FEDERAL COURT OF AUSTRALIA

Zentai v Honourable Brendan O’Connor [2009] FCA 1597

EXTRADITION - application for bail pending determination of application for review - whether there exist special or exceptional circumstances

JURISDICTION – incidental power pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) of the Court to grant bail on judicial review application under s 39B of the Judiciary Act 1903 (Cth) rather than under the Extradition Act 1988 (Cth)

Extradition Act 1988 (Cth) s 19(9), 23

Federal Court of Australia Act 1976 (Cth) ss 19, 21, 23

Judiciary Act 1903 (Cth) ss s 39B(1), 39(1A)

Federal Court Rules O 4 r 9

Chan v Minister for Justice & Customs (2001) 108 FCR 65

Lim v Gregson [1989] WAR 1

Mercanti v Western Australia [2005] WASC 254

Peniche v Vanstone (1999) 96 FCR 38

United Mexican States v Cabal (2001) 209 CLR 165

Zentai v Republic of Hungary [2008] FCA 1335

Zentai v Republic of Hungary (2009) 260 ALR 400

Zentai v Republic of Hungary [2009] FCA 284

Zentai v Republic of Hungary [2009] FCA 511

CHARLES ZENTAI v THE HONOURABLE BRENDAN O'CONNOR, COMMONWEALTH MINISTER FOR HOME AFFAIRS, COMMONWEALTH ATTORNEY-GENERAL, BARBARA LANE and THE WESTERN AUSTRALIAN OFFICER IN CHARGE, HAKEA PRISON

WAD 220 of 2009

MCKERRACHER J

24 DECEMBER 2009

PERTH

THE COURT ORDERS THAT:

Pursuant to section 23 of the Federal Court of Australia Act 1976 and Order 4 Rule 9 of the Federal Court Rules that both

1.         the warrant issued by the Third Respondent, a Magistrate of the State of Western Australia dated 20 August 2008 pursuant to section 19(9) of the Extradition Act 1988 (Act), committing the Applicant to imprisonment in Hakea Prison, Canning Vale, Western Australia; and

2.         the surrender warrant issued by the First Respondent under section 23 of the Act on 12 November 2009 authorising the Officer in Charge of Hakea Prison (Fourth Respondent) to release the Applicant into the custody of officers of the Republic of Hungary,

be stayed until further order of the Court and that the Applicant after complying with the conditions set out in Schedule 1 to this Order, be released on bail with a duty to surrender to the Federal Court of Australia upon the order of the Federal Court of Australia on a date and time to be notified to the Applicant by an officer of the Federal Court of Australia.

Schedule 1

Pursuant to section 23 of the Federal Court of Australia Act 1976 and Order 4 Rule 9 of the Federal Court Rules the Applicant be released on bail on the following terms and conditions:

a.         $50,000.00 personal undertaking;

b.         $75,000.00 surety;

c.         Surrender all passports and not apply for any passports;

d.         Not to approach within 100 metres of any point of the domestic or international departure and not to leave Australia; and

e.         Reside at 2/10 Millar Place, Willetton, WA.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1                                             The applicant (Mr Zentai) applies to review a decision of the first respondent (the Minister) surrendering him to officials in Hungary for extradition.  These proceedings are brought pursuant to s 39B(1) and (1A) of the Judiciary Act 1903 (Cth) (Judiciary Act) and ss 19, 21 and 23 of the Federal Court of Australia Act 1976 (Cth) (FCA). 

2                                             Mr Zentai’s application for review in its amended form is as follows:

On the grounds stated in the accompanying affidavit of Denis Barich filed this day, the Applicant claims principal relief pursuant to sections 19, 21 and 23 of the Federal Court of Australia Act 1976 and interlocutory relief pursuant to Order 4 Rule 9 of the Federal Court Rules.

