Timar v Republic of Hungary

The background to the present application 6 The applicant was born on 20 March 1942, in Hungary. He is fifty-seven years of age. He emigrated to this country in 1995, and became an Australian citizen on 11 August 1997. He is at present Professor and Head of the Department of Electrical Engineering at the Royal Melbourne Institute of Technology, having been appointed to that position on 6 June 1995. It appears that he was specifically invited to take up that position. 7 Professor Timar has had a most distinguished academic career. He had previously spent some six months in Canberra in 1993 as a visiting professor at the Australian Defence Force Academy. He has, since his arrival in Australia, been a consultant to various Commonwealth and State Advisory Boards. 8 In December 1993 in Hungary Professor Timar was detained in custody for two nights in relation to an investigation into an insurance claim involving suspected arson of a property in which he had an interest. The investigation did not lead to any charges being laid against anyone at that stage. 9 The Republic of Hungary became an "extradition country" pursuant to s 5 of the Act on 25 April 1997. Prior to that date, the applicant could not have been extradited from Australia to Hungary. 10 On 28 May 1997 a judicial officer in Hungary issued a warrant for the arrest of the applicant. The allegations contained in that warrant were essentially that the applicant had been in financial difficulty in 1992, and had decided to sell a holiday home of which he was part owner. The prospective buyer wanted to purchase the building site only, without the wooden house built thereon. The applicant's father-in-law, who was the other part-owner of that house, objected to having it torn down. The applicant decided to set fire to the house, and to make a fraudulent claim upon his insurer in relation to the fire. He organised for a number of confederates to burn the house down. It was destroyed by fire on 27 October 1992. On 24 May 1993 the applicant claimed on the insurer in respect of the loss of the house. The insurer paid out on the policy notwithstanding its suspicions about the fire, because nothing could be proved. 11 The extradition offence designated in the notice under s 16(1) of the Act is "fraud, causing considerable prejudice contrary to sub-sections 318(1) and (5) of the Criminal Code (Hungary) (1 count)". It appears that this offence carries a maximum penalty of five years' imprisonment in Hungary. 12 It should be noted that on 15 January 1999, within a day or so of having been arrested in Australia, the applicant was released on bail. A Magistrate found that "special circumstances" existed which warranted his release on bail. These were said to include the age of the alleged offences, the delay in bringing the proceedings against the applicant, the fact that there was no evidence of flight in relation to the offences, the value of the claim upon the insurance company (the equivalent of some A$34,000.00), and the applicant's personal circumstances including his employment, his ties to the jurisdiction and his family responsibilities. The Magistrate also took into account the fact that the applicant had no prior convictions. 13 It appears that the applicant complied with all of the conditions of his bail from the date of his release on 15 January 1999 until 22 April 1999, when he sought bail before me.

The meaning of "special circumstances" 14 It is clear that a person who has been found eligible for surrender pursuant to s 19(9) of the Act is required to show "special circumstances" before he may be released upon bail. The principles which govern the meaning of the expression "special circumstances" are well established. 15 In Schoenmakers v Director of Public Prosecutions (No 2) (1991) 31 FCR 429 at 442 Foster J stated: "It is proper to note that his Honour found that Mr Schoenmakers had not come to Australia to avoid arrest in the United States of America. However, in my view, the introduction of the requirement that bail be granted only in special circumstances to a person who has been found eligible for extradition, and who has appealed against that finding, indicates that in extradition matters all aspects of the bail procedure should be approached with particular circumspection. It must be remembered that the interests of another country, with which Australia has treaty obligations, are involved in the retaining of control over the person bailed." 16 A Full Court of the Federal Court considered the special circumstances requirement in Forrest v Kelly (unreported, Federal Court of Australia, Lockhart, Ryan and Heerey JJ, 20 December 1991). After referring to a statement in the Explanatory Memorandum which accompanied the Bill which later became Act No 76 of 1990 (the Extradition Amendment Act 1990 (Cth)) which introduced the requirement of "special circumstances", to the effect that "[i]n many cases the person is in Australia to avoid arrest in the country where he is alleged to have committed the offence…", Lockhart J, with whom Heerey J agreed, stated: "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 person 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." 17 In Holt v Hogan (No 1) (1993) 44 FCR 572 at 579, Cooper J formulated the test as: "… whether the circumstances are such as to displace the ordinary rule against bail because the personal and other public interests underlying the proven circumstances outweigh the statutory interests and concerns evident in ss 3 and 21(6)(f)(iv) of the Act. Certain matters which touch a particular applicant, for example the time already spent in custody and the time the applicant faces in custody until the Court can determine the merits of the appeal, are matters that may be given considerable weight although in themselves they may not be decisive of the outcome in any particular case." 18 In Wu v Attorney-General of the Commonwealth (1997) 79 FCR 303 Burchett J held that imprisonment in relation to a request which was later abandoned amounted to a special circumstance, as did the applicant's inability to speak English and her need for medical treatment. His Honour observed that the expression "special circumstances" refers to circumstances different, in some way that provides a ground for considering a grant of bail more favourably, from those of the ordinary case of a fugitive remanded in custody. 19 More recently, Kenny J in Bertran v Vanstone [1999] FCA 464 gave careful consideration to the meaning of the expression "special circumstances" in the context of an application for bail pursuant to s 15(2) of the Act. Section 15(6) of the Act imposes the same "special circumstances" requirement before bail can be granted as does s 21(6)(f)(iv). Her Honour stated: "Applicants for bail under s 15(2) of the Act cannot succeed unless they first establish "special circumstances justifying … remand" on bail: s 15(6). That requirement is sometimes described as a "condition precedent" to an exercise by the Court of the power to remand on bail: see Kainhoffer v Director of Public Prosecutions (1993) 48 FCR 9 at 12 per Spender J. The Act does not state expressly what are "special circumstances" for this purpose. In settling upon the relevant criteria by reference to which such a judgment may be made, it is, I think, necessary to consider, first, the objects of the Act, which are set out in s 3, and the purpose of subs 15(2) and subs 15(6). The explanatory memorandum which accompanied the Extradition Bill 1987, set out in Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 at 73-4, explained the "special circumstances" requirement in clause 15(6) in the following terms: "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 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, ie the person left the jurisdiction to avoid justice". In evaluating whether there are special circumstances shown, the first consideration is, therefore, the purpose of the special circumstances requirement, namely, to take account of "the very high risk of persons sought for extraditable offences absconding": cf Schoenmakers 30 FCR at 74 per French J; Holt v Hogan (No 1) (1993) 44 FCR 572 at 578 per Cooper J; and Kainhoffer 48 FCR at 13 per Spender J. Plainly enough, the risk of absconding is not the only consideration. In Schoenmakers, French J also referred to the need to evaluate the factors relied on as constituting special circumstances (in that case, for the purpose of s 21(6)(f)(iv)) by reference to "broad community standards", including the "presumption in favour of liberty and against deprivation of liberty without just cause": 30 FCR at 75. Cooper J adopted the same approach in Holt v Hogan (No 1) 44 FCR at 579. His Honour added in that case: "In considering the circumstances of a particular applicant for bail one does 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." Ultimately, whether any factor or group of factors will amount to "special circumstances" (when account is taken of the statutory purpose and the circumstances of the case, measured in part at least by broad community standards) will depend upon whether the relevant magistrate is satisfied that that factor or those factors justify departing from the position in the ordinary case where bail will not be granted: cf Holt v Hogan (No 1) 44 FCR at 579. As Burchett J said in Wu v Attorney-General of the Commonwealth (1997) 79 FCR 303 at 307 the expression "special circumstances" "refers to circumstances different, in some way that provides a ground for considering a grant of bail more favourably, from those of the ordinary case of a fugitive remanded in custody". See too McDade v United Kingdom (unreported, R D Nicholson J, 15 February 1999). I accept, as the applicant's counsel submitted, that "special circumstances" may be demonstrated by a single factor or by a combination of factors: cf Wu 79 FCR at 307. It is unnecessary, if not impossible, to compile an exhaustive list of those circumstances which are relevantly special. The Act, in s 15(2) and s 15(6), requires the magistrate, who is charged with making the decision as to bail, to consider all the facts pertaining to any bail application, before determining whether there are special circumstances which take the case out of the ordinary and justify remand on bail: cf R v Giordano (1982) 31 SASR 241 at 243 per King CJ (with whom Zelling and Matheson JJ agreed) and Forest v Kelly (unreported, Lockhart, Ryan and Heerey JJ, 20 December 1991). A similar approach is taken in determining whether "exceptional circumstances" exist justifying a grant of bail for the purposes of ss 4 and 13 of the Bail Act 1977 (Vic): see Application of Michael Kanfouche (unreported, Smith J, 4 April 1991); Application of Matthew Thomas (unreported, Hampel J, 2 October 1996) and Application of John Moloney (unreported, Vincent J, 31 October 1990). If the relevant magistrate decides that there are such special circumstances, then it falls to him to consider whether to remand the applicant on bail and, if so, upon what terms and conditions: see Schoenmakers 30 FCR 74 per French J and Holt v Hogan (No 1) 44 FCR at 580 per Cooper J." 20 I adopt entirely her Honour's statement of the relevant principles which govern the meaning of the expression "special circumstances" in the context of applications for bail in extradition matters.

The case for the applicant 21 Senior counsel for the applicant referred to a number of factors which, he contended, amounted to "special circumstances" in support of his application that the applicant be released on bail. These included such matters as: · the applicant's lack of any prior convictions; · the age of the alleged offence; · the unexplained delay in bringing the extradition proceedings; · the nature and gravity of the offence for which extradition is sought; · the personal circumstances of the applicant. These are all matters which are proper to be taken into account. They would not, however, in my opinion, have constituted "special circumstances" within the meaning of that expression in s 21(6)(f)(iv) of the Act had they stood alone. There is nothing particularly unusual about a person who is alleged to have committed an offence involving fraud having no prior convictions. Indeed, that is often the case. There is also nothing particularly unusual about the age of this alleged offence, or the extent of the delay involved in bringing these extradition proceedings, once it became possible to institute such proceedings. The personal circumstances of the applicant are, with one notable exception, not relevantly "special". 22 The reason I was persuaded to grant bail was the evidence which was led before me of the applicant's medical condition. That evidence was given by Professor Timar's son, Dr Attila Timar Peregrin, a cardiologist who practises at the Alfred Hospital in Melbourne. Dr Peregrin stated that his father suffers from extremely high blood pressure, and receives continual medication in an effort to control it. As his level of stress rises, so also does his blood pressure. Not surprisingly, his level of stress had risen significantly as the date for the hearing of the extradition proceedings had approached. 23 In the days immediately preceding the hearing of those proceedings the applicant's blood pressure had risen to something in the vicinity of 200 over 110, a level which was described by Dr Peregrin as "dangerous". That reading rendered the applicant a "high risk" candidate for a stroke, or a cardiac arrest. 24 Dr Peregrin's evidence persuaded me that to order that the applicant be detained in custody while in his present condition pending the hearing of his application for review, with all the attendant stress associated with incarceration, would be to increase significantly the risks to the applicant's life, or at least his general health and well-being. I was satisfied that the risks to the applicant arising from his highly elevated blood pressure would be reduced significantly if he were permitted to remain free on bail pending the hearing and determination of the review proceedings. 25 Having found that there were "special circumstances" warranting the grant of bail, I concluded that, having regard to the applicant's prior history, and to his now reasonably well established ties to this community, there was little risk realistically speaking that he would abscond if I were to grant bail. I accordingly fixed bail, and did so upon the same terms and conditions as had the Magistrate when she granted bail on 15 January 1999. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Counsel for the Applicant: Mr J Kaufman QC and Mr J Bailey

Solicitor for the Applicant: Trumble Szanto Lawyers

Solicitor for the Respondent: Director of Public Prosecutions