Zentai v Republic of Hungary

REASONS FOR JUDGMENT 1 I delivered ex tempore reasons in this matter on 12 May 2009. The following is the substance of those reasons with minor editing. 2 This is the return of a notice of motion in which the appellant, Mr Zentai, seeks to be admitted to bail, pending his appeal from my judgment dismissing his application for review of the decision of Barbara Lane SM by which he was determined eligible for surrender: Zentai v Republic of Hungary [2009] FCA 284. The position has changed since the matter was last before this Court in that the Republic of Hungary not only no longer opposes his admission to bail, but positively consents to it and indeed, a proposed minute of consent orders was lodged with this Court dated 11 May 2009 and signed by the solicitors for the appellant and the first respondent, setting out the terms of bail and the conditions for such bail. I declined to act in relation to the minute because it should not be thought that bail is a matter for mere consent of the parties. 3 It is pursuant to s 21(6) of the Extradition Act (1988) (Cth) a matter for the Court to be satisfied that there exist special circumstances before an appellant such as Mr Zentai is given the benefit of bail. The notice of motion is supported by an affidavit of Mr Denis Barich, solicitor, sworn on 6 March 2009 and also by Mr Zentai, sworn on 8 May 2009. The general background to Mr Zentai's case is set out at some length by McKerracher J in Zentai v Republic of Hungary [2008] FCA 1335 and for ease this morning, I would adopt that in these reasons. 4 In my opinion, the circumstances which confront Mr Zentai are different from those facing persons ordinarily in custody awaiting extradition. 5 First, in my view, taken in combination with other matters, Mr Zentai's age and his ongoing severe health difficulties, set him apart from the ordinary case, although on the material before me there is no clear evidence that his health difficulties could not be managed within the prison system, assisted by a proximate tertiary hospital. Next, and this goes to the question of special circumstances, Mr Zentai's case involves legal questions of considerable complexity. Certainly there are important issues on which minds could differ and those matters ought to be resolved by a Full Court of this court in due course. I am satisfied, as I was previously, that there is no sensible risk of flight. 6 Despite these considerations, this is a case where, but for one additional factor, any decision to admit Mr Zentai to bail would hang in the balance. It is this: in the United Mexican States v Cabal (2001) 209 CLR 165 at para 58, the Court said this: If Australia fails, when requested, to return a person against whom there is probable cause for concluding that he or she has committed an extraditable offence, it breaches its obligations under international law. If Australia fails to comply with a treaty, the rules of international law entitle the other party to the treaty to repudiate or suspend the performance of its own obligations under the treaty. A repudiation or suspension by another country of its extradition treaty obligations to Australia would hinder this country's ability to enforce its own laws.