Zoeller v Federal Republic of Germany

(a) applies under subsection (1) for a review of an order;

(b) applies under subsection (3) against an order made on that review; or

(c) appeals to the High Court against an order made on that appeal;

(d) the court to which the application or appeal is made shall have regard only to the material that was before the magistrate;

(e) if, because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has been released - the court to which the application or appeal is made may order the arrest of the person;

(i) because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has not been released; or

(ii) the person has been arrested under an order made under paragraph (e);

the court to which the application or appeal is made may:

(iii) order that the person be kept in such custody as the court directs; or

(iv) 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;

(g) if the court to which the application or appeal is made determines that the person is eligible for surrender, within the meaning of subsection 19(2), in relation to an extradition offence or extradition offences - the court shall include in its judgment on the review or appeal a statement to that effect specifying the offence or offences.

The applicant contends that the words in subs (6)(c) "appeals to the High Court" should be read as including an application for special leave to appeal. I have difficulty in accepting this submission. The reference in subs (5) to an application for special leave to appeal indicates that the Parliament was alive to the difference between an application for special leave to appeal and an appeal to this Court. That being so, I can see no justification for reading the words in subs (6)(c) otherwise than in accordance with their ordinary meaning. So read, the provision proceeds according to the rational view that the court is empowered to order the release of an applicant on bail only if it concludes that the case has that special character that justifies the grant of special leave and the applicant appeals pursuant to that grant. Unless the court makes such a grant, the appeal process is exhausted with the result that, in cases such as the present, there is a final order committing the applicant to prison. In principle, such an order should stand unless the court determines that special leave to appeal should be granted, in which event, an appeal being instituted, the jurisdiction of the court to grant bail arises. That, as it seems to me, is the way in which s 21(6) is intended to operate.

It may be objected that this interpretation of s 21(6) leaves a jurisdictional gap in the case where it is obvious that special leave will be granted. The existence of the court's inherent jurisdiction is an answer, if one be needed, to this objection. Accordingly, I turn to consider the application in the light of the inherent jurisdiction.

It has been said that this Court will grant bail only in exceptional circumstances: Re Cooper's Application for Bail [1961] ALR 584; Hayes (1974) 48 ALJR 455. These statements have been made in the context of appeals against convictions which involve considerations not relevant to the present case. Even so, Brennan J has expressed the tentative view that this Court possesses no jurisdiction to grant bail pending an application for special leave to appeal against an order dismissing an application for leave under the Extradition (Commonwealth Countries) Act 1966 Cth unless the order is required to save the application for special leave from futility: Narain v Director of Public Prosecutions (1987) 61 ALJR 317 at 318. The order sought in the present case cannot be justified on that ground.

However, it is not necessary for me to base my decision on that view of the inherent jurisdiction. It may be that the jurisdiction is exercisable in other cases that are exceptional where, for example, the grant of special leave is irresistible and the appeal is bound to succeed as a result of a recent decision of this Court. Be this as it may, it can scarcely be supposed that the jurisdiction is enlivened by something less than exceptional circumstances. At the point when bail is sought pending the hearing of a special leave application, the ordinary processes of appeal have been exhausted; they have resulted in a final order committing the applicant to prison. The process of appeal revives only in the event that this Court exercises its jurisdiction, an extraordinary jurisdiction, to grant special leave to appeal. There can be no assumption that the court will, or is likely to, make such a grant. Hence, to justify an order for bail, something exceptional needs to be shown.

The applicant submits that his record of punctilious compliance with the conditions of bail granted in the Federal Court, when taken with other matters, demonstrates that there is no risk of his absconding. He is married to an Australian; he has been living here since 1984; he has a permanent home here; and it is said that he has strong local community ties. His wife has given an undertaking to pay $100,000 in the event that he does not answer to his bail and is willing to continue that undertaking. Moreover, the time that he has spent in custody, which is substantial, would no doubt be taken into account by a West German court in assessing the penalty to be imposed in the event that he is convicted of the offences charged against him. However, that does not enable me to reach any relevant conclusion in the present application. It seems to me that these factors, even when taken together, do not constitute special circumstances which would enliven the court's jurisdiction to grant bail.

What is of importance is that the magistrate's determination adverse to the applicant was upheld by Einfeld J and by the unanimous decision of the Full Court of the Federal Court. Furthermore, the case for special leave is by no means irresistible; at this stage it does not inspire me with a confident impression that it will be granted.

In these circumstances I have come to the conclusion that the application should be refused. Of course, in the event that special leave is granted the applicant will be at liberty to make an application under s 21(6)(c) of the Act. It is appropriate that I should make an order expediting the hearing of the special leave application to enable it to be listed for hearing on 16 February 1990.

In the result I order that the application for bail be dismissed and I order that the hearing of the special leave application be expedited.