the potential to end her incarceration within the reasonably foreseeable future by agreeing to plead guilty in the United States. To do that she must secure the agreement of her husband to also plead. The price she must pay to secure an end to her incarceration is to give up her rights under the Act including to withdraw her present appeal and her application for bail and to give up her rights to a trial in the United States if extradited, including, her constitutional rights to "due process" which might lead to a permanent stay of the prosecution in the United States. Her continued incarceration without bail militates severely against a free and informed choice as to whether or not she should exercise her rights in Australia to resist extradition, or if extradited, her constitutional rights in the United States, or, simply agree to a plea in order to end her incarceration. Relevant to that pressure is the fact that she has been incarcerated for eight months, she suffers an adjustment disorder with depressed moods and faces further incarceration until her appeal is heard and determined. The Act recognises that consistent with Australia's treaty obligations in matters of extradition, persons against whom extradition is sought have rights and protections under the same Act and the freedom to exercise those rights and contest extradition if they are so minded. A decision as to whether or not those rights are exercised must be free and informed. The evident public interest of the Act against the granting of bail does not outweigh the public interest in Mrs. Holt making a decision as to whether or not she will accept the offer of a plea on the terms and conditions laid down by the United States Department of Justice, or exercise the rights which she has under the Act, free from the pressure of her present and past incarceration and in the mental state which that has induced. That is sufficient in the present circumstances without canvassing the other grounds she relied upon.

[80]

1. That CHRISTINE HOLT be admitted to bail on the following

conditions:-

(1) The applicant enter into a recognisance in the

sum of $100,000.00 in a form to be approved by the Director

of Public Prosecutions with ROSS WINSTON TISCH and DESMA JOY

KENMAN as sureties with an undertaking before a Justice of

the Peace of $100,000.00 and subject to her:-

(a) Surrendering any current Australian, New Zealand

or other passport presently in her possession to

the Director of Public Prosecutions;

(b) Not applying for the issue to her of any

Australian, New Zealand or other passport or

other document of travel;

(c) Residing at 30 Edinburgh Drive, Bethania Waters

or at such other address as may be approved in

writing by the Director of Public Prosecutions,

such approval to be obtained prior to the taking

up of such residence;

(d) Not attending at any port of international departure;

(e) Not leaving the State of Queensland without the

prior written approval of the Director of Public Prosecutions;

(f) Reporting once daily between the hours of 8.00

a.m. and 4.00 p.m. to the Officer-In-Charge,

Australian Federal Police, Corner of Marie and

Graham Streets, Milton, or as otherwise agreed

in writing by the Director of Public Prosecutions;

(g) Prosecuting her appeal with all reasonable dispatch;

(h) Appearing personally at the hearing of the order

to review at the date and time to be directed by

the District Registrar and surrendering herself

into the custody of the Court and abiding by any

further order of the court as to custody.

(2) There be liberty to the Director of Public

Prosecutions to apply for revocation of bail in the event of

any material change of circumstances giving rise to a risk

that the applicant will not appear on the order to review,

including the execution of any plea agreement with the

United States Department of Justice.

2. That the application of HENRY HOLT for bail be dismissed,

reserving to him leave to re-apply for bail in the event of

the hearing of his appeal not proceeding on 18 October, 1993

without default on his part.

At a glance

Court

Decision date

Before

Source

Judgment (80 paragraphs)

Henry Peter Holt and Christine Mary Holt v David Hogan [1993] FCA 463; (1993) 117 ALR 378 (1993) 44 FCR 572 (1993) 70 A Crim R 225 (17 September 1993)

Parties

Legislation Cited (1)

Cases Cited (9)