[Home] [Databases] [WorldLII] [Search] [Feedback] Federal Court of Australia

You are here: 

Maria Kainhoffer v the Director of Public Prosecutions and the Republic of Austria [1993] FCA 655; (1993) 120 ALR 98 (1993) 48 FCR 9 (24 December 1993)

COURT

CATCHWORDS

Extradition - extradition to and from foreign states - applicant seeking release on bail pending hearing of appeal from a single Judge of a State Supreme Court to the Full Federal Court - whether a single Judge of the Federal Court may grant bail pending the hearing of the appeal - bail not to be granted except in special circumstances - Meaning of special circumstances - Whether nature of incarceration combined with lack of previous experience of prison life may amount to special circumstances - whether impact of incarceration of parent on child may amount to special circumstances.

Extradition Act 1988 ss 3, 12, 15(6), 19(2) and 21

Federal Court of Australia Act 1976 ss 19, 20, 23, 24 and 25

Federal Court Rules 0. 52 r. 35

Hempel and Etheredge v. Moore 13 FCR 480

Schoenmakers v Director of Public Prosecutions 30 FCR 70

Schoenmaker v Director of Public Prosecutions (No. 2) [1991] FCA 457; 31 FCR 429

Forrest v Kelly (unreported judgment of the Full Court of the Federal Court, Melbourne, 20 December 1991)

The Queen v. Giordano (1982) 31 SASR 241

Holt v. Hogan [1993] FCA 463; 117 ALR 378

HEARING

Solicitor for the appellant: Mr C. Nyst of Witheriff Nyst

Counsel for the respondents: Mr P. Flannagan

Solicitors for the respondents: Commonwealth Director of Public

Prosecutions

ORDER

1. Maria Kainhofer be admitted to bail on the following
conditions:
(1) The applicant enter into a recognisance in the sum of
$50,000.00 in a form to be approved by the Director of
Public Prosecutions, with Franz Berner as surety with an
undertaking before a Justice of the Peace of $50,000.00,
and subject to her:
(a) surrendering any current passport presently in her
possession to the Director of Public Prosecutions;
(b) not applying for the issue of any passport or other
document of travel;
(c) residing at 55 Gordon Street, Hawthorne, Brisbane
or at such other address as may be approved in
writing by the Director of Public Prosecutions,
such approval to be obtained prior to the taking up
of such residence;
(d) not attending at any port of international
departure;
(e) not leaving the State of Queensland without the
prior written approval of the Director of Public
Prosecutions;
(f) reporting once daily between the hours of 8.00am
and 4.00pm to the Officer-in-Charge, Australian
Federal Police, corner of Marie and Graham Streets,
Milton, or as otherwise agreed in writing by the
Director of Public Prosecutions;
(g) prosecuting her appeal with all reasonable
dispatch;
(h) appearing personally at the hearing of the appeal
at the date and time to be directed by the District
Registrar and surrendering herself into the custody
of the Court and abiding by any further order of
the Court as to custody.
(2) Franz Berner and Eva Marie Bridget Berner voluntarily
surrender any current passport presently held by them to
the Director of Prosecutions, and not apply for the issue
of any passport or other document of travel.
(3) There be liberty to the Director of Public Prosecutions
to apply for revocation of bail in the event of any
material change of circumstances giving rise to a risk
that the applicant will not appear at the hearing of her
appeal.
2. The parties have liberty to apply.

DECISION

2. On 22 December 1993, Maria Kainhoffer lodged an appeal from part of an order of the Supreme Court of Queensland made on 10 December 1993 whereby White J confirmed the order of a Magistrate made on 1 November 1993 that Maria Kainhoffer ('the appellant') was eligible for surrender within the meaning of s. 19(2) of the Extradition Act 1988 ('the Act') in relation to four counts on a warrant of arrest of the appellant and ordered that the appellant be committed to prison to await surrender in relation to those counts. A notice of motion was filed on the same day seeking an order that the appellant, pursuant to s. 21(6)(f) of the Act be granted bail upon such terms and conditions as the court thinks fit. There is a preliminary question of the jurisdiction of a single Judge of this Court to entertain the notice of motion seeking the order that the appellant be granted bail in circumstances where the Act provides for an appeal to be heard by the Full Court.

3. Section 21(1) of the Act relevantly provides:

"Where a magistrate of a State or Territory makes an order under s.
19(9) or 19(10) in relation to a person whose surrender is sought by
an extradition country -
(a) in the case of an order under subsection 19(9) - the person; or
...
may, within 15 days after the day on which the magistrate makes the
order, apply to the Federal Court, or to the Supreme Court of the
State or Territory for a review of the order."

"The person or the extradition country, whether or not the person or
the country was the applicant for review under subsection (1), may
appeal to the Full Court of the Federal Court from the order of the
Federal Court or the Supreme Court."

"Where the person...:
...
(b) appeals under subsection (3) against an order made on that
review;
...
the following provisions will have effect:
...
(f) 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 and 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) 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."

7. Under the Federal Court of Australia Act 1976 ('the Federal Court Act'), by s. 19(1):

"The Court has such original jurisdiction as is vested in it by laws
made by the Parliament."

"Except as otherwise provided by this Act or any other Act, the
original jurisdiction of the Court in either Division shall be
exercised by a single Judge."

"The Court has power, in relation to matters in which it has
jurisdiction, to make orders of such kinds, including interlocutory
orders, and to issue, or direct the issue of, writs of such kinds, as
the Court thinks appropriate."

"(1) Subject to this section and to any other Act, whether passed
before or after the commencement of this Act (including an Act by
virtue of which any judgments referred to in this section are made
final and conclusive or not subject to appeal), the Court has
jurisdiction to hear and determine:
(a) appeals from judgments of the Court constituted by a
single Judge;
(b) appeals from judgments of the Supreme Court of a
Territory; and
(c) in such cases as are provided by any other Act, appeals
from judgments of a court of a State, other than a Full
Court of the Supreme Court of a State, exercising federal
jurisdiction."

"An appeal shall not be brought from a judgment referred to in
subsection (1) that is an interlocutory judgment unless the
Court or a Judge gives leave to appeal."

"The appellate jurisdiction of the Court shall, subject to this
section and to the provisions of any other Act, be exercised by a
Full Court."

"Applications:
(a) for leave or special leave to appeal to the Court; or
(b) for an extension of time within which to institute an appeal to
the Court; or
(c) for leave to amend the grounds of an appeal to the Court; or
(d) to stay an order of a Full Court;
may be heard and determined by a single Judge or by a Full Court."

15. I am not here concerned with the questions that were before French J. in Hempel and Etheredge v. Moore 13 FCR 480 which was a decision made under the Extradition Foreign Estates Act 1966, which Act made no provision for the granting of bail pending appeal; the review to the Federal Court of the Magistrate's decision to extradite was made pursuant to the Administrative Decisions (Judicial Review) Act 1977 ('the ADJR Act').

16. French J held that he did have power to consider the grant of bail pending an appeal to the Full Court of the Federal Court pursuant to O. 52 r. 35 of the Federal Court Rules which relevantly provides:

"The Court or a Judge may, upon such terms as it thinks fit, admit an
appellate to bail pending the hearing of his appeal or his
application for leave to appeal."

"To codify the law relating to the extradition of persons from
Australia to extradition countries and New Zealand and, in
particular, to provide for proceedings by which courts may determine
whether a person is to be, or is eligible to be, extrdited, without
determining the guilt or innocence of the person of an offence."

19. His Honour's decision is important for present purposes, primarily because of the consideration by his Honour of the requirement of "special circumstances". It does not appear, however, that the present question of jurisdiction was raised in that case. Neither was consideration directed to it on appeal (see 30 FCR 488), nor was it referred to by Foster J in Schoenmaker v Director of Public Prosecutions (No. 2) [1991] FCA 457; 31 FCR 429, when his Honour considered the question of the validity of the recognisances entered into as a condition of the grant of bail by French J, and the estreatment of those recognisances when Mr Schoenmaker did not appear when his appeal was called on.

20. On the proper construction of s. 21 of the Act, in my opinion the power conferred by s. 21(6)(f)(iv) may be exercised by a single judge.

21. The question then becomes one of whether there are "special circumstances" justifying the release on bail of the appellant.

22. It is clear that it is for the appellant to establish special circumstances and that that is a condition precedent to the court exercising its discretion to release. However, it seems to me to be wrong to segment the process unnecessarily by requiring a precise identification of what is a special circumstance and distinguishing that circumstance from circumstances which are not special.

23. In the explanatory memorandum which accompanied the  Extradition Bill 1987  the following explanation of the special circumstances requirement, enacted in s. 21(6)(f)(iv), appeared:

"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 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 notion of special circumstances is readily comprehensible
although the nature and combination of facts pertaining to a given
applicant and to the proceedings in which he is involved which may
constitute such circumstances are capable of almost infinite variety."

"It is unnecessary, and would be unwise, to attempt to compile a list
of circumstances which would be regarded as exceptional. The
totality of the circumstances must be looked at."

26. It is important to have regard to the principal objects of the Act and the clear concern of the legislature that experience has shown that there is a very high risk of persons sought for extraditable offences absconding and, as Foster J said in Schoenmakers (No. 2) those circumstances dictate that the Court approach the matter of bail with an attitude of circumspection. Cooper J said in Holt v. Hogan at 385:

"Against these matters one then identifies and weighs the particular
circumstances of the applicant for bail keeping in mind broad
community standards including a predisposition against unnecessary or
arbitrary detention in custody. In considering the circumstances of
a particular application for bail, one must not exclude those
circumstances which ordinarily would fall for consideration on an
application for bail where a person is charged domestically for the
commission of a crime in this country. All personal circumstances
are taken into consideration, notwithstanding that some or all of
them will again fall for consideration if special circumstances are
established as a condition precedent to the exercise of a
jurisdiction to grant bail."

28. The history of the matter is also relevant. On 22 January 1992 an extradition request from the Republic of Austria was referred to the Office of the Director of Public Prosecutions by the Attorney-General's Department in Canberra. The Office of the Director of Public Prosecutions is acting in this matter on behalf of the Attorney-General's Department pursuant to the provisions of s. 6(1)(k) of the Director of Public Prosecutions Act 1983. On 13 February 1992, a provisional arrest warrant for the appellant was obtained pursuant to s. 12 of the Act from Mr Quinlan, a stipendiary magistrate at Brisbane.

29. The appellant was arrested at her home at 55 Gordon Street, Hawthorne on that day by members of the Australian Federal Police pursuant to the provisional arrest warrant. And on the following day she appeared before Mr Randall a stipendiary magistrate in Brisbane. The appellant then applied for bail which was opposed by an officer of the Director of Public Prosecutions. The basis of opposition was that special circumstances which are required pursuant to s. 15(6) of the Act, were not established. Notwithstanding that opposition, the appellant was granted bail on condition that she report every Monday, Wednesday and Friday to the Officer-in-Charge, Australian Federal Police, Milton and that she reside at 55 Gordon Street, Hawthorne.

30. The matter was remanded until 13 March for mention and then adjourned to 20 and 21 May 1992 for hearing. On 20 May 1992 the surrender proceedings were adjourned to 6 July and her bail was varied to require reporting every Monday. She was to continue to reside at her home at 55 Gordon Street, Hawthorne. On 6 July the matter was further adjourned to 7 and 8 September and on 8 September 1992 the appellant appeared before Mr Krosch, a stipendiary magistrate who determined that she was not eligible for extradition to the Republic of Austria and she was then released from custody. Nearly six months later on 17 February, a second extradition request from the Republic of Austria concerned the appellant was referred to the Office of the Director of Public Prosecutions by the Attorney-General's Department in Canberra.

31. On 17 March 1993, a provisional arrest warrant for the appellant was obtained from Mr Schneider a stipendiary magistrate in Brisbane for the arrest of the appellant, again pursuant to the provisions of s. 12 of the Act. On 18 March she was arrested at her home and appeared before a magistrate in the Brisbane Magistrates Court. Again she was granted bail on entering into a recognisance in the amount of $1000 on condition that she surrender her current passport to the Australian Federal Police within 48 hours and not apply for a new passport while her recognisance remained in force. Again, that grant of bail required that special circumstances be shown (see s. 15(6) of the Act).

32. On 28 September the hearing to determine the appellant's eligibility to be extradited to the Republic of Austria was commenced in the Brisbane Magistrates Court before Mr Caldwell, a stipendiary magistrate. The warrant of arrest which was before the magistrate indicates that the appellant had been remanded in custody by order of the Salsburg State Court on 10 July 1990 and had been released on 8 August 1990 with directions not to flee, not to hide and to report to the police once a week. The warrant of arrest states that the appellant did not follow these directions and that she tried to evade justice by fleeing. The extradition hearing in relation to the appellant continued on 29 September 1993 and on 1 November, Mr Caldwell decided that the appellant was eligible to surrender to the Republic of Austria with respect to counts 2, 3(a), 3(g) and 4 found in the warrant of arrest.

33. An affidavit of Wendy Ann Barber deposes that the maximum penalties in Austria for the offences in relation to which the appellant was found eligible for surrender are imprisonment for six months to five years on count 2; imprisonment for a period up to three years, count 3(a); imprisonment for a period up to three years, count 3(g) and imprisonment from one to ten years on count 4. The stipendiary magistrate ordered that the appellant be committed to prison pending the issue of a surrender warrant with respect to those counts.

