McDade v United Kingdom

EX TEMPORE REASONS FOR JUDGMENT 1 R D NICHOLSON J: On 15 February 1999 I refused a notice of motion seeking the release of the applicant on bail pending the hearing of his application for review of a decision of the second respondent. As reasons delivered on that date set out, the decision of the second respondent resulted in an order that the applicant is eligible for surrender to the United Kingdom, the order being made pursuant to subsection 19(9) of the Extradition Act (1988) (Cth) ("the Act"). 2 The applicant now brings a fresh application for bail in the same circumstances save that he brings fresh evidence. The application, like the previous application, is therefore brought in reliance upon paragraph 21(6)(f)(iv) of the Act which provides that bail may be granted "if there are special circumstances justifying such a course". 3 In my previous reasons I described the circumstances of the applicant and the law relevant to the application. I rely upon what was said in those previous reasons in connection with consideration of this application. In those prior reasons I summarised the circumstances on which the applicant then relied as being as follows: "The circumstances on which the applicant here relies are the following in particular: (1) the applicant is a person in relation to whom there is a very low risk of flight; (2) the applicant is the primary carer for his son Glenn; (3) the absence of the applicant from that role may have some impact on Glenn and the Court should act to minimise the risk of that; (4) the applicant has at all times complied with previous bail conditions; (5) the applicant has a strong connection with Western Australia, both through family and property, (6) the applicant came to Australia as a result of an application to migrate and not to avoid justice in the country in which he was previously located; (7) the applicant has to ensure that the review of his decision before the Immigration Review Tribunal is effective." 4 Now before the court are an additional affidavit of the applicant and an affidavit of his wife. The affidavit of the applicant exhibits, firstly, a report from Dr Simon Turner dated 23 February 1999 concerning the applicant; secondly, a report of Dr Philip Watts dated 22 February 1999, clinical and forensic psychologist, in respect of the applicant's son Glenn which report was prepared at the applicant's request for the purpose of his extradition proceedings; thirdly, a further report from Dr Watts dated 24 February 1999 relating to the applicant and his family; fourthly, a report from Dr Watts dated 9 March 1999 in relation to the applicant formulated at the request of the applicant's family after interviews with the applicant's wife, his son Neil, his son Glenn and the applicant himself; fifthly, a copy of an article in the Sunday Times newspaper appearing following his extradition hearing but on a date unidentified. It is common ground that the article was in existence and had been published prior to the last hearing but did not form part of the affidavit material then before the Court. Tender of it was not accepted on that occasion. 5 The affidavit of the applicant's wife also exhibits reports from Dr Turner who is a consultant obstetrician and gynaecologist from the Seacrest Medical Centre, Dr Barry Leonard and from Centrelink. 6 The applicant's circumstances remain those as found in the reasons delivered on 15 February 1999 but, in addition, the following matters arise from the new affidavit material. It is germane to mention that in the reasons given on 15 February it was said that the absence of medical evidence, both in relation to the applicant and his son Glenn, was (in the light of the authorities there cited) something which resulted in his circumstances not achieving the level of "special circumstances" required by Parliament in paragraph 21(6)(f)(iv) of the Act. Doubtless with that in mind, the additional evidence to which I am about to refer is, as the exhibits to which I have already referred make apparent, of a medical character. The following factors are disclosed by it. 7 The first is that the applicant's wife who is 49 years of age, is 12 weeks pregnant as a consequence of an in‑vitro fertilisation program. This pregnancy has occurred after the loss of a pregnancy by her six months ago. The medical evidence is that the present pregnancy is high risk. The features of it are that the applicant's wife requires daily hormone injections. The applicant had been trained to administer those injections. As a consequence of his incarceration, his wife is now obliged to attend a medical practitioner daily to have the injections. 8 In relation to the applicant's wife there is also medical evidence that she suffers from stress. It appears in the report of Dr Turner, and the need for her to avoid stress is linked to the extremely high risk status of her pregnancy. 9 Next, the applicant's wife has had to give up work. The evidence brought is that neither the applicant nor his wife are eligible for social security benefits so that the family does not have a current source of income from their own labours. The evidence is they rely on their own savings and assistance from family members. Were the applicant to be released on bail, there is evidence that he would be provided with employment by his sister, who runs a cleaning business, during hours of the day which would yield him an income and, in addition, allow him to meet obligations in relation to his son Glenn. 10 There is evidence from Dr Watts that the son Glenn has been showing a great degree of disturbance and that his symptoms of disturbance are classic symptoms of a child who is distressed and are quite consistent with expected behaviour in this situation. 11 Additionally, there is evidence, again from Dr Watts, that the applicant himself is suffering from anxiety merging towards depression. Dr Watts' report stated that to avoid a major breakdown, one of the steps which could be taken would be for the applicant to be allowed bail in the community. This would remove some of the prison stress, help remove some of the family stress and enable him to feel more in control of his life. Although he did not believe that that alone would be sufficient to stop a nervous breakdown, it would certainly go some way towards it. He refers to the desirability of continuing regular counselling as being of benefit to the applicant. 