Zentai v Republic of Hungary

REASONS FOR JUDGMENT REVISED FROM TRANSCRIPT 1 On 8 July 2005, the applicant, Mr Zentai, was arrested in Perth pursuant to a warrant for arrest issued pursuant to s 12(1) of the Extradition Act 1988 (Cth) (the Act). On the same date, 8 July 2005, he appeared before the Court of Petty Sessions and was then granted bail pending the outcome of the extradition proceedings. The extradition hearing, pursuant to s 19 of that Act, was heard on Monday, 18 August 2008 in the Perth Magistrates Court before Magistrate Lane. Her Honour reserved her decision to 10 am today, when she made an order, pursuant to s 19(9) of the Act, that the applicant was eligible for surrender to the Republic of Hungary. 2 Since her Honour made her order this morning, an application has been lodged for Mr Zentai seeking an order to abridge the time by which this application is to be served, an order to quash the order made by her Honour today (by which her Honour found that the applicant was eligible for surrender for extradition to the Republic of Hungary) and an order to order the release of the applicant on bail, pursuant to the provisions of s 21(6)(f)(iv) of the Act. That section provides that where a magistrate of a State or Territory makes an order pursuant s 19(9) in relation to a person whose surrender is sought by an extradition country, the person may, within 15 days after the day on which the magistrate makes the order, apply to the Federal Court of Australia or to the Supreme Court of the State or Territory for a review of the order. 3 By the specific subparagraph relied upon today, if there are 'special circumstances' justifying such a course, the Court may 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. The applicant has acted promptly. As such there is no formal record of her Honour's decision available at this stage. However, in essence, the applicant says that, by virtue of the modified operation of the Act effected by Art 2(5) of the Extradition (Republic of Hungary) Regulations 1997 (Treaty), her Honour was precluded from proceeding to make an order that the applicant was eligible for extradition. This was because the warrant did not disclose that, at the time of the alleged offence there existed a law in the Republic of Hungary making the offence unlawful. It is argued that on a proper construction of the Act and Treaty, the decree did not have retrospective effect, and her Honour should have made an order dismissing the application for surrender for extradition. 4 It is not possible to evaluate in any detail the merits of that ground of review because there is no record of the decision available at present. Counsel for the Republic of Hungary, Mr Renton, has informed me that the Republic does not oppose bail being granted if I am satisfied that there are special circumstances in existence, and further that it would not, at this stage, take a position opposing the foreshadowed basis of the grounds of review. 5 In relation to 'special circumstances', under the Act, the High Court of Australia has dealt with this topic extensively in United Mexican States v Cabal (2001) 209 CLR 165. At 191, in the joint judgment of Gleeson CJ, McHugh and Gummow JJ, their Honours say that: Given this background and the rationale for the "special circumstances" condition, bail in extradition cases should be granted only when two conditions are fulfilled. First, the circumstances of the individual case are special in the sense that they are different from the circumstances that persons facing extradition would ordinarily endure when regard is had to the nature and extent of the extradition charges. This means that the circumstances relied on must be different in kind from the disadvantages that all extradition defendants have to endure. To constitute "special circumstances", the matters relied on "need to be extraordinary and not factors applicable to all defendants facing extradition" (Matter of Extradition of Morales (1995) 906 F Supp 1368 at 1373 (SD Cal). Secondly, there must be no real risk of flight. Absence of a real risk of flight is ordinarily a necessary but not a sufficient condition of bail. 6 In this application the special circumstances relied upon by the applicant are the fact that the applicant is 86 years old, in poor health and in need of medical attention, has been on bail since July 2005 and has always attended court dates to extend his bail. I would add to the special circumstances that the applicant has lived in Western Australia for many years, indeed, since 1951. The applicant lives in Willetton, which is near most of his family, friends and support network. He has no close relatives or friends living outside of Australia and, significantly, his health, due to his age and his health condition generally, prevents him from leaving Perth as he is required to attend various medical appointments to monitor his health. 7 In that regard, I have been supplied with a report by Dr Ian Guy dated 19 August 2008 in which Dr Guy gives a brief account of the medical history for the applicant. Dr Guy has been his general practitioner since the mid-1970s. 8 During that time, Dr Guy says that the applicant has had a variety of significant medical problems but nevertheless, has been able to function fairly well. However, in the last few years, his general medical condition has 'deteriorated significantly' and he is becoming significantly more frail. Specifically, the applicant suffers from ischaemic heart disease, which first manifested itself in 1972 as a myocardial infarction heart attack and has since troubled him with angina and episodes of intermittent serious disturbance of heart rhythm, atrial fibrillation. He attended hospital with angina as recently as 10 August 2008 and although the heart rhythm abnormality is more frequent, he last attended hospital due to atrial fibrillation on 29 January 2008. He has also suffered from fairly frequent episodes of disturbance of brain function, thought to represent transient ischaemic attacks (mini strokes) over several years. Dr Guy continues to outline in his report the applicant's serious medical condition. 9 That condition and his age are significant factors to take into account in the 'special circumstances' issue for the purposes of the Act. The applicant is due to attend one of the regular appointments with the Stroke Registrar of the Fremantle Hospital, the next appointment being imminent on 9 September 2008. 10 Given all those matters, I am satisfied that there are special circumstances for the purpose of the Act. 11 As a separate and second consideration, but again, taking into account those factors, I consider that they also support a conclusion that there is no real risk of flight. 12 That being so, in my view, this is an appropriate circumstance in which bail should be granted under the provisions of the Act. I have been provided with a minute of the orders which are sought in relation to the grant of bail. In relation to that minute, there are specific conditions and terms which I am also informed by both counsel are the same conditions and terms which have applied in respect of the applicant's bail since he was originally arrested. Specifically, the terms and conditions are that the applicant provide a $50,000 personal undertaking, $75,000 surety; that he surrender all passports and not apply for any passports; that he is not to approach within one hundred metres of any point of domestic or international departure; is not to leave Australia; and is to continue to reside at the address at Willetton which is specified in the terms of the order. 13 Accordingly, I will make the orders as proposed in the minute as amended and there will be orders in terms of the abridgment of time, liberty to apply and costs of the motion being reserved. As to the formulation of the orders, I have adapted the minute provided by Mr Fiocco for the applicant which accords with the format identified by the High Court in United Mexican States v Cabal 209 CLR 165. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.