34. On 4 November 1993 the appellant sought an order to review the magistrates decision in the Supreme Court of Queensland pursuant to s. 21(1) of the Act. On 5 November an application for bail was made by the appellant in the Supreme Court of Queensland. The application was opposed by the Director of Public Prosecution and the application for bail was refused by Derrington J.

35. The application by the appellant to review the order of Mr Caldwell, the stipendiary magistrate, was heard by White J in the Supreme Court on 4 December 1993 and on 10 December 1993 her Honour made an order confirming the order of Mr Caldwell made on 1 November 1993. The appellant has remained in custody since 1 November 1993.

36. Affidavit material from each side indicates that both parties consider they have prospects of success on an appeal to the Full Court of the Federal Court.

37. I turn now to consider whether there are special circumstances and if so, whether bail should be granted and on what terms.

38. The appellant was born in Austria on 16 May 1953. She is currently aged 40. She lived all her life in Austria until 1980 when she met her present husband, Franz Berner in 1980 at which time she was 27 years old. She came with him to Australia for three months in 1980 and returned to Austria. In April 1982 she returned to Australia to live with him and they have lived together in a de facto marital relationship ever since. They have a daughter, Eva Maria Bridget Berner, born in Brisbane on 28 December 1983.

39. In July 1984, the appellant, her de facto husband and their daughter returned to Austria to live and in February 1990 returned permanently to Australia. The appellant has permanent resident status. The appellant indicates that in the late 1980s her family's hotel business suffered considerable financial difficulties and in particular the Alpenhoff Hotel which was then valued at approximately $A2 million and other family assets were sold to satisfy debts.

40. The appellant says that she was heavily involved in matters relating to the finalisation of the financial affairs of her family business in the late 1980s. The four counts on which she has been found eligible for deportation may be paraphrased by saying that the first relates to the giving of false evidence, by swearing a false oath of disclosure in January 1988 relating to the possession of items with "a retention of title". The second count essentially is one of attempted false pretences in respect of two computers and programs "by pretending to be solvent and willing to pay for the items". The conduct is said to have resulted in damages in the amount of ATS 38,400, which I understand is of the order of 7/8000 Australian dollars. The third count relates to the attempted obtaining of tax credits by the submission of false invoices in late '89 to early April 1990, and the final count relates to misappropriation of a leased Alpha motor vehicle, whose value is said at the time of the misappropriation to have been around $30,000. The essence of that charge is said to be a refusal by her to surrender the property on the termination of the agreement caused by the default in payment of the appellant.

41. In June 1990 the appellant returned to Austria to attend to the finalisation of her family's business problems. She was, shortly after her return to Austria, arrested and placed in custody. She says that she is not guilty of the allegations which have been made against her in Austria; felt that she was being unjustly victimised in that country. She returned to Australia believing that the Austrian Government would not seek to pursue her further. She was then arrested on 13 February 1992 and the curial history followed as I have indicated.

42. The appellant says that she has only ever lived in Austria and Australia and considers Australia to be her permanent home. Until she has to she does not wish to or intend to leave Australia where she has permanent residency status. It is important that in respect of the various bail conditions which have been imposed upon her, those conditions have been honoured punctiliously; in particular she remained with her family in this country carrying on their business and living in the matrimonial home after her discharge from custody on the finding of the magistrate in respect of the first application for extradition.

43. She swears that she is not guilty of any of the counts referred to in the warrant and that she has no prior convictions for any kind of criminal offence anywhere in the world. Apart from the period in Austria in July 1990, the first time she has ever spent any period in prison was on 1 November 1993. Since that time she has been held in custody in the Brisbane Women's Correctional Centre at Boggo Road, an experience that has been personally extremely stressful. She is incarcerated with women who have been convicted of murder and very serious offences of violence. Those women who have been granted bail whilst on remand do not include those charged with very serious offences or have very bad criminal records, and as a result the persons with whom she is obliged to spend her time in the Brisbane Women's Correctional Centre are those with the most serious kinds of criminal records. The atmosphere, she says, is extremely threatening in words and demeanour.

44. The incessant foul language of the inmates, the open lesbianism, and overt sexual behaviour of other female prisoners, and the fear of violence and feelings of insecurity engendered by the "endless talk of killing people and threats to kill" has affected her health. Prior to her imprisonment she lived with her husband and daughter at 55 Gordon Street, Hawthorne. She and her husband ran a business known as the Bulimba Fruit Market at 140 Oxford Street, Bulimba, and prior to her imprisonment she worked in the business with her husband.

