FEDERAL COURT OF AUSTRALIA

Moloney v New Zealand [2005] FCA 245

EXTRADITION – application for review of extradition to New Zealand – bail allowed pending completion of review – exceptional circumstances.

ROGER MOLONEY AND RAYMOND GARCHOW V NEW ZEALAND AND MAGISTRATE DILLON

N 209 OF 2005

MADGWICK J

18 FEBRUARY 2005

SYDNEY

THE COURT ORDERS THAT:

1.                  The applicants, Roger Moloney and Raymond Garchow, be admitted to bail on the following conditions:

(a)                The applicants are to be of good behaviour.

(b)               They are to reside at an address notified by the legal representatives of the first respondent.

(c)                They are to report to the Officer in Charge of the Police Station at Campbelltown on Monday, Wednesday and Fridays of each week between the hours of 9.00 am and 5.00 pm.

(d)               During the period on remand, by agreement, they are to place themselves under the supervision of Rev. Brother Peter Burke and obey all directions given to them as to their conduct by the said Rev. Brother Peter Burke.

(e)                One acceptable person is to enter into an agreement without security to forfeit the sum of $100,000.00 if the applicants fail to comply with their bail undertaking.

(f)                 The applicants are to surrender their passports to the Officer in Charge, Federal Police, Sydney.

(g)                The applicants are to stay away from all points of departure from the Commonwealth of Australia.

(h)                The applicants are to give an undertaking not to apply for any new passport or travel document during the currency of bail.

(i)                  The applicants are to appear at the Federal Court, Sydney on such dates and times as they may be required in relation to the conduct of their applications for review.

(j)                 The applicants are to prosecute their applications for review with due diligence.

(k)               Bail may be entered before a Magistrate or Justice of the Peace.

(l)                  If there is any breach of any of the conditions now imposed, bail is to be automatically revoked and the applicants may be arrested by any Police Officer.

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

REASONS FOR JUDGMENT

Madgwick J:

1                     Before me are two applications for bail in connection with proceedings concerning review of a Magistrate’s decision to allow the extradition to New Zealand of the applicants.  It seems to me that the matter may be seen in the following way.  There is a presumption against bail and, as it were, an increased presumption on account of Magistrate Dillon’s decision.  The view that I should take before examining the matter is that probably the decision of Magistrate Dillon is right. 

2                     On the other hand, as the learned Magistrate acknowledged, it appears to be a somewhat finely balanced case as to whether the applicants should be extradited.  It does have some very unusual features and one could say that there are, without pre-judging the matter in any way, at least considerable prospects of a successful review so far as the applicants are concerned in the sense that there are serious matters to be argued, and which cannot be seen presently to compel a conclusion in favour of the extraditing state.  So that, in that sense, there are probably above average prospects of a successful review, without in any way getting into the merits of the review.

3                     The applicants’ innocence is to be presumed, and they are people of quite outstanding character apart from the present allegations.  In any case, there is little actual prospect of flight that I can really imagine.  For practical purposes there is no prospect of flight at all in the case of Brother Moloney, whose age would be particularly a factor.  In the case of Father Garchow, age is a factor to an extent.  It is clear that they are both men in poor health and that incarceration will aggravate their problems of mental health. 

4                     It is likely that the review will take some time to conclude, having regard to the difficult and complex questions of fact and law involved.  The applicants are in no sense persons who can be regarded as in the position of the typical putative extraditee of whom, of necessity, general prima facie rules have been enunciated by the courts.

5                     Further, however it comes about, the applicants have, in fact, been on bail.  They appear to have scrupulously complied with their bail conditions.  It is known that they will be on bail if they are extradited, so that to put them now into incarceration by way of a refusal of bail, even if there is a presumption in favour of it, would, in fact, be to exercise, for scant practical purpose, a discretion the result of which would be very untoward to them and rather out of proportion with what is called for, even allowing for the extreme seriousness of the New Zealand charges against them.

6                     Each of the applicants will be admitted to bail on the following conditions:

1.                  He is to be of good behaviour.

2.                  He is to should reside at an address notified to the legal representatives of the first respondent.

3.                  He is to report to the officer in charge of the police station at Campbelltown on Monday, Wednesday and Friday of each week between the hours of 9.00 and 5.00 pm.

4.                  During the period on remand he is to place himself under the supervision of Reverend Brother Peter Burke.

5.         The applicant is to obey all reasonable directions given to him as to his conduct by the said Reverend Brother Peter Burke.

6.         One acceptable person is to enter into an agreement without security to forfeit the sum of $100,000 if the applicant fails to comply with his bail undertaking.

7.         The applicant is to surrender his passport to the Officer in Charge, Federal Police, Sydney.

8.         The applicant is to stay away from all points of departure from the Commonwealth of Australia.

9.         The applicant is to give an undertaking not to apply for any new passport or travel document during the currency of bail.

10.       The applicant is to prosecute his application for review with due diligence.

11.       The applicant is to appear at the Federal Court, Sydney, from time to time as directed in respect of his application for review.

12.              Bail may be entered before a Magistrate or Justice of the Peace.

13.               If there is any breach of any of the conditions now proposed, bail is to be automatically revoked and the applicant may be arrested by any police officer.

Associate:

Dated:              15 March 2005