12 The anxiety which the applicant experiences would appear, at least in part, to be due to the fact that as the Sunday Times article discloses and has made public, that he was formerly a police officer in the United Kingdom. Whether or not that in fact adds to his risk in prison is not for this Court to decide. It is sufficient to say that the evidence is that it contributes to the applicant's anxieties in his own perception. 13 For the first respondent a number of points are made in relation to this new evidence. In relation to the role of the son Neil and other family members, it is suggested that it is not explained on the evidence why they could not be involved in the delivery of injections to the applicant's wife and of assistance with shopping. 14 In relation to the economic wellbeing of the applicant and his family, it is said that there is no evidence as to what savings they have and no evidence that they have to sell assets if the current position continued with the applicant not on bail. 15 In relation to the stress which is experienced by the applicant's wife and in particular to her evidence that she is required at times to take the son Neil to work and usually picks him up at night between 6 pm and 8 pm, involving a 30 to 40-minute round trip, it is submitted there is no evidence why Neil could not travel to and from work by taxi. 16 In relation to the medical evidence relating to Glenn, it is said that this should be correctly seen by the Court as descriptive of the experience of any child in the situation in which he is placed, and that what is required is evidence of significant psychiatric difficulty in order to establish special circumstances. Doubtless, that submission is based upon the reference to the evidence of that character in Kainhoffer v Director of Public Prosecutions (1993) 120 ALR 98 referred to in my previous reasons. While that may be descriptive of the evidence of a medical character which was there in issue, it is not, in my view, a necessary qualification for medical evidence relating to a child that it should disclose significant psychiatric difficulties. The question is, is there medical evidence and what does it disclose? 17 In relation to any anxiety experienced by the applicant as a result of his incarceration and disclosure of his prior occupation, it is submitted for the first respondent that it is the business of the prison authorities to ensure security in the prison and that this is not a factor which the Court should take into account. I have already stated that it is the anxiety of the applicant which is in evidence and that is a fact which the Court must take into account. There is no evidence going to the nature of the prison conditions such as would discount that fact being taken into account. 18 Overall it is submitted for the first respondent that the high onus of establishing "special circumstances" is therefore still not met on this second application for bail. 19 There were two additional factors which the case for the applicant relies upon. The first is one which was relied upon previously and is among the seven factors which I have previously cited from the prior occasion, and that is that there is no real risk of the applicant absconding. That is based on the fact that he is not in Australia as a fugitive, he has strong family ties here; that if he did not appear on the appeal, he would forfeit the eligibility for his wife and family to stay in Australia, a state for which he has consistently fought both in relation to them and himself. Secondly, it is also said the appeal date has not been set and it is uncertain as to how long the applicant will remain in custody - see Kainhoffer at page 107. In relation to this latter factor it is said for the first respondent that there is nothing to show that the appeal could not be expedited and/or that an appeal date could not shortly be obtained. 20 The approach which the court should take to the evidence on an application for establishing the special circumstances here in issue is that which was set out in the various authorities to which I referred on 15 February in the reasons which I then published. In particular I accept now, as I accepted then, that I must look at the totality of circumstances, including medical evidence, and decide whether or not there is a case where "special circumstances" have been made out. I must look at the evidence as a whole and I must look at all of the factors which the applicant brings in the evidence, bearing in mind any weaknesses in it to which the respondent's contentions are pointed. In particular it is not appropriate for me to segment the process by requiring a precise identification of whether each particular element is a "special circumstance". The question is whether the totality of circumstances establish the existence of "special circumstances". 21 In my opinion, taking the circumstances disclosed from the prior application which still pertain today and adding to them the circumstances in relation to the pregnancy of the applicant's wife; the high-risk condition of it; the treatment which it requires; the part which the applicant as a husband could play in that treatment; the developments in relation to income earning by the family; the evidence of stress on the applicant's son and on the applicant himself; the totality of those circumstances constitute special circumstances. I consider that the high onus which is required to be met is established by those facts; that is, there are "special circumstances" justifying the course of granting bail. 22 That does not itself do more than establish the jurisdictional precondition which has to be met to enable a grant of bail to take place. I must then turn to whether it is appropriate to grant bail and that in turn will be shaped by the conditions on which it is proposed that bail would be held. This not having been precisely addressed, I will therefore invite submissions from counsel in relation to conditions appropriate to bail. I certify that the preceding 22 numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson.