Rahardja v The Governor, Long Bay Hospital & Anor & Anor

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HENDRA RAHARDJA v THE GOVERNOR, LONG BAY HOSPITAL, LONG BAY CORRECTIONAL COMPLEX & ANOR

1 HIS HONOUR: The applicant in this matter, Hendra Rahardja, is in custody at present under the Extradition Act 1988 (the Act) pending a decision by the Attorney-General of the Commonwealth under s22 of the Act as to whether he is to be extradited or not, all legal proceedings as provided under that Act having been, as I understand it, exhausted. 2 A summons was filed in this Court on the 18 June 2002 seeking a writ of habeas corpus in respect of the applicant upon the basis that the matters for which he was to be extradited and in respect of which he is presently in custody cannot be the subject of trial in Indonesia having regard to the law of that country, he having been convicted in absentia and sentenced to life imprisonment for what are alleged to be cognate offences. It will be argued on his behalf in due course that the applicant must be acquitted under Indonesian law under principles similar to those referred to in the common law as autrefois convict. 3 A directions hearing has already set down dates for hearing the issues raised by the summons, in particular in respect of an argument that the power of this Court either can or ought not be exercised, having regard to the provisions of the Act and its application to the circumstances of this case. The argument is set down for 24 July 2002. 4 A new and malign circumstance has, however, intervened. It is not disputed that Mr Rahardja has been diagnosed with incurable kidney cancer with extensive associated lymph node involvement and secondary thrombosis of the major vein in the abdomen. His tumour is not operable, nor is it amenable to treatment with irradiation, and this type of cancer is not sensitive to chemotherapy. This information is contained in the report of Dr David Goldstein, Senior Staff Specialist in the Institute of Oncology at Prince of Wales Hospital, which has been tendered without objection. Dr Goldstein opines that the applicant's life-span is very limited, with a maximum of three to six months and he is also at risk of a fatal pulmonary embolism at any time. By consent Dr Goldstein gave further information by speaker telephone in my Chambers and was questioned by me and counsel for both parties. Although he was not on oath, it is not suggested that I should not rely upon what he said. A transcript of the conversation was taken and I do not propose to set out his evidence in this ex tempore judgment. It is sufficient to say that the doctor's description of the condition of the applicant and the medical exigencies which apply to someone in his condition in prison justify the conclusion that his condition will be significantly worsened or at least at substantial risk of that occurring if he is kept in custody. 5 It is important, I think, to bear in mind, when having regard to the policy considerations underlying the Act, to which reference was made, amongst other judgments by the High Court of Australia, in Cabal v United Mexican States (24 October 2001) HCA 60, that the applicant has not in this country been convicted of any crime and the conviction which affects him in Indonesia was incurred in absentia despite the fact that current extradition in accordance with the procedures under our law, which in every respect complies with Australia's treaty obligations, applied to the applicant. 6 The charges against the applicant are serious. Because of the nature of the procedures under the Extradition Act 1988 no inquiry as to the evidentiary basis for those charges can be entered into. In no sense am I suggesting that these provisions are unjust but it nevertheless is important to bear in mind the distinction which is vital under our law between a person who is in prison because he or she is convicted and one who is in prison because he or she is charged. 7 Mr Roberts SC for the DPP, appearing on behalf of the Commonwealth Attorney-General representing the Republic of Indonesia, has submitted that, as one way or another, this Court either has not or would not exercise a power to issue a writ of habeas corpus, in these circumstances it is inappropriate to grant bail. Although, as I understand his argument, in substance, if it were not for this impediment, he would concede that special circumstances existed, if they were necessary, and bail might be an appropriate discretionary order. As I have indicated during argument, I think there is much in Mr Roberts' argument upon the substantive issue, but I am not in a position at present either to hear full argument on the matter (and there is something to be said on the other side) let alone form a judgment as to its correctness. In the result Mr Roberts' argument may prove decisive but this application is made in urgent circumstances which do not permit of the substantial delay which must be necessitated were there to be full argument. I have no doubt that where this Court's jurisdiction has been enlivened by an application for a writ of habeas corpus there is power also to make interlocutory orders, of which bail is a species, pending final determination. 8 In the very special circumstances of this case I have decided that the risk of absconding is so slight and the demands of humanity so imperative that bail should be granted without further delay. In the exercise of the Court's inherent power under s71 of the Supreme Court Act 1970 or otherwise under s23 or, if necessary, the Habeas Corpus Act itself, accordingly I grant bail subject to the following conditions: the applicant is to enter into an agreement to observe the following requirements as to his conduct whilst at liberty on bail - 1. He is to reside at 6G/164 Burwood Road, Concord, New South Wales, with his daughter, Nuryanti Herlina, or otherwise at the Prince of Wales Hospital or any other hospital to which he may be admitted at the direction or request of Dr Goldstein. 2. He is to report, until variation as later specified, to Mr Christopher Murphy of the Office of the Commonwealth Director of Public Prosecutions by land-line telephone number 9321-1196 twice on each Monday to Friday between the hours of 10 and 11am and 4 and 5pm, permitting Mr Murphy to call back during that time to verify his whereabouts. 3. He is to report to any other person specified in writing by Mr Murphy delivered to the premises at 6G/164 Burwood Road, Concord, New South Wales, being another officer of the Director of Public Prosecutions office, or officer of the Commonwealth and, if so specified in that notice, twice on each Saturday and Sunday as well as during the week between the times twice a day as may be specified in that notice. 4. In the event that the applicant leaves the residence he must do so in the company of Nuryanti Herlina. In the event that he is required because of his condition to attend at the Prince of Wales Hospital, either he or Miss Herlina is to notify Mr Murphy or any person specified in his place of the attendance within an hour of the attendance either having been arranged or occurring. 5. Except for the attendance at the Prince of Wales Hospital or travelling to or from the Prince of Wales Hospital, the applicant is not to go to any point of departure for overseas or within three kilometres of the boundary of any airport or other point of overseas departure. 6. One acceptable person is to enter into an arrangement and to deposit the sum of $200,000 in cash or security, in a form acceptable to the Justice who admits the applicant to bail, to forfeit the sum of $200,000 if the applicant fails to comply with his bail undertaking. For this condition "the property" means the premises at Townhouse 5, 98 Chandos Street, Ashfield, New South Wales. It is a sufficient security, for the purpose of complying with the following condition, if the acceptable person provides an equitable mortgage together with registerable caveat and the fees for registration of the caveat over the property securing the sum specified in a form acceptable to the Justice who admits the applicant to bail. 7. It is a further condition that the equitable mortgage is to be replaced by a first mortgage together with the deposit of the Certificate of Title within 14 days of the provision to the Justice of the equitable mortgage. A copy of the said first mortgage, the Certificate of Title and the discharge of mortgage together with the amount payable for registration of the instruments is to be delivered to Mr Christopher Murphy at the Office of the Commonwealth Director of Public Prosecutions at 201 Elizabeth Street, Sydney on the same day as its provision to the Justice to be then lodged with the Registry for administration together with the cheque for the registration fees. 8. Bail is to be automatically revoked in the event of any breach of any one of these conditions. The applicant may thereupon be arrested by any police officer. Bail may be entered into before any Justice of the Peace. 9. The applicant is to surrender any passport which he might have to the Justice who admits him to bail and, in the absence of any passport a statement that he does not have any such passport, for transmission to Mr Christopher Murphy of the Office of the Director of Public Prosecutions, and give an undertaking in writing that he will not make any application for a fresh passport. 9 I propose to give liberty to apply on two days' notice. 10 The applicant is bailed to appear or otherwise account for his absence to the 24 July.

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