FEDERAL COURT OF AUSTRALIA

McDade v United Kingdom [1999] FCA 1685

EXTRADITION – bail – appeal against dismissal of application for judicial review of magistrate’s decision as to eligibility for extradition – appellant in custody – bail previously refused by single judge – personal and family circumstances of appellant – special circumstances – special circumstances not shown in this case – motion for bail refused.

Extradition Act 1988  (Cth) s 21

Schoenmakers v Director of Public Prosecution (1991) 30 FCR 70

STEPHEN GERARD MCDADE v THE UNITED KINGDOM and PETER MALONE

W103 OF 1999

FRENCH, MARSHALL and KENNY JJ

15 NOVEMBER 1999

PERTH

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL

COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The motion for bail is dismissed.

2.         The costs of the motion are reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL

COURT OF AUSTRALIA

REASONS FOR JUDGMENT

The Court:

1                     The appellant in these proceedings, having secured an adjournment of the hearing of the appeal to 23 December, now seeks release on bail pending the hearing of the appeal.  This application is made under s 21(6)(f)(iv) of the Extradition Act 1988 (Cth).  That Act was amended in 1990 to provide a requirement, before an order for release on bail could be made for a person subject to extradition proceedings, that there be special circumstances justifying such a course and that requirement of special circumstances operates in respect of a review of a magistrate’s order and appeal against the decision of a judge at first instance and an appeal to the High Court against an order made on that subsequent appeal, as appears from subs 21(6)(a), (b) and (c).

2                     The requirement that there be special circumstances was explained in the Explanatory Memorandum which accompanied the Extradition Bill of 1987 as follows:

“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; that is, the person left the jurisdiction to avoid justice.”

The reference to special circumstances in the context of this legislation, as I observed in Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70, imports a presumption against the grant of bail and puts the onus on the applicant to demonstrate that an order for bail would be justified.  As I observed at the time, there are two stages in the decision-making process, the first involving the threshold question whether there are special circumstances of the kind contemplated by the section, and if that question is answered in the affirmative, then whether in the exercise of its discretion, the Court should make an order for release on bail and, if so, upon what terms and conditions.

3                     In this particular case, an application for release on bail pending the hearing of this appeal was made before Nicholson J on 2 October and at that time was refused.  In an earlier application, on 26 March, his Honour had found that there were special circumstances for release on bail pending the hearing of the review application by Carr J.  At that time he said:

“Taking the circumstances disclosed from the prior application which still pertain today and adding to them the circumstances in relation to the pregnancy of his wife, the high risk condition of it, the treatment which she requires, the part which the applicant as a husband could play in that treatment, the development in relation to income earning by the family, the evidence of stress on the applicant’s son and on the applicant himself, the totality of those circumstances constitute special circumstances.  I consider that the high onus which is required to be met is established by those facts; that is, there are special circumstances justifying the course of granting bail.”

As his Honour noted at the time the subsequent application came before him on 2 October, the circumstances had changed.  The high risk pregnancy condition of Mrs McDade no longer existed.  There were, however, added circumstances of her alleged post-natal depression as well as the decision of Carr J who by that time had dismissed the application for review.  His Honour referred to affidavit evidence from Mrs McDade that she had been suffering from severe depression since the birth of their daughter, Fiona, that she had been diagnosed by Dr McMullen at the Duncraig Medical Centre and that she had an appointment to see a Dr Taylor at the psychiatric clinic at Osborne Park Hospital on 1 October, which was the day before the hearing.  She had said that she desperately needed her husband’s assistance in relation to domestic work and emotional support and that her constant fatigue and inability to perform basic household tasks and the need to look after her son, Glenn, and the baby, Fiona, would create unbearable pressure for her.

4                     His Honour then assessed the material before him, noting that it had not been explained in evidence why Mrs McDade’s consultation with the psychiatric clinic has been deferred.  Mr McDade, before us, said that was because she was required for cross-examination before his Honour and although that was a statement from the bar table, it was not disputed and for present purposes the Court does not propose to treat it as other than a genuine explanation of the deferral of that attendance.

5                     Unanswered, was said to be a prospect that if Mrs McDade took medication, she would be restored to a satisfactory condition of health within six to eight weeks.  In the circumstances, and referring to her only taking Panadol at that time, Nicholson J did not find the evidence of her current medical condition to have the same high compellability as the evidence before him in March relating to the high risk pregnancy.  He also observed that the decision of Carr J did increase the possibility that absconding would become an option.  The effect of the decision of Carr J was that the Court had found the applicant had no rights and this would reinforce the United Kingdom’s version of the facts.  It may be, with respect to his Honour, that the statement that the applicant has no rights is not an accurate statement.  He plainly has rights of appeal and rights to make applications of the kind that he now makes and, of course, a right to be heard in relation to them.

6                     His Honour went on to observe that also unexplained on the evidence was why Mrs McDade and Mr McDade would not obtain assistance in their domestic life from the sisters and brothers of Mr McDade who live in Perth.  He then went on to say that it was true that family pressure was frequently the effect of making of orders which resulted in incarceration, but that incarceration followed from the conduct of one of the members of the family.  The result is that the situation must have been anticipated and the applicant has contributed to the present emotional state.  His Honour was conscious of the requirement of special circumstances to be shown.  The present evidence of the medical condition of Mrs McDade following the successful completion of her pregnancy was not, in his opinion, evidence which discharged that onus.  In his opinion, special circumstances were not established.

7                     Mr McDade made substantial and articulate and passionate submissions to us about the situation of his family and, in particular, the situation with his wife and the nine year old son, Glenn, in support of his contention that this was an appropriate case for his release on bail.  He referred to material that was not before Nicholson J, in particular, a report of 19 October from a Dr Phil Watts, a clinical and forensic psychologist, concerning Glenn McDade, the nine year old son.  This is by way of a letter of referral to the Warwick Child and Adolescent Clinic.  In that letter of referral, Dr Watts mentioned his involvement with the McDade family over a period of eight months on an intermittent basis, the complex legal situation that they faced and the fact that Mr McDade is Glenn’s primary caregiver.  It was said by him that Glenn is well-bonded with the father whereas Mrs McDade had been a fulltime worker.  Since Mr McDade had been reimprisoned, Glenn was showing classic separation anxiety issues.  He had been suffering from headaches and stomach aches and sleep disturbance. These symptoms have become extremely bad over the past few weeks since his father was readmitted to prison.  The family situation was further complicated by Mrs McDade being treated for clinical depression by the Osborne Park clinic.  She was having trouble finding suitable medication and was on to her third medication already.  With the difficulty of caring for a premature newborn baby and suffering post natal depression, she was having trouble meeting any of Glenn’s needs.  He pointed out that the McDades had not spoken to Glenn about the fact his father was on remand.  They were determined to fight the matter in court because they believed that Mr McDade will eventually be found to be innocent, so Glenn believes his father is working away from home.

8                     Consequently, Dr Watts said, he referred Glenn to the Adolescent Clinic because he was showing psychological distress at the absence of his father and it was believed it would be beneficial that he receive some ongoing help to address his problems.  Unfortunately, the McDades did not have the financial means for him to continue to have private therapy so although he had had involvement with him in the past they were not in a position to meet his fees on an ongoing basis and it appears that subsequently Glenn was accepted by the Warwick Child and Adolescent Clinic.

9                     In addition to that material relating to the son Glenn, there was a report from Dr Taylor of the North Metropolitan Health Service dated 22 October, put before us in which she said that Mrs McDade was currently attending Osborne Clinic for treatment of a major depressive disorder occurring in the post-natal period.  She has been treated with both anti-depressant medication and counselling.  She is under very significant stress at present which has some impact on her speed of recovery.  She is coping very precariously in the absence of her husband who reduces her stress significantly by providing her with much needed emotional and physical practical support.

10                  The Court also notes the fact that Mr McDade has indicated in his affidavit material, at par 17 in particular, that he has strong family ties in Perth: his mother, who is a citizen; his brother, a permanent resident; and two sisters who are citizens, are resident in Perth and own their own property.  That circumstance, he points out, contributed towards establishing special circumstances when he was granted bail on 26 March and still pertains today.

11                  In respect of their position, however, he says there is no-one else to assist his wife and children because his brother and sister are in full time employment.  His mother is elderly and infirm and cannot provide any support.  His eldest son, Neil, has been advised by his ex-girlfriend that he is the father of her child.  They have agreed to live together and he is about to move out.  Neil’s situation has come as a shock and has added to the stress and depression being suffered by his wife.  He has already spent, at the time of swearing the affidavit of 4 November, a cumulative period of over three months in prison unconvicted of any offence or even formally charged with any offence.  He says his incarceration is a result of an administrative procedure.  He says he is a person for whom there is a very low risk of flight and that circumstance contributed towards establishing special circumstances when he was granted bail on 26 March.  He says he has had every opportunity to abscond before being arrested in June 1997 as he was fully aware of impending proceedings.

12                  These applications always raise matters of difficulty and sensitivity.  The Court unfortunately is bound to apply the legislative direction which does place a significant onus upon applicants for bail in these circumstances before the release on bail will be granted.  In this case, of course, Australia has continuing obligations to the United Kingdom, which obligations, as with its obligations to other countries affected by the Extradition Act, are reflected in the criteria for the grant of bail contained in s 21.

13                  In this case, the appellant, Mr McDade, has been found liable to extradition on review before a magistrate and also upon review by the judge at first instance, Carr J., it has been found the magistrate has not erred in his assessment.  The judgment of Carr J was a carefully reasoned account of the disposition of the issues put before him which focussed entirely on the one question and that was the sufficiency of the supporting statement provided under s 19.

14                  Whilst one can say no more of the prospects of success on appeal than that there is no doubt an arguable case at the same level of arguability that was put before Carr J, that is as much as one can say and at this stage the appellant has failed in his application for review before Carr J and that, as a matter of general policy, will be seen to lift the threshold somewhat in terms of what is required to constitute special circumstances for the grant of bail, the concept of special circumstances, of course, being an evaluative concept in respect of which the Court must assess all the circumstances, including the stage which the proceedings have reached.

15                  In this case, the position that faced Schoenmakers in the Schoenmakers’ appeal does not face this appellant.  His appeal is going to be heard in about five weeks time and whilst this Court does not treat lightly any deprivation of liberty of the subject or any person who comes before it, the fact is that given the expedition of the appeal, the adjournment having been sought and granted on the applicant’s own motion, the additional time which he will be required to spend in custody pending the hearing of that appeal, having regard to the comparative shortness of that time, does not give rise to a special circumstance in favour of the grant of bail.

16                  There are of course, we accept, serious pressures upon him and his family.  Those pressures in one form or another will face many people who are incarcerated, whether it is pending trial or whether it is pending extradition.  The Court cannot find that in the circumstances of this case, the situation is one in which the case is lifted to the level of special circumstances which would justify granting bail as requested and so the motion for bail will be dismissed.

Associate:

Dated: