Federal Court of Australia|1993-12-24|Before: Mr P, Spender J

Maria Kainhoffer v the Director of Public Prosecutions and the Republic of Austria [1993] FCA 655; (1993) 120 ALR 98 (1993) 48 FCR 9 (24 December 1993)

MARIA KAINHOFFER v. THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE REPUBLIC OF

Federal Court - appellate jurisdiction - appeals from state courts exercising federal jurisdiction - whether on an appeal from a single Judge of a State Supreme Court to the Full Court of the Federal Court under s. 21(3) of the Extradition Act 1988, a single Judge of the Federal Court may grant bail pending the hearing of the appeal.

Extradition - extradition to and from foreign states - applicant seeking release on bail pending hearing of appeal from a single Judge of a State Supreme Court to the Full Federal Court - whether a single Judge of the Federal Court may grant bail pending the hearing of the appeal - bail not to be granted except in special circumstances - Meaning of special circumstances - Whether nature of incarceration combined with lack of previous experience of prison life may amount to special circumstances - whether impact of incarceration of parent on child may amount to special circumstances.

Hempel and Etheredge v. Moore 13 FCR 480

Schoenmakers v Director of Public Prosecutions 30 FCR 70

Schoenmaker v Director of Public Prosecutions (No. 2) [1991] FCA 457; 31 FCR 429

Forrest v Kelly (unreported judgment of the Full Court of the Federal Court, Melbourne, 20 December 1991)

The Queen v. Giordano (1982) 31 SASR 241

Solicitor for the appellant: Mr C. Nyst of Witheriff Nyst

Solicitors for the respondents: Commonwealth Director of Public

1. Maria Kainhofer be admitted to bail on the following

conditions:

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

$50,000.00 in a form to be approved by the Director of

Public Prosecutions, with Franz Berner as surety with an

undertaking before a Justice of the Peace of $50,000.00,

and subject to her:

(a) surrendering any current passport presently in her

possession to the Director of Public Prosecutions;

(b) not applying for the issue of any passport or other

document of travel;

(c) residing at 55 Gordon Street, Hawthorne, Brisbane

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 8.00am

and 4.00pm 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 appeal

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) Franz Berner and Eva Marie Bridget Berner voluntarily

surrender any current passport presently held by them to

the Director of Prosecutions, and not apply for the issue

of any passport or other document of travel.

(3) 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 at the hearing of her

appeal.

2. The parties have liberty to apply.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

SPENDER J It is unfortunate that important cases like this have to be dealt with as a matter of urgency. This imposes a constraint on the time for the formulation of precise reasons, and foreshortens the opportunity of dealing in great detail with the various matters in the evidence. However, notwithstanding those difficulties, it seems to me to be important to give my reasons straight away.

2. On 22 December 1993, Maria Kainhoffer lodged an appeal from part of an order of the Supreme Court of Queensland made on 10 December 1993 whereby White J confirmed the order of a Magistrate made on 1 November 1993 that Maria Kainhoffer ('the appellant') was eligible for surrender within the meaning of s. 19(2) of the Extradition Act 1988 ('the Act') in relation to four counts on a warrant of arrest of the appellant and ordered that the appellant be committed to prison to await surrender in relation to those counts. A notice of motion was filed on the same day seeking an order that the appellant, pursuant to s. 21(6)(f) of the Act be granted bail upon such terms and conditions as the court thinks fit. There is a preliminary question of the jurisdiction of a single Judge of this Court to entertain the notice of motion seeking the order that the appellant be granted bail in circumstances where the Act provides for an appeal to be heard by the Full Court.

3. Section 21(1) of the Act relevantly provides:

"Where a magistrate of a State or Territory makes an order under s.

19(9) or 19(10) in relation to a person whose surrender is sought by

an extradition country -

(a) in the case of an order under subsection 19(9) - the person; or

...

may, within 15 days after the day on which the magistrate makes the

order, apply to the Federal Court, or to the Supreme Court of the

State or Territory for a review of the order."

4. The court, by subsection 2, may, inter alia, confirm the order of the Magistrate. In this case, the appellant sought review of the decision of a Magistrate by the Supreme Court of Queensland and that court confirmed the order of the Magistrate. Section 21(3) provides:

"The person or the extradition country, whether or not the person or

the country was the applicant for review under subsection (1), may

appeal to the Full Court of the Federal Court from the order of the

Federal Court or the Supreme Court."