(a)        against the First Respondent, the Commonwealth Minister for Home Affairs (the Minister), acting as delegate of the Second Respondent, the Commonwealth Attorney General, in respect of the Minister’s decision made on 12 November 2009 (the surrender decision) that the Applicant may be surrendered fro extradition to the Republic of Hungary pursuant to sections 22 and 23 of the Extradition Act 1988 (the Act);

(b)        against the Second Respondent, in respect of a decision made by the Minister for Justice and Customs, acting as a delegate of the Second Respondent (the s.16 decision) to issue a Notice of Receipt of Extradition Request (the s.16 notice) under Section 16(1) of the Act;

(c)        against the Third Respondent, a Magistrate of the State of Western Australia in issuing a warrant dated 20 August 2008 pursuant to section 19(9) of the Act, committing the Applicant to imprisonment in Hakea Prison, Canning Vale, Western Australia (the committal order), and

(d)        against the Fourth Respondent, the Officer in Charge of Hakea Prison, in whose custody the Applicant is at present, for an order to release the Applicant from custody. 

3                                             Mr Zentai seeks orders as follows:

1.         An order in the nature of certiorari against the Second Respondent to quash the s.16 decision, and the s.16 notice made pursuant to that decision. 

2.         A declaration that the committal order is unlawful and of no legal effect, and an order in the nature of certiorari quashing the committal order.

3.         A declaration that the surrender decision is void and of no legal effect.

4.         An order in the nature of certiorari against the First Respondent to quash the surrender decision.

5.         An order for an injunction or an order in the nature of prohibition to restrain and prohibit the First Respondent from giving further effect to the surrender decision.

6.         An order in the nature of certiorari to quash the surrender warrant issued by the First Respondent on 12 November 2009 authorising the Officer in Charge of Hakea Prison (Third Respondent) to release the Applicant into the custody of officers of the Republic of Hungary (the surrender warrant).

7.         An order in the nature of habeas corpus directed to the Fourth Respondent requiring him to produce the Applicant to his Honourable Court and release the Applicant from custody. 

8.         Such other orders as this Honourable Court sees fit.

4                                             These reasons concern only the urgent motion for the granting of bail entitling him to be released from his current imprisonment. 

5                                             On 16 December 2009, bail was granted to Mr Zentai on similar terms and conditions to those imposed on previous occasions in relation to his challenges to extradition.  In doing so, I indicated that I would publish reasons.  These are the reasons. 

BACKGROUND

6                                             Although the background has been traced in previous judgments, it is convenient to update the current position as these proceedings are brought on a different jurisdictional basis from those preceding them. 

7                                             On 20 August 2008, Magistrate Barbara Lane, in the Magistrates Court of Western Australia, Perth determined that Mr Zentai was eligible for extradition to Hungary under s 19(1) of the Extradition Act and further issued a warrant under s 19(9) of the Extradition Act ordering committal of Mr Zentai to prison to await surrender.

8                                             Later on the same day, on 20 August 2008, Mr Zentai made an application to the Court under ss 21(2)(b) and 21(2)(b)(i) of the Extradition Act for an order to quash the order of Magistrate Lane made on 20 August 2008, by which Mr Zentai was found eligible for surrender for extradition to the Republic of Hungary.

9                                             In addition, on 20 August 2008, Mr Zentai made an application for an order that he be released on bail pursuant to s 21(6)(f)(iv) of the Extradition Act. 

10                                          On 20 August 2008, I granted Mr Zentai bail on the following terms:

The applicant Charles Zentai, after complying with the conditions set out in Schedule 1 to this order, be released on bail with a duty to surrender to the Federal Court of Australia upon the order of the Federal Court of Australia on a date and time to be notified to the applicant by an officer of the Federal Court of Australia.

Schedule 1

Pursuant to section 21(6)(f)(iv) of the Extradition Act 1988, the Applicant be released on bail on the following terms and conditions:

a.         $50,000.00 personal undertaking;

b.         $75,000.00 surety;

c.         Surrender all passports and not apply for any passports;

d.         Not to approach within 100 metres of any point of domestic or international departure and not to leave Australia; and

e.         Reside at 2/10 Millar Place, Willetton WA.

11                                          From 20 August 2008 until 31 March 2009, Mr Zentai was released on bail pursuant to my orders of 20 August 2008.

12                                          On 31 March 2009, Gilmour J dismissed Mr Zentai’s application to quash the Magistrate’s decision (Zentai v Republic of Hungary [2009] FCA 284).  His Honour further ordered a stay of the orders, resulting from his judgment of 31 March 2009, until 7 April 2009.

13                                          On 6 April 2009, Mr Zentai lodged an appeal from the whole of the judgment of Gilmour J given on 31 March 2009.  The appeal was brought pursuant to the provisions of s 21(3) of the Extradition Act. 

14                                          On 7 April 2009, his Honour ordered a further stay of his orders until 11 May 2009. 

15                                          On 7 May 2009, the orders of 31 March 2009 were further stayed until 4.00 pm on 12 May 2009. 

16                                          On 12 May 2009, Gilmour J granted bail to Mr Zentai (Zentai v Republic of Hungary [2009] FCA 511) in the following terms:

1.         Charles Zentai (“the Appellant”) after complying with the conditions set out in Schedule 1 to this Order, be released on bail with a duty to surrender to the Federal Court of Australia upon the order of the Federal Court of Australia on a date and time to be notified to the Appellant by an officer of the Federal Court of Australia.

2.         The Appellant’s passport, currently in the possession of the Magistrates Court of Western Australia, be transferred to the custody of the Australian Federal Police.

Schedule 1

Pursuant to s 21(6)(f)(iv) of the Extradition Act 1988, the Appellant be released on bail on the following terms and conditions:

a.         $50,000.00 personal undertaking;

b.         $75,000.00 surety;

c.         Surrender all passports and not apply for any passports;

d.         Not to approach within 100 metres of any point of the domestic or international departure and not to leave Australia; and

e.         Reside at 2/10 Millar Place, Willetton, WA.

17                                          On 24 August 2009, prior to the hearing of Mr Zentai’s appeal to the Full Court of this Court, on 25 August 2009, Mr Zentai filed further submissions for extension of bail pending the delivery of the Full Court’s decision.

18                                          On 8 October 2009, the Full Court (constituted by Black CJ, Tracey, and Barker JJ) dismissed Mr Zentai’s appeal (Zentai v Republic of Hungary (2009) 260 ALR 400).  The Full Court made the following orders:

1.         The appeal be dismissed.

2.         The appellant pay the first respondent's costs.

3.         For the purposes of s 21(6)(g) of the Extradition Act 1988 (Cth) the appellant is eligible for surrender within the meaning of s 19(2) of the Act in relation to an extradition offence.

4.         The order of the second respondent made pursuant to s 19(9) of the Extradition Act 1988 (Cth) on 20 August 2008 be confirmed.

5.         Execution of these orders and the order of the second respondent made 20 August 2008 be stayed for 14 days.

6.         The appellant’s bail is confirmed on the same terms as granted by Gilmour J on 12 May 2009. 

19                                          On 15 October 2009, Mr Zentai confirmed in writing to the Department of Attorney-General that he would not be instituting an application for special leave to appeal to the High Court of Australia from the Full Court’s decision of 8 October 2009.

20                                          On 22 October 2009, Mr Zentai presented himself to the Australian Federal Police and was placed in custody at Hakea Prison in Western Australia. 

21                                          Mr Zentai now applies for an order to be released on bail, until the hearing and determination of his application for review by this Court, upon the same terms and conditions as those ordered by Gilmour J on 12 May 2009. 

JURISDICTION AND POWER

22                                          The jurisdiction to review the determination made by the Minister under s 22 of the Extradition Act arises under s 39B of the Judiciary Act.  That jurisdiction having been invoked, the Court may, under s 23 FCA in respect of matters in which it has jurisdiction, make such orders including interlocutory orders as it deems appropriate.  This bail application is not made (nor can it be) under the Extradition Act.  These proceedings relate to but are not dependent upon the specific provisions of that Act. 

23                                          It is common ground that special circumstances need to be shown together with, in effect, no risk of flight before bail should be granted in extradition proceedings, particularly at an advanced stage of those proceedings.  Before turning to those considerations, it is necessary to consider whether or not in the context of an application which is based on s 23 FCA, the Court has jurisdiction and power under the incidental power provisions of s 23 FCA to grant bail on an application such as the present. 

24                                          The current case may be contrasted with Peniche v Vanstone (1999) 96 FCR 38and Chan v Minister for Justice and Customs (2001) 108 FCR 65 where Kenny J and Stone J respectively declined to grant bail on the basis that the primary relief sought in those cases would not, in any event, have brought about the release of the applicant in those cases from custody.  The primary relief (as amended) in the present case is somewhat different.  In Peniche, Kenny J (at 47) considered (obiter) that there was much to be said for the view that the provisions for remand on bail in the Extradition Act were not an exclusive code.  In Peniche, at p 47, Kenny J expressed the view (obiter) that those provisions:

do not preclude the power of the Court to entertain an application for an interlocutory injunction restraining a proper respondent from detaining an extraditee in custody in cases where the validity of decisions to arrest, or to remand in custody, or like decisions are the subject of challenge in judicial review proceedings: see, for example, Hempel v Moore (1987) 13 FCR 480; 70 ALR 714; Prevato v Governor, Metropolitan Remand Centre (1986) 8 FCR 358, and Elmi v Minister for Immigration and Ethnic Affairs (1988) 17 ALD 471 at 472-473. As I have sought to show, that is not the situation in these proceedings.

25                                          In Peniche as in Chan, the ultimate relief even if granted would not have had the effect of releasing the applicant from custody.  On the other hand, in the present application, Mr Zentai’s challenge includes two grounds which go directly to whether he is an extraditable person.  If he were to succeed on either of those grounds, it would not be open to the Minister to make a further determination under s 22 of the Extradition Act that Mr Zentai is to be surrendered in relation to the specified extradition offence.  The application (as now amended) does seek appropriate orders which would result in Mr Zentai’s ultimate release were the application to succeed and subject to further appeal. 

26                                          The two grounds of challenge which go to the heart of the issue as to whether he is an extraditable person are, first, that Mr Zentai is not ‘accused’ of an extradition offence as the extradition is sought only for the purpose of preliminary investigation. 

27                                          The second challenge is that Mr Zentai is not an extraditable person because the extradition offence in relation to which the Magistrate determined he was eligible for surrender under s 19(9) of the Extradition Act was not an offence in the Republic of Hungary at the time of the acts or omissions constituting the offence.  This argument relies on Art 2, para 5 of the Treaty on Extradition between Australia and the Republic of Hungary 1995 (the Extradition Treaty).  Accordingly, the present circumstances are distinguishable from the decisions in Chan and Peniche where the ultimate success of the outcome of those applications would not affect the warrant under s 19 of the Extradition Act under which the applicant was held in each instance. 

THE ARGUMENT IN SUPPORT OF BAIL

28                                          In United Mexican States v Cabal (2001) 209 CLR 165 the High Court of Australia held it did not have the power to grant bail under the Extradition Act until special leave to appeal was granted.  It did have an incidental power to its appellate jurisdiction (conferred by s 73 of the Constitution). 

29                                          That power included doing all that was necessary to effectuate the grant of appellate jurisdiction including the power to stay orders that were or might become the subject of its appellate jurisdiction and to grant bail so as to make the stay effective.  

30                                          However, it held that bail should only be granted in extradition cases when two conditions were fulfilled.  The first condition was that the circumstances of the case must be special in the sense that they were different from those that persons facing extradition would ordinarily endure when regard was had to the nature and extent of the extradition charges.  The second was that there be an absence of any real risk of flight considered independently of the effect of any proposed bail conditions.  It was held that where special circumstances were proven and there was no real risk of flight, bail may be granted unless the applicant posed a risk to the community or a particular individual. 

31                                          However, the Court did emphasise that one of the most important factors was the stage which the extradition proceedings have reached.  As the case proceeds through the legal system, the chance of obtaining bail reduces despite the existence of special circumstances.  Something ‘exceptional’ would need to be shown before bail would be granted by the High Court in extradition proceedings before a grant of special leave to appeal. 

32                                          The current circumstances are slightly different.  Although there has been a deal of preceding litigation, it is a different jurisdictional basis and it is the incidental power of s 23 FCA which falls now for consideration.  The power is to be exercised (if at all) by a single judge. 

33                                          Nevertheless, even though there are some stages beyond the present application for review, there is little doubt that the litigation viewed as a whole has advanced to a considerable degree. 

34                                          That said, the observations made by the High Court as to the need for ‘exceptional circumstances’ are expressly and inextricably linked to the high likelihood, indeed ‘presumption’, of flight when the only remaining legal avenue is a special leave application (and perhaps an appeal if special leave is granted) (Cabal at [64]). 

35                                          Not only is the current application brought at an earlier stage (albeit that the litigation has ensued for some time) but for reasons indicated below, the flight risk is virtually non-existent. 

SPECIAL OR EXCEPTIONAL CIRCUMSTANCES

36                                          Both in Cabal and in State Courts (Mercanti v Western Australia [2005] WASCA 254 at [17] and Lim v Gregson [1989] WAR 1 (at 13)) in the context of bail, the adjectives ‘special’ and ‘exceptional’ where applied to ‘circumstances’ are used interchangeably. 

37                                          Unlike the facts in Cabal, Mr Zentai is not an alien who has come relatively recently from another country, leaving a secret cache of money overseas and who has prepared false documents preparatory to flight.  In contrast, Mr Zentai has lived in Australia for over half a century.  His support base including family and medical facilities are all located nearby.  He is now aged 88.

38                                          In a report from Dr Donald Latchem, Cardiologist of 8 May 2009, Dr Latchem reports:

Since I last reported to you on his condition in November 2007 there does appear to have been a deterioration in his symptoms, in particular he reports an increase in the frequency and duration of attacks of paroxysmal atrial fibrillation.  He has had admissions to Emergency Departments both here at St John of God Hospital Murdoch and FremantleHospital on 29 January 2008, 10 August 2008 and 30 January 2009 with AF that’s reverted spontaneously within 24 hours.  In between times he is reporting palpitations on an almost daily basis and these are associated with generally feeling weak, “strange in the head” and occasionally are associated with chest pains and breathing difficulties …

Mr Zentai’s chief problems are ongoing paroxysmal atrial fibrillation which appears to be a chronic condition and we would have difficulty improving on the control as he’s already had toxic side-effects from the best anti-arrhythmic agent for this that’s currently available (Amiodarone).  The atrial fibrillation is likely to get worse with time and is likely to continue to cause Mr Zentai the recurrent symptoms described above but also places him at risk of complications of stroke and heart failure.  Whilst the stress of incarceration might exacerbate this condition I don’t have any conclusive evidence that this would be the case.  Mr Zentai is likely to require ongoing medical treatment for his problem and this may include admissions to hospital …

39                                          Mr Zentai was reviewed by a medical practitioner engaged for the Minister.  That practitioner’s conclusions, while perhaps a little less gloomy, were similar, broadly speaking.

40                                          In previous bail applications brought by Mr Zentai (such as Zentai v Republic of Hungary [2008] FCA 1335) it has been accepted that the risk of flight is extremely low.  His age, medical condition previously described in earlier applications, long association as an Australian citizen, strong family connections with the Australian community, lack of financial resources (as a pensioner) are circumstances which, of themselves, make any risk of his absconding most unlikely.  Added to those circumstances (and accepting that flight risk must be considered independently of any bail conditions), the conditions imposed on the orders directing his release including the impounding of his passport and the requirement that he regularly report to authorities and his movements be restricted realistically mean that there is no risk of Mr Zentai absconding. 

41                                          Although his medical conditions have previously been referred to, that has been updated in recent evidence. 

THE STRENGTH OF THE GROUNDS OF REVIEW

42                                          It is also common ground that the Court is required to form, at least, a preliminary view as to whether the grounds for review raise a serious question (Cabal (at [62])).  If it were apparent that the prospects of success on the main application were low, that would be a real factor to consider in the exercise of discretion as to whether or not to grant bail.  Given the serious nature of the reciprocal obligations owed under extradition treaties and the importance of such treaties to Australia, obviously weak or colourable claims would not attract a favourable exercise of the discretion to grant bail. 

43                                          In contrast but without in any way speculating on its ultimate outcome, this application for review is extensive, comprehensive and has been carefully prepared.  It raises a number of particular grounds of review based on specific provisions of the Extradition Treaty.  The Extradition Treaty by virtue of s 11(1C) of the Extradition Act and the Extradition (Republic of Hungary) Regulations modifies the operation of the Extradition Act.  The provisions of the Extradition Treaty, therefore, are important.  For Mr Zentai it is argued that some of the provisions are fundamental in the sense that they preclude entirely, as a matter of law, the Minister exercising his jurisdiction under ss 22 and 23 of the Extradition Act. 

44                                          In essence, Mr Zentai argues that he is not an ‘extraditable person’ within the meaning of s 6 of the Extradition Act, because he is not ‘accused’ of a war crime, his extradition having been sought by the Republic of Hungary only for the purposes of initial investigation.  Accordingly, there is no lawful basis for any proceedings against him under the Act.  It is argued that this ground is strongly supported by statements made by the head of the Military Division, Budapest Metropolitan Court that issued the international arrest warrant on which the Hungarian request for extradition is based.

45                                          It is argued that not only is this a substantial and significant ground for review but it also is a ‘special circumstance’.  Mr Zentai contends:

·                    Article 2 para 5 of the Extradition Treaty has the effect that the alleged war crime is not an ‘extradition offence’, which is the foundation of the request for surrender.  There was therefore no jurisdictional basis for the Magistrate (under s 19 of the Extradition Act) and the Minister (under s 22 of the Extradition Act) to determine Mr Zentai’s eligibility for surrender (Mr Zentai says this was an issue addressed, but not determined, in previous proceedings before the Full Court, which granted bail pending appeal);

·                    Article 3 para (1)(f)(ii) of the Extradition Treaty constitutes an absolute prohibition on the Attorney-General making an order to surrender Mr Zentai, because the Military Division of the relevant Hungarian court that issued a warrant for his arrest and before which he is liable to be tried (if charged) is a tribunal ‘that is only occasionally, or under exceptional circumstances, authorised to try persons accused of the offence for which extradition is sought’.

·                    As a matter of discretion, the Attorney-General, erred in law in failing to refuse surrender (or give proper or any consideration to the refusal of surrender) on the basis of Art 3 para (2)(f) of the Extradition Treaty, namely, that in the circumstances, including the age, health and other personal circumstances of Mr Zentai, his extradition would be unjust, oppressive, incompatible with humanitarian considerations or too severe a punishment. Relevant circumstances are:

(i)         The fact that he is an Australian national, to whom Australia owes obligations of primary concern and protection from unnecessarily undergoing extradition.

(ii)        The effect of ongoing proceedings and imprisonment on Mr Zentai, having regard to the fact that he is 88 years of age and suffers from a serious and debilitating medical condition.

(iii)       That the Minister, in discharge of Australia's international responsibilities under the International Covenant on Civil and Political Rights 1966 (ICCPR), cannot reasonably be satisfied that the Republic of Hungary would be able to afford Mr Zentai a fair trial, in accordance with international standards.  In particular, the request for extradition is based on depositions made by persons in proceedings in the (then Communist) Hungarian Peoples' Court in the late 1940’s.  If tried, Mr Zentai could not, as required by Art 8 of the European Convention on Human Rights 1950 (ECHR) and Art 14 ICCPR, confront and examine witnesses as to the veracity and voluntariness of their confessions.  Mr Zentai has asked whether the Hungarian prosecution authorities are able to produce for cross-examination the deponents on whose statements the Hungarian authorities would rely to found any prosecution.  No such information has been provided by the Republic of Hungary, nor has the Australian Government sought any assurances as to how a fair trial can be conducted in the absence of these principal witnesses.  Given that deficiency, it is said, the onus falls on the Australian Government to establish how it can surrender Mr Zentai for extradition to Hungary for investigation in Hungary if the Hungarian Government is unable to assure it that any criminal proceedings could and would be fairly conducted.

(iv)       The fact that Mr Zentai may be prejudiced at any future trial on the grounds of his nationality or political opinions by reason of bias on the part of the Hungarian People's Court in 1948 when it issued a warrant for his arrest. 

Relevance of Australia's international treaty obligations

46                                          A relevant consideration is the obligation of Australia to comply with extradition treaty arrangements.   However, that obligation is not an absolute one, but subject to the qualifying provisions of the Extradition Treaty, either requiring or permitting Australia to refuse extradition in particular circumstances, which (as the grounds for review explain) apply in this case.

47                                          It is argued that if the grounds for review were made out, then the surrender of Mr Zentai to extradition would be unlawful and Australia would be in breach of its international obligations to one of its nationals, by denying him the benefit of Art 2 para 5 and para 3(1)(f)(ii) of the Extradition Treaty.

Arguability and unresolved nature of outstanding objections

48                                          In the circumstances of this application, the fact that some of the grounds go to the fundamental lawfulness of the extradition request place them in a special category, as compared with appeal grounds which go to matters such as procedural or evidentiary flaws in the process of a magistrate determining eligibility for surrender under s 19 of the Extradition Act.  These unresolved grounds of objection, in contrast to the usual position following determinations under s 19 and s 21 of the Extradition Act may well, with other features of Mr Zentai’s circumstances, constitute ‘special circumstances’.  

Article 3 paragraph 2 of the Extradition Treaty

49                                          There are basically three limbs to Mr Zentai’s claim that various circumstances constitute injustice, oppression, are incompatible with humanitarian considerations, or entail too severe a punishment, within the meaning of Art 3 para 2.

50                                          The first concerns the state of Mr Zentai’s health and age - also a relevant consideration for this Court when entertaining this bail application with regard to special or exceptional circumstances. 

51                                          The second consideration is the capacity of the Military Division of the Budapest Metropolitan Court to provide fair procedures to determine Mr Zentai could be guilty of the alleged offence in November 1944.  It is argued that this is an international obligation, both of the Republic of Hungary, under Art 8 ECHR and Australia under Art 14 ICCPR.  Australia is a party to the latter including the two protocols to the Covenant.  Hungary is bound by the former.

52                                          It is argued for Mr Zentai that whereas breach of the ECHR is essentially a matter for the Republic of Hungary and may result ultimately, if Mr Zentai were ever put on trial, in litigation before the European Court of Human Rights, breach of the ICCPR immediately confronts Australia with its international law obligation to Mr Zentai not to extradite him in breach of the ICCPR and the Extradition Treaty.  Further, Art 9 ICCPR entitles Mr Zentai to his liberty subject only to procedures established by law.  The liberty of the subject is a significant aspect not only regarding this objection but also generally to the overall context of this bail application. 

53                                          A third alleged aspect of oppression falling within Art 3(2)(f) is the fact that under the Hungarian Criminal Code the apparently mandatory minimum sentence for the offence of war crimes is 10 years.  That, in the case of someone of Mr Zentai’s age is a virtual life sentence.

54                                          Finally, if bail is not granted, Mr Zentai, who is 88 years of age, would be likely to remain in prison for some considerable time.  That is a further ‘special circumstance’, together with his deteriorating medical condition, which his continued incarceration is likely to exacerbate.

CONCLUSION

55                                          In my view, there is a serious question to be tried.  Equally, for reasons indicated above, I am satisfied that this is an exceptional case and that bail should be granted.  I note also that bail is not opposed.  This is also significant, given the importance of Australia’s treaty obligations, a factor which most certainly would not have escaped the first and second respondents. 

56                                          Accordingly, the following orders will be made:

Pursuant to section 23 of the Federal Court of Australia Act 1976 and Order 4 Rule 9 of the Federal Court Rules that both

1.         the warrant issued by the Third Respondent, a Magistrate of the State of Western Australia dated 20 August 2008 pursuant to section 19(9) of the Extradition Act 1988 (Act), committing the Applicant to imprisonment in Hakea Prison, Canning Vale, Western Australia; and

2.         the surrender warrant issued by the First Respondent under section 23 of the Act on 12 November 2009 authorising the Officer in Charge of Hakea Prison (Fourth Respondent) to release the Applicant into the custody of officers of the Republic of Hungary,

be stayed until further order of the Court and that the Applicant after complying with the conditions set out in Schedule 1 to this Order, be released on bail with a duty to surrender to the Federal Court of Australia upon the order of the Federal Court of Australia on a date and time to be notified to the Applicant by an officer of the Federal Court of Australia.

Schedule 1

Pursuant to section 23 of the Federal Court of Australia Act 1976 and Order 4 Rule 9 of the Federal Court Rules the Applicant be released on bail on the following terms and conditions:

a.         $50,000.00 personal undertaking;

b.         $75,000.00 surety;

c.         Surrender all passports and not apply for any passports;

d.         Not to approach within 100 metres of any point of the domestic or international departure and not to leave Australia; and

e.         Reside at 2/10 Millar Place, Willetton, WA.

Associate:

Dated:         24 December 2009