Cabal v United Mexican States (No 2) [2000] FCA 295

FEDERAL COURT OF AUSTRALIA

Cabal v United Mexican States (No 2) [2000] FCA 295 EXTRADITION – release on bail pending review – second bail application – whether s 21(6) of the Extradition Act 1988 (Cth) precludes successive bail applications – comparison with s 15(3) of the Extradition Act 1988 (Cth) – existence of the right at common law to make successive bail applications – whether fresh circumstances required for successive bail applications. Extradition Act 1988 (Cth): s 15(3), s 21(6) In re Kray [1965] 1 Ch 736 cited Eshugbayi Eleko v Officer Administering the Government of Nigeria [1928] AC 459 cited In re Hastings (No 3) [1959] 1 Ch 368 cited In re Hastings (No 2) [1959] 1 QB 358 cited The State (Dowling) v Kingston (No 2) [1937] IR 699 cited Regina v Fraser and Jacobs (1892) 8 WN (NSW) 144 cited R v Malone (1903) St R Qd 140 cited Director of Public Prosecutions v Kanfouche [1992] 1 VR 141 cited Re Edwards (1988) 92 FLR 96 cited Ratten v The Queen (1974) 131 CLR 510 cited Re Knowles [1984] VR 751 cited

CARLOS CABAL PENICHE & MARCO PASINI BERTRAN v UNITED MEXICAN STATES & ANOR (No 2) V 728 of 1999 GOLDBERG J MELBOURNE 15 MARCH 2000

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No V 728 of 1999

BETWEEN: CARLOS CABAL PENICHE

First Applicant

MARCO PASINI BERTRAN

Second Applicant

AND: UNITED MEXICAN STATES

First Respondent

LISA HANNAN M

Second Respondent

JUDGE: GOLDBERG J

DATE: 15 MARCH 2000

PLACE: MELBOURNE

RULING

Introduction 1 On 17 December 1999 Ms L A Hannan, a Magistrate in Victoria, determined pursuant to s 19(9) of the Extradition Act 1988 (Cth) ("the Act") that the first applicant ("Mr Cabal") and the second applicant ("Mr Pasini") were persons eligible for surrender to the first respondent ("Mexico") in relation to a number of extradition offences. 2 The Magistrate, pursuant to s 19(9) of the Act, by warrant, ordered that the applicants be committed to the Melbourne Assessment Prison or Port Phillip Prison to await, in relation to the offences the subject of her determination, surrender under a surrender warrant or release pursuant to an order under s 22(5) of the Act. 3 On the same day as the Magistrate issued the warrants, the applicants filed an application in the Federal Court pursuant to s 21 of the Act for a review of the Magistrate's decision to commit the applicants to prison. In that application the applicants sought by way of interim relief orders pursuant to s 21(6)(f)(iv) of the Act that they be released on bail pending the review of the Magistrate's decision. I heard that application for interim relief on 22 and 23 December 1999. On 4 January 2000 I published my reasons for dismissing the application by each of the applicants that they be released on bail until the review had been conducted. I also ordered that liberty be reserved to the applicants to apply further for release on bail consistently with my reasons for judgment. In par 112 of my reasons I said: "As I have observed earlier in these reasons I am reserving liberty to the applicants to renew their application for bail if the conditions under which they are kept in Port Phillip Prison deteriorate or if the conditions under which they are transported and detained while outside the prison, whether in shackles or otherwise, are such as to warrant further consideration." 4 On 9 February 2000 the applicants filed a notice of motion for orders pursuant to s 21(6)(f)(iv) of the Act that they be released on bail until the review of the Magistrate's decision has been determined. That notice of motion was returnable on 6 March 2000. I indicated to the parties that I would not fix a date for the hearing of the