5. This the appellant has done. Sub-section 6 relevantly provides:

"Where the person...:

...

(b) appeals under subsection (3) against an order made on that

review;

...

the following provisions will have effect:

...

(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 and 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) if there are special circumstances justifying such a

course, 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."

6. It was submitted by Mr Flanagan of counsel on behalf of the respondents , that a single Federal Court Judge does not have the power to make an order pursuant to s. 21(6)(f)(iv) of the Act granting the applicant bail pending appeal. It was submitted that the word "court" referred to in that paragraph has to be read as meaning the Full Court of the Federal Court. This submission is based on s. 21(3) which provides for an appeal by a person such as the appellant to "the Full Court of the Federal Court".

"The Court has such original jurisdiction as is vested in it by laws

made by the Parliament."

"Except as otherwise provided by this Act or any other Act, the

original jurisdiction of the Court in either Division shall be

exercised by a single Judge."

9. Section 23 provides:

"The Court has power, in relation to matters in which it has

jurisdiction, to make orders of such kinds, including interlocutory

orders, and to issue, or direct the issue of, writs of such kinds, as

the Court thinks appropriate."

"(1) Subject to this section and to any other Act, whether passed

before or after the commencement of this Act (including an Act by

virtue of which any judgments referred to in this section are made

final and conclusive or not subject to appeal), the Court has

jurisdiction to hear and determine:

(a) appeals from judgments of the Court constituted by a

single Judge;

(b) appeals from judgments of the Supreme Court of a

Territory; and

(c) in such cases as are provided by any other Act, appeals

from judgments of a court of a State, other than a Full

Court of the Supreme Court of a State, exercising federal

jurisdiction."

11. Section 24(1A) provides:

"An appeal shall not be brought from a judgment referred to in

subsection (1) that is an interlocutory judgment unless the

Court or a Judge gives leave to appeal."

12. Section 25(1) provides:

"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."

13. Section 25(2) provides that:

"Applications:

(a) for leave or special leave to appeal to the Court; or

(b) for an extension of time within which to institute an appeal to

the Court; or

(c) for leave to amend the grounds of an appeal to the Court; or

(d) to stay an order of a Full Court;

may be heard and determined by a single Judge or by a Full Court."

14. The Federal Court of Australia is a single court and there is no separate court known as the Full Court of the Federal Court. In my opinion, s. 21(6)(f)(iv) confers a power on the Federal Court, which power may be exercised by a single judge, to order that a person appealing to the Full Court of the Federal Court to be released on bail if the onerous conditions specified in that paragraph are made out.

15. I am not here concerned with the questions that were before French J. in Hempel and Etheredge v. Moore 13 FCR 480 which was a decision made under the Extradition Foreign Estates Act 1966, which Act made no provision for the granting of bail pending appeal; the review to the Federal Court of the Magistrate's decision to extradite was made pursuant to the Administrative Decisions (Judicial Review) Act 1977 ('the ADJR Act').

16. French J held that he did have power to consider the grant of bail pending an appeal to the Full Court of the Federal Court pursuant to O. 52 r. 35 of the Federal Court Rules which relevantly provides:

"The Court or a Judge may, upon such terms as it thinks fit, admit an

appellate to bail pending the hearing of his appeal or his

application for leave to appeal."

17. The considerations by French J in Hempel's Case by which he concluded that he did have power pursuant to O. 52 r. 35 and s. 15 of the ADJR Act to entertain the application for bail pending appeal do not apply in the present case. The Act now provides for the granting of bail pending appeal. Section 3 (a) of the Act outlines one of the principal objects of the Act as being:

"To codify the law relating to the extradition of persons from

Australia to extradition countries and New Zealand and, in

particular, to provide for proceedings by which courts may determine

whether a person is to be, or is eligible to be, extrdited, without

determining the guilt or innocence of the person of an offence."

18. In Schoenmakers v Director of Public Prosecutions 30 FCR 70, a single Judge of this court, French J, did grant bail pending an appeal pursuant to the provisions of the Act to a Full Court of the Federal Court.

19. His Honour's decision is important for present purposes, primarily because of the consideration by his Honour of the requirement of "special circumstances". It does not appear, however, that the present question of jurisdiction was raised in that case. Neither was consideration directed to it on appeal (see 30 FCR 488), nor was it referred to by Foster J in Schoenmaker v Director of Public Prosecutions (No. 2) [1991] FCA 457; 31 FCR 429, when his Honour considered the question of the validity of the recognisances entered into as a condition of the grant of bail by French J, and the estreatment of those recognisances when Mr Schoenmaker did not appear when his appeal was called on.

20. On the proper construction of s. 21 of the Act, in my opinion the power conferred by s. 21(6)(f)(iv) may be exercised by a single judge.

21. The question then becomes one of whether there are "special circumstances" justifying the release on bail of the appellant.

22. It is clear that it is for the appellant to establish special circumstances and that that is a condition precedent to the court exercising its discretion to release. However, it seems to me to be wrong to segment the process unnecessarily by requiring a precise identification of what is a special circumstance and distinguishing that circumstance from circumstances which are not special.

23. In the explanatory memorandum which accompanied the Extradition Bill 1987 the following explanation of the special circumstances requirement, enacted in s. 21(6)(f)(iv), appeared:

"Subclause 6 provides that a person shall not be granted bail unless

there are special circumstances. Such a provision is considered

necessary because experience has shown 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, that is, the person left the

jurisdiction to avoid justice."

24. I respectfully agree with the observations of Ryan J in Forrest v Kelly (which was a judgment of the Full Court constituted by Lockhart, Ryan and Heerey JJ given on 20 December 1991 at Melbourne) where his Honour said:

"The notion of special circumstances is readily comprehensible

although the nature and combination of facts pertaining to a given

applicant and to the proceedings in which he is involved which may

constitute such circumstances are capable of almost infinite variety."

25. I also respectfully agree with the observation of King CJ (with whom Zelling and Matheson JJ agreed) in The Queen v. Giordano (1982) 31 SASR 241 where the Chief Justice said at 243:

"It is unnecessary, and would be unwise, to attempt to compile a list

of circumstances which would be regarded as exceptional. The

totality of the circumstances must be looked at."

and also the observations of Cooper J in his recent judgment in Holt v. Hogan [1993] FCA 463; 117 ALR 378, particularly his Honour's observations at pp 385-6.

26. It is important to have regard to the principal objects of the Act and the clear concern of the legislature that experience has shown that there is a very high risk of persons sought for extraditable offences absconding and, as Foster J said in Schoenmakers (No. 2) those circumstances dictate that the Court approach the matter of bail with an attitude of circumspection. Cooper J said in Holt v. Hogan at 385:

"Against these matters one then identifies and weighs the particular

circumstances of the applicant for bail keeping in mind broad

community standards including a predisposition against unnecessary or

arbitrary detention in custody. In considering the circumstances of

a particular application for bail, one must not exclude those

circumstances which ordinarily would fall for consideration on an

application for bail where a person is charged domestically for the

commission of a crime in this country. All personal circumstances

are taken into consideration, notwithstanding that some or all of

them will again fall for consideration if special circumstances are

established as a condition precedent to the exercise of a

jurisdiction to grant bail."

27. Matters such as the time already spent in custody and the time the applicant faces in custody until the court can determine the matter, are matters to which weight must be given, although in themselves they may not be decisive of the outcome. So also may be the circumstances of the incarceration. There may be a significant difference between detention in a remand centre and the detention which the appellant presently suffers, namely in a maximum security prison with maximum security prisoners in circumstances when detention of that nature is having a serious effect on the appellant.

28. The history of the matter is also relevant. On 22 January 1992 an extradition request from the Republic of Austria was referred to the Office of the Director of Public Prosecutions by the Attorney-General's Department in Canberra. The Office of the Director of Public Prosecutions is acting in this matter on behalf of the Attorney-General's Department pursuant to the provisions of s. 6(1)(k) of the Director of Public Prosecutions Act 1983. On 13 February 1992, a provisional arrest warrant for the appellant was obtained pursuant to s. 12 of the Act from Mr Quinlan, a stipendiary magistrate at Brisbane.

29. The appellant was arrested at her home at 55 Gordon Street, Hawthorne on that day by members of the Australian Federal Police pursuant to the provisional arrest warrant. And on the following day she appeared before Mr Randall a stipendiary magistrate in Brisbane. The appellant then applied for bail which was opposed by an officer of the Director of Public Prosecutions. The basis of opposition was that special circumstances which are required pursuant to s. 15(6) of the Act, were not established. Notwithstanding that opposition, the appellant was granted bail on condition that she report every Monday, Wednesday and Friday to the Officer-in-Charge, Australian Federal Police, Milton and that she reside at 55 Gordon Street, Hawthorne.

30. The matter was remanded until 13 March for mention and then adjourned to 20 and 21 May 1992 for hearing. On 20 May 1992 the surrender proceedings were adjourned to 6 July and her bail was varied to require reporting every Monday. She was to continue to reside at her home at 55 Gordon Street, Hawthorne. On 6 July the matter was further adjourned to 7 and 8 September and on 8 September 1992 the appellant appeared before Mr Krosch, a stipendiary magistrate who determined that she was not eligible for extradition to the Republic of Austria and she was then released from custody. Nearly six months later on 17 February, a second extradition request from the Republic of Austria concerned the appellant was referred to the Office of the Director of Public Prosecutions by the Attorney-General's Department in Canberra.

31. On 17 March 1993, a provisional arrest warrant for the appellant was obtained from Mr Schneider a stipendiary magistrate in Brisbane for the arrest of the appellant, again pursuant to the provisions of s. 12 of the Act. On 18 March she was arrested at her home and appeared before a magistrate in the Brisbane Magistrates Court. Again she was granted bail on entering into a recognisance in the amount of $1000 on condition that she surrender her current passport to the Australian Federal Police within 48 hours and not apply for a new passport while her recognisance remained in force. Again, that grant of bail required that special circumstances be shown (see s. 15(6) of the Act).

32. On 28 September the hearing to determine the appellant's eligibility to be extradited to the Republic of Austria was commenced in the Brisbane Magistrates Court before Mr Caldwell, a stipendiary magistrate. The warrant of arrest which was before the magistrate indicates that the appellant had been remanded in custody by order of the Salsburg State Court on 10 July 1990 and had been released on 8 August 1990 with directions not to flee, not to hide and to report to the police once a week. The warrant of arrest states that the appellant did not follow these directions and that she tried to evade justice by fleeing. The extradition hearing in relation to the appellant continued on 29 September 1993 and on 1 November, Mr Caldwell decided that the appellant was eligible to surrender to the Republic of Austria with respect to counts 2, 3(a), 3(g) and 4 found in the warrant of arrest.

33. An affidavit of Wendy Ann Barber deposes that the maximum penalties in Austria for the offences in relation to which the appellant was found eligible for surrender are imprisonment for six months to five years on count 2; imprisonment for a period up to three years, count 3(a); imprisonment for a period up to three years, count 3(g) and imprisonment from one to ten years on count 4. The stipendiary magistrate ordered that the appellant be committed to prison pending the issue of a surrender warrant with respect to those counts.

34. On 4 November 1993 the appellant sought an order to review the magistrates decision in the Supreme Court of Queensland pursuant to s. 21(1) of the Act. On 5 November an application for bail was made by the appellant in the Supreme Court of Queensland. The application was opposed by the Director of Public Prosecution and the application for bail was refused by Derrington J.

35. The application by the appellant to review the order of Mr Caldwell, the stipendiary magistrate, was heard by White J in the Supreme Court on 4 December 1993 and on 10 December 1993 her Honour made an order confirming the order of Mr Caldwell made on 1 November 1993. The appellant has remained in custody since 1 November 1993.

36. Affidavit material from each side indicates that both parties consider they have prospects of success on an appeal to the Full Court of the Federal Court.

37. I turn now to consider whether there are special circumstances and if so, whether bail should be granted and on what terms.

38. The appellant was born in Austria on 16 May 1953. She is currently aged 40. She lived all her life in Austria until 1980 when she met her present husband, Franz Berner in 1980 at which time she was 27 years old. She came with him to Australia for three months in 1980 and returned to Austria. In April 1982 she returned to Australia to live with him and they have lived together in a de facto marital relationship ever since. They have a daughter, Eva Maria Bridget Berner, born in Brisbane on 28 December 1983.

39. In July 1984, the appellant, her de facto husband and their daughter returned to Austria to live and in February 1990 returned permanently to Australia. The appellant has permanent resident status. The appellant indicates that in the late 1980s her family's hotel business suffered considerable financial difficulties and in particular the Alpenhoff Hotel which was then valued at approximately $A2 million and other family assets were sold to satisfy debts.

40. The appellant says that she was heavily involved in matters relating to the finalisation of the financial affairs of her family business in the late 1980s. The four counts on which she has been found eligible for deportation may be paraphrased by saying that the first relates to the giving of false evidence, by swearing a false oath of disclosure in January 1988 relating to the possession of items with "a retention of title". The second count essentially is one of attempted false pretences in respect of two computers and programs "by pretending to be solvent and willing to pay for the items". The conduct is said to have resulted in damages in the amount of ATS 38,400, which I understand is of the order of 7/8000 Australian dollars. The third count relates to the attempted obtaining of tax credits by the submission of false invoices in late '89 to early April 1990, and the final count relates to misappropriation of a leased Alpha motor vehicle, whose value is said at the time of the misappropriation to have been around $30,000. The essence of that charge is said to be a refusal by her to surrender the property on the termination of the agreement caused by the default in payment of the appellant.

41. In June 1990 the appellant returned to Austria to attend to the finalisation of her family's business problems. She was, shortly after her return to Austria, arrested and placed in custody. She says that she is not guilty of the allegations which have been made against her in Austria; felt that she was being unjustly victimised in that country. She returned to Australia believing that the Austrian Government would not seek to pursue her further. She was then arrested on 13 February 1992 and the curial history followed as I have indicated.

42. The appellant says that she has only ever lived in Austria and Australia and considers Australia to be her permanent home. Until she has to she does not wish to or intend to leave Australia where she has permanent residency status. It is important that in respect of the various bail conditions which have been imposed upon her, those conditions have been honoured punctiliously; in particular she remained with her family in this country carrying on their business and living in the matrimonial home after her discharge from custody on the finding of the magistrate in respect of the first application for extradition.

43. She swears that she is not guilty of any of the counts referred to in the warrant and that she has no prior convictions for any kind of criminal offence anywhere in the world. Apart from the period in Austria in July 1990, the first time she has ever spent any period in prison was on 1 November 1993. Since that time she has been held in custody in the Brisbane Women's Correctional Centre at Boggo Road, an experience that has been personally extremely stressful. She is incarcerated with women who have been convicted of murder and very serious offences of violence. Those women who have been granted bail whilst on remand do not include those charged with very serious offences or have very bad criminal records, and as a result the persons with whom she is obliged to spend her time in the Brisbane Women's Correctional Centre are those with the most serious kinds of criminal records. The atmosphere, she says, is extremely threatening in words and demeanour.

44. The incessant foul language of the inmates, the open lesbianism, and overt sexual behaviour of other female prisoners, and the fear of violence and feelings of insecurity engendered by the "endless talk of killing people and threats to kill" has affected her health. Prior to her imprisonment she lived with her husband and daughter at 55 Gordon Street, Hawthorne. She and her husband ran a business known as the Bulimba Fruit Market at 140 Oxford Street, Bulimba, and prior to her imprisonment she worked in the business with her husband.

45. Her husband starts work at approximately 5.30 each Monday through to Saturday and usually works until 7.30 pm. The appellant is the parent having the primary parental responsibility for the caring of her 9 year old daughter. Since her imprisonment her husband has been faced with the difficulty of whether to leave the daughter when he goes to the markets at about 5 o'clock until he returns to the home at about 11, or take her with him. There is no realistic opportunity for arranging for alternative care for the 9 year old daughter.

46. It seems to me that, looking at the matter as a whole, there are special circumstances here justifying the grant of bail. In particular I have had regard to the circumstances of her incarceration, namely that the appellant, a 40-year-old with no previous criminal convictions and with no experience of the harsh realities of prison life, is being detained in a maximum security prison with hardened criminals, coupled with her personal vulnerability as a result of those circumstances, and the significant effect this has had on her health. The incarceration of the mother has had a serious and adverse effect on the child, which is an added circumstance affecting the mother. The child's welfare is itself a relevant consideration.

47. There is before me a report by Dr Peter Mulholland, a consulting forensic psychiatrist, which impresses me as being candid and helpful. He refers in some detail to her reaction to the circumstances of her imprisonment at the Women's Correctional Centre and his results of his observations at an interview, and concluded:

"Mrs Kainhoffer has an adjustment disorder with anxious and depressed

mood. This is due to her being incarcerated, the overall legal

situation, and especially due to her separation from her family, in

particular her daughter.

Mrs Kainhoffer is finding it difficult to cope in a strange and alien

prison sub-culture especially as she is held in the maximum security

environment with dangerous prisoners.

There is no treatment that would be of any value in prison. If the

current state of affairs is to continue, then there is a likelihood

of her emotional state deteriorating, in which case she would have to

have treatment. However, at the present time, there is no treatment

that is going to be of any value except changing her environment.

This would mean being released from incarceration."

48. Concerning the daughter, Dr Mulholland reported that the mother understands the daughter is not coping with the incarceration of the mother, and the mother is naturally concerned. There is a report from the treating doctor of the daughter which is also important, the report of Dr Zolte, dated 21 December 1993. It says that the daughter, whose tenth birthday falls three days after Christmas, is very disturbed if separated from her mother. She suffers from bedwetting, insomnia, cries under a blanket day and night, and the doctors fear "she is suffering from a psychotic illness. She is not eating, loosing weight and stuttering - and is not improving but deteriorating after two months separation from her mother." The doctor said "I believe she has developed a psychotic illness and needs her mother as a medical emergency and necessity".

49. Of this report, Dr Mulholland said that the report would indicate that the daughter is having significant psychiatric difficulties. He said:

"I do not think that Mrs Kainhoffer is fully aware of this, and I

suspect that her husband is keeping the full extent of Eva's

difficulties from Mrs Kainhoffer in an understandable caring move to

lessen the stress upon her.

From a psychiatric point of view, I am in favour of Mrs Kainhoffer

being released on bail because of her psychiatric disorder, and

because of the effect on her daughter and the likelihood of both

mother and daughter's psychiatric conditions becoming worse as time

passes and Mrs Kainhoffer remaining in custody."

50. The record of punctilious compliance with the conditions of bail would not ordinarily constitute special circumstances, nor would the fact that the applicant has lived in Australia for some time and has family here or that she has a permanent home here. However, when one looks at the totality of the circumstances including the medical evidence to which I have just referred, it is clear to me that this is a case where there are special circumstances. I now turn to consider whether bail should be granted.

51. Here the period of incarceration has not been great as yet, although the circumstances of it are quite serious and have a serious effect directly on the mother and indirectly on the daughter. There is no expectation that the appeal will be heard in the immediate future. Secondly, I think it is accepted from the bar table that this is not a case where the major fear in respect of extradition proceedings, namely, that the party will abscond, is very high. One must always accept that there is a risk, but the facts of this case suggest that it is very much a small one.

52. Having regard particularly to the matters that I have referred to as special circumstances, on the whole of the evidence, I am prepared to admit the appellant to bail until the determination of her appeal or earlier order, and I propose to do that subject to conditions.

1. Maria Kainhofer be admitted to bail on the following conditions:

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

of $50,000.00 in a form to be approved by the

Director of Public Prosecutions, with Franz Berner

as surety with an undertaking before a Justice of

the Peace of $50,000.00, and subject to her:

(a) surrendering any current passport presently in her

possession to the Director of Public Prosecutions;

(b) not applying for the issue of any passport or other

document of travel;

(c) residing at 55 Gordon Street, Hawthorne, Brisbane

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 8.00am

and 4.00pm 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 appeal

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) Franz Berner and Eva Marie Bridget Berner voluntarily

surrender any current passport presently held by them to

the Director of Prosecutions, and not apply for the issue

of any passport or other document of travel.

(3) 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 at the hearing of her

appeal.

2. The parties have liberty to apply.

Extradition Foreign Estates Act 1966

Decisions (Judicial Review) Act 1977

Public Prosecutions Act 1983

Court of Australia Act 1976

Maria Kainhoffer v the Director of Public Prosecutions and the Republic of Austria [1993] FCA 655;

At a glance

Court

Decision date

Before

Source

Judgment (90 paragraphs)

Maria Kainhoffer v the Director of Public Prosecutions and the Republic of Austria [1993] FCA 655; (1993) 120 ALR 98 (1993) 48 FCR 9 (24 December 1993)

Parties

Legislation Cited (4)

Cases Cited (3)