Timar v The Republic of Hungary

The applicant's personal circumstances 10 The applicant is 57 years old, he emigrated to Australia in 1995 and became an Australian citizen on 11 August 1997. He lives in Melbourne with his wife and son who is a permanent Australian resident. His wife is also an Australian citizen and is dependent on his income and is not able to work. The applicant holds a number of university degrees including a Doctorate in Engineering Sciences from the Technical University of Budapest. He is currently a Professor and Head of the Department of Electrical Engineering at the RMIT University pursuant to a five year contract which expires in 2000. The applicant expects his contract to be renewed. The applicant has purchased a property in Walpole Street Kew jointly with his son and they intend to build a family home. 11 On 15 January 1999 the applicant gave evidence before the magistrate in support of an application for bail pursuant to s 15 of the Act. In that evidence the applicant said he suffered from high blood pressure. On 15 January 1999 the magistrate granted the applicant bail on certain conditions which have been met by the applicant. On 22 April 1999 bail was granted by Weinberg J on certain conditions which the applicant has met. 12 Since giving evidence on 15 January 1999 the applicant's medical condition has not improved and he is currently receiving medical treatment from Dr Mary Walsh for high blood pressure. Dr Walsh confirms the diagnosis of high blood pressure and also impaired glucose tolerance. Dr Walsh in a letter to the applicant's solicitors in July 1999 expressed the opinion that the applicant's health continues to be at risk and is in danger of deteriorating further while the extradition proceedings continue. On 8 November 1999 Dr Walsh sent a supplementary report to the applicant's solicitors in which she noted that the applicant's blood pressure remained consistently elevated. Dr Walsh expressed the opinion that the applicant suffers from unstable blood pressure that is difficult to control and that his condition predisposes the applicant to serious medical consequences. Dr Walsh continued: "Ongoing stress with the continuing legal proceedings will delay successful control of his blood pressure. There is therefore an increased risk of seriously debilitating or fatal conditions such as stroke or heart attack. These risks would be further compounded if Professor Timar was jailed or extradited to Hungary to face charges." 13 Dr Walsh referred the applicant to a specialist, Dr John Fuller who concluded that the applicant's blood pressure was relatively unstable. On examination the blood pressure readings were 180/88 lying, 185/95 sitting and 175/100 standing. 14 The applicant's son is a cardiologist at the Alfred Hospital in Melbourne. He has read the reports of Dr Walsh and Dr Fuller and says that the blood pressure readings they have recorded for the applicant are dangerously high. He expresses the opinion that if the applicant was put in jail the likely effect on his blood pressure would be to increase it further which would have a very serious effect on his health. When the applicant was in custody in January 1999 his blood pressure did not fall below 200 and the treatment given to him at the time was not effective in lowering his blood pressure. 15 The applicant has not been convicted of any criminal offence in Australia or elsewhere and says he is not guilty of the criminal offence described in the extradition papers. 16 By virtue of s 21(6)(f)(iv) of the Act on an appeal against an order of review made by a single Judge the Full Court has the power to order the release of an applicant on bail on such terms and conditions as the Court thinks fit until the appeal has been heard "if there are special circumstances justifying such a course". 17 The requirement that there be special circumstances justifying the release of an applicant on bail was introduced into the Act by Act No 76 of 1990, the Extradition Amendment Act 1990 (Cth). 18 In Schoenmakers v Director of Public Prosecutions (No 2) (1991) 31 FCR 429 at 442 Foster J said: "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." In Holt v Hogan (No 1) (1993) 44 FCR 572 at 579, Cooper J considered the requirement of the existence of special circumstances as involving a consideration: "… 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." 19 In Wu v Attorney-General of the Commonwealth (1997) 79 FCR 303 the applicant claimed that the request for her extradition was an abuse of procedure and invalid. Burchett J granted bail pending the hearing of her application. His Honour expressed the view at 307 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." (see also Bertran v Vanstone [1999] FCA 1117 pars 13 and 14). His Honour found special circumstances by reference to the fact that the applicant had been imprisoned in relation to a request which was later abandoned, her inability to speak english and her need for medical treatment. 20 Recently in Bertran v Vanstone [1999] FCA 464 (upheld on appeal [1999] FCA 1117), Kenny J analysed the meaning of the expression "special circumstances" in the context of an application for bail under s 15(2) of the Act. In that context a magistrate may remand a person arrested under a provisional arrest warrant on bail so long as there are "special circumstances justifying such remand". In that context the expression "special circumstances" has the same content and context as the same expression found in s 21(6)(f)(iv). 21 Kenny J said: "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 which terms and conditions: see Schoenmakers 30 FCR 74 per French J and Holt v Hogan (No 1) 44 FCR at 580 per Cooper J." I adopt her Honour's statement of the relevant principles which in my view apply to a consideration of "special circumstances" for the purposes of s 21(6)(f)(iv) of the Act. 22 The applicant relied on the following circumstances as constituting the relevant special circumstances for the purposes of s 21(6)(f)(iv) of the Act: · the applicant's health and the effect that the extradition proceedings have had upon him; · the fact that there is a low risk of the applicant absconding because of:

• his lack of convictions;
• his Australian citizenship and his home is in Australia;
• his continuity of employment and the position he holds; - the fact that he did not flee Hungary and the Hungarian authorities did not take any steps to prevent him from leaving; · the nature and gravity of the alleged offence and the fact that the Hungarian authorities have not proceeded against the co-accused; 23 These are matters which are proper to be taken into account in considering the grant of bail but, absent the circumstance in relation to the applicant's health, I would not have been satisfied that in this case, taken either singly or together they would have amounted to "special circumstances" for the purposes of s 21(6)(f)(iv) of the Act. There is nothing particularly unusual or different about a person who has no convictions being charged with an offence or the fact that he is in employment in a senior position. Although the applicant is an Australian citizen and his home is in Australia it does not follow that he will not abscond within Australia. 24 The respondent submitted that the applicant's health condition was not a sufficient special circumstances and that the burden of establishing special circumstances is heavy. I am satisfied that the applicant's health is a sufficient special circumstance for the purposes of s 21(6)(f)(iv). The evidence discloses that the applicant suffers from extremely high blood pressure, a condition which is exacerbated by the tension of the extradition proceedings and incarceration in jail. The applicant's blood pressure level appears to be related directly to his stress level. Although it may not be out of the ordinary for a person charged with a criminal offence to be subjected to higher than normal levels of stress I consider that the particular situation of the applicant's health constitutes a special circumstance which warrants the granting of bail. The medical evidence satisfies me that there is a serious risk to the applicant's health if he is not granted bail. 25 I am satisfied that I should exercise the discretion given by s 21(6)(f)(iv) to grant bail. That section involves a two step process: Bertran v Vanstone [1999] FCA 1117, par 17. The applicant's history of complying with the bail conditions set by the magistrate and Weinberg J and his residence, family and employment in Australia persuade me that I should exercise my discretion in favour of granting bail. The conditions imposed by Weinberg J should be continued. I would propose the following order: That the applicant be released on bail pursuant to s 21(6)(f)(iv) of the Extradition Act 1988 (Cth) upon the following conditions: (a) The applicant be granted bail on his own undertaking with one surety of $10,000.00. (b) He report to Doncaster Police Station each Monday between the hours of 6.00 am and 9.00 pm. (c) He surrender any passport held, and not apply for any other passport. (d) He reside at 27 Toulon Drive, Lower Templestowe. (e) He not leave the State of Victoria. (f) He not attend any international point of departure from Australia.

I certify that the preceding twenty‑five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg

REASONS FOR JUDGMENT DOWSETT J

1. I also agree with the reasons of Goldberg J. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate: Dated: 10 November 1999 Counsel for the Applicant: Mr J V Kaufman QC and Mr P Nugent

Solicitor for the Respondent: Commonwealth Director of Public Prosecutions