45. Her husband starts work at approximately 5.30 each Monday through to Saturday and usually works until 7.30 pm. The appellant is the parent having the primary parental responsibility for the caring of her 9 year old daughter. Since her imprisonment her husband has been faced with the difficulty of whether to leave the daughter when he goes to the markets at about 5 o'clock until he returns to the home at about 11, or take her with him. There is no realistic opportunity for arranging for alternative care for the 9 year old daughter.

46. It seems to me that, looking at the matter as a whole, there are special circumstances here justifying the grant of bail. In particular I have had regard to the circumstances of her incarceration, namely that the appellant, a 40-year-old with no previous criminal convictions and with no experience of the harsh realities of prison life, is being detained in a maximum security prison with hardened criminals, coupled with her personal vulnerability as a result of those circumstances, and the significant effect this has had on her health. The incarceration of the mother has had a serious and adverse effect on the child, which is an added circumstance affecting the mother. The child's welfare is itself a relevant consideration.

47. There is before me a report by Dr Peter Mulholland, a consulting forensic psychiatrist, which impresses me as being candid and helpful. He refers in some detail to her reaction to the circumstances of her imprisonment at the Women's Correctional Centre and his results of his observations at an interview, and concluded:

"Mrs Kainhoffer has an adjustment disorder with anxious and depressed
mood. This is due to her being incarcerated, the overall legal
situation, and especially due to her separation from her family, in
particular her daughter.
Mrs Kainhoffer is finding it difficult to cope in a strange and alien
prison sub-culture especially as she is held in the maximum security
environment with dangerous prisoners.
There is no treatment that would be of any value in prison. If the
current state of affairs is to continue, then there is a likelihood
of her emotional state deteriorating, in which case she would have to
have treatment. However, at the present time, there is no treatment
that is going to be of any value except changing her environment.
This would mean being released from incarceration."

49. Of this report, Dr Mulholland said that the report would indicate that the daughter is having significant psychiatric difficulties. He said:

"I do not think that Mrs Kainhoffer is fully aware of this, and I
suspect that her husband is keeping the full extent of Eva's
difficulties from Mrs Kainhoffer in an understandable caring move to
lessen the stress upon her.
From a psychiatric point of view, I am in favour of Mrs Kainhoffer
being released on bail because of her psychiatric disorder, and
because of the effect on her daughter and the likelihood of both
mother and daughter's psychiatric conditions becoming worse as time
passes and Mrs Kainhoffer remaining in custody."

51. Here the period of incarceration has not been great as yet, although the circumstances of it are quite serious and have a serious effect directly on the mother and indirectly on the daughter. There is no expectation that the appeal will be heard in the immediate future. Secondly, I think it is accepted from the bar table that this is not a case where the major fear in respect of extradition proceedings, namely, that the party will abscond, is very high. One must always accept that there is a risk, but the facts of this case suggest that it is very much a small one.

52. Having regard particularly to the matters that I have referred to as special circumstances, on the whole of the evidence, I am prepared to admit the appellant to bail until the determination of her appeal or earlier order, and I propose to do that subject to conditions.

53. The orders that I make are as follows:

1. Maria Kainhofer be admitted to bail on the following conditions:
(1) The applicant enter into a recognisance in the sum
of $50,000.00 in a form to be approved by the
Director of Public Prosecutions, with Franz Berner
as surety with an undertaking before a Justice of
the Peace of $50,000.00, and subject to her:
(a) surrendering any current passport presently in her
possession to the Director of Public Prosecutions;
(b) not applying for the issue of any passport or other
document of travel;
(c) residing at 55 Gordon Street, Hawthorne, Brisbane
or at such other address as may be approved in
writing by the Director of Public Prosecutions,
such approval to be obtained prior to the taking up
of such residence;
(d) not attending at any port of international
departure;
(e) not leaving the State of Queensland without the
prior written approval of the Director of Public
Prosecutions;
(f) reporting once daily between the hours of 8.00am
and 4.00pm to the Officer-in-Charge, Australian
Federal Police, corner of Marie and Graham Streets,
Milton, or as otherwise agreed in writing by the
Director of Public Prosecutions;
(g) prosecuting her appeal with all reasonable
dispatch;
(h) appearing personally at the hearing of the appeal
at the date and time to be directed by the District
Registrar and surrendering herself into the custody
of the Court and abiding by any further order of
the Court as to custody.
(2) Franz Berner and Eva Marie Bridget Berner voluntarily
surrender any current passport presently held by them to
the Director of Prosecutions, and not apply for the issue
of any passport or other document of travel.
(3) There be liberty to the Director of Public Prosecutions
to apply for revocation of bail in the event of any
material change of circumstances giving rise to a risk
that the applicant will not appear at the hearing of her
appeal.
2. The parties have liberty to apply.