FEDERAL COURT OF AUSTRALIA

Heslehurst v Government of New Zealand [2000] FCA 937

EXTRADITION – bail – appeal against decision of magistrate that applicant be extradited – applicant in custody – special circumstances – need for medical treatment – special circumstances not found – application for bail refused

Extradition Act 1988 (Cth) s 35

Shoenmakers v DPP (1991) 30 FCR 70

McDade v United Kingdom [1999] FCA 1685

MAXWELL JOHN HESLEHURST v THE GOVERNMENT OF NEW ZEALAND

N 301 of 2000

BRANSON J

SYDNEY

3 JULY 2000

THE COURT ORDERS THAT:

The application for the applicant to be released on bail be dismissed.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     The applicant, Mr Heslehurst, has sought review by the Court of a decision of a magistrate made on 23 March 2000 that he be surrendered to New Zealand and that, pending the execution of the surrender warrant, he be committed to prison.  The review hearing has been listed for 10 August, 2000.

2                     In the meantime Mr Heslehurst seeks to be released on bail.

3                     Section 35(6) of the Extradition Act 1988 (Cth) (“the Act”), provides:

“(6)     Where the person or New Zealand:

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

the following provisions have effect:

…

(g)               if:

(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 (f);

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)             if there are special circumstances justifying such a course, 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.”

4                     Mr Heslehurst submits that there are special circumstances justifying his release on bail.  By his written outline of submissions, Mr Heslehurst seeks, in the alternative, an order under section 35(6)(g)(iii), that the applicant be “held in such custody as is consistent with the summary of the report of Dr John Greenaway dated 21 June, 2000.”  This alternative ground of relief was not pressed in oral submissions.  Nor was I provided with any assistance as to the nature of the custody which would be consistent with the summary of Dr Greenaway’s report.  I do not consider it necessary to consider this aspect of Mr Heslehurst’s application further.  To the extent that it is necessary for me to do so, I record that this alternative claim for relief is rejected.  The reasons hereafter are concerned only with the application for release on bail.

5                     First, as a threshold question, consideration is to be given to whether there are special circumstances justifying the release on bail of Mr Helsehurst.  Secondly, if there are such special circumstances, consideration is to be given to whether, in the exercise of its discretion, the Court should make an order for his release on bail, and if so, on what terms and conditions.

6                     As French J observed in Shoenmakers v DPP (1991) 30 FCR 70, the reference to “special circumstances” in the context of the Act 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.

7                     Mr Heslehurst contends that the special circumstances which attend his application are:

(a)                the state of his health, his need for special medical treatment and the effects on his health of continued incarceration pending the hearing and determination of his application; and

(b)        the prospects of success in his application for review of the magistrate’s decision.

8                     Dr Bruce Westmore, forensic psychiatrist, has provided a report to the applicant’s solicitors, which has been received in evidence.  He has diagnosed, “an adjustment disorder with a depressed mood state.”  Dr Westmore concludes in his report:

“Your client is a 46 year old man who looks older than his stated years he has without any doubt multiple medical problems which are of considerable significance and potentially life threatening.

Prison would be a particularly difficult and potentially dangerous environment for this man, not only from a physical harm perspective, but because of risks he might face due to his medical conditions.

While other specialists might comment on the care available for general medical conditions, my own experience in the area of psychological medicine is that patients do not get regular or standard treatment for general psychological and psychiatric problems unless there is a crisis.  He probably has been fortunate, in that he has had some contact with a psychologist at this time although I do note that intervention appears to have commenced in April this year, he has been in custody since 1996.

While I have not diagnosed post traumatic stress disorder in this man, I have indicated I do believe there are some unresolved issues to do with his involvement in the Vietnam war.  These need to be explored by a psychiatrist and they may eventually lead to the diagnosis suggested by the psychologist, but on the symptoms he describes, I am unable myself at this time to make the diagnosis.  I note he provides a history of not talking about his past war experiences.  This might suggest the application of defence mechanisms such as denial, suppression and repression.  All of these issues will be revealed during the course of any therapy he should receive.”

9                     It may be noted that Dr Westmore carefully qualifies his opinion as to the care available for general medical conditions in prison.  He expresses the view, however, from his own experience in the area of psychiatric medicine, that patients do not get regular or standard treatment for general psychological or psychiatric problems unless there is a crisis.  He noted that Mr Heslehurst has had some contact with a psychologist starting from April this year.

10                  Dr John Greenaway, a physician, has also reported that the applicant has major health problems.  His report states:

“In the first place, the hypertension, if anywhere near the figures I obtained, and I suspect it is, is severe and needs urgent attention.  It may well be being aggravated by sleep apnoea, if his claim that his machine is not appropriately calibrated is correct.  Both of these facets need supervision promptly.  Quite apart from this, the metabolic state, regarding his diabetes and renal function, needs review, and I did not have the benefit of any previous laboratory studies, or urinalysis.  Superimposed on this, quite apart from other problems such as the psoriasis, is his morbid obesity. 

Putting all this together, he needs regular attendance and supervision by a combined metabolic, hypertensive and respiratory team at one of the teaching hospitals.  This, in relation to his present site, most appropriately could be arranged at Westmead Hospital.

I do not anticipate that there will be any question of admission to hospital, except perhaps overnight to the sleep laboratory to calibrate CPAP.  There will be the need for regular outpatient attendances for diagnostic tests and the management of his condition.”

11                  Of particular significance on the present application is the question of whether Mr Heslehurst’s health problems are being, or are likely to be, exacerbated by his incarceration.  Neither of the reports of Dr Westmore and Dr Greenaway is of particular assistance in this regard.  Dr Westmore comments generally on prison being a “potentially dangerous environment” for the applicant because of risks he might face due to his medical conditions - but he frankly acknowledges that other specialists “might comment on the care available [in prison] for general medical conditions.”  As to the “adjustment disorder with a depressed mood state” diagnosed by Dr Westmore, it is to be noted that the relevant stressors identified by Dr Westmore are to a significant degree stressors likely to bear on any person suffering incarceration.

12                  On the other hand, Dr Richard Matthews, the Acting Chief Executive Officer of the Corrections Health Service, has reported:

“The Corrections Health Service has extensively investigated Mr Heslehurst.  He has been evaluated by the Metabolic Hypertensive and Respiratory Team at the Prince of Wales Hospital.  Mr Heslehurst has been escorted to specialist outpatient services on a total of nine occasions.  In addition, he has been referred to a Sleep Disorder Clinic at the Westmead Hospital.  The Polysomnography report is enclosed for your information.  A new mask has been ordered for Mr Heslehurst.  He is on the waiting list to see the dentist for a new dental plate.

Certainly, Mr Heslehurst's hypertension, diabetes and other conditions have been extremely treatment resistant.  This can be attributed in the main to morbid obesity.  His continued weight gain has made management extremely difficult.  The Metropolitan Reception and Remand Centre at Silverwater has daily attendance from a medical officer and as I previously stated, the outpatient interventions have been attended to at the Prince of Wales Hospital.

Mr Heslehurst has attended the Diabetic Clinic, the Renal Clinic, the Ophthalmology Clinic, and clinics conducted by physicians at the Prince of Wales Hospital.”

By a further letter of today’s date Dr Matthews has reported:

“Mr Heslehurst's hypertension and diabetes are extremely treatment resistant, principally because of his morbid obesity.  This treatment resistance would be present whether he was in custody or at liberty.

I can only assume that Dr Greenaway did not have access to the medical file when he interviewed and examined Mr Heslehurst.  That is, his examination which shows that Mr Heslehurst has been reviewed in the renal clinic, diabetic clinic and in various other outpatient departments of the Prince of Wales Hospital.  As soon as the court determines Mr Heslehurst's current matter, the Corrections Health Service will arrange for him to return to Long Bay Medical Hold for further assessment at a renal and diabetic clinic.  In the meantime, his condition is regularly reviewed by medical staff at the Metropolitan and Remand Centre.  I have arranged for Mr Heslehurst to be again placed on the doctor's list at that centre as soon as his court commitments allow.

As stated in my previous report, a new mask has been ordered for his sleep machine.  Unfortunately his medical file left my office over the weekend and is in transit to the MRRC and I have been unable to answer your question about the two diabetic comas allegedly suffered in April within the time frame allowed.”

13                  I have been advised in court without objection that Mr Heslehurst attended the Prince of Wales Hospital pursuant to an appointment on 27 August of 1998 and was admitted without appointment on 16 June 1999 and 21 January 1999 was also admitted in front of me that the doctor's list referred to in Mr Matthews’ latest report is a waiting list to see a general practitioner.

14                  I am satisfied that the Corrections Health Service is alert to Mr Heslehurst’s medical problems and has taken steps to have appropriate treatment made available to him.  There is nothing before me to show that he would have ready access to a superior regime of health care if he were released on bail.

15                  As to the prospects of success of the application for review, it is not appropriate to say more at this stage of the hearing than that I am willing to proceed on the basis that Mr Heslehurst has an arguable case for review.  However, in this context it is appropriate to note that the delay to date in the hearing of the application has been at the request of Mr Heslehurst, who is seeking to gain legal representation for the hearing, and in comparison with the time that the applicant has been in prison, the time remaining until the listed hearing is short.

16                  An application of this kind is bound to raise issues of difficulty.  The Court does not treat lightly the deprivation of liberty of any person before it, particularly where that person is unwell.  However, the Court is obliged to apply the direction of the legislature which places a significant onus in a case such as this on an applicant for bail.  It is to be remembered that Australia has continuing obligations to New Zealand which are reflected in the terms of         s 35(6) of the Act.

17                  I accept that the applicant is in seriously poor health.  I also accept that his continuing incarceration is placing considerable pressure on him and his family and that such pressure is of concern so far as his health is concerned.  However, as the Full Court pointed out in McDade v United Kingdom [1999] FCA 1685:

“Pressures in one form or another will face many people who are incarcerated, whether it is pending trial or whether it is pending extradition.”

18                  Having regard particularly to the medical and psychological services available to Mr Heslehurst in prison, the absence of evidence of an alternative medical regime for him should he be released from prison, and the comparatively short time remaining until the hearing of his application for review, I am not satisfied that the circumstances of Mr Heslehurst constitute “special circumstances” within the meaning of the Act.  That means that this application fails at the threshold.

19                  However, even if I am wrong in this, I would not in the exercise of the Court’s discretion order Mr Heslehurst’s release on bail.

20                  I note that Mr Heslehurst will, if returned to New Zealand, be required to answer serious charges there.  The legislature has considered that the “special circumstances” provision is necessary because there is a high risk of persons sought for extradition offences absconding.  The evidence before me shows that Mr Heslehurst has failed on more than one occasion to meet bail obligations in New Zealand and indeed, as it appears, came to Australia to evade a criminal hearing in New Zealand.

21                  In reaching the decision that I would not exercise the Court’s discretion in favour of releasing Mr Heslehurst, I have carefully considered all of the evidence and submissions put to me by Mr Lancaster.  However, giving all due weight to Mr Heslehurst’s health, his family circumstances in Australia, the bail conditions to which he and his wife are willing to submit (which include a $5,000 surety, reporting and residence conditions and that he will not attend any international point of departure from Australia), I am still not satisfied that he should be released.  It is not only that he has breached bail conditions previously.  I note that there is no record of his having entered Australia and I have not been provided with any evidence as to the means by which he did enter Australia.  In the circumstances I consider that there is a real possibility that he entered Australia under a false name, or otherwise irregularly, and that he may, if released on bail, decide to depart Australia in a similar way.

22                  The interlocutory application for the applicant to be released on bail until the review has been conducted will be dismissed.

Associate:

Dated:                                          11 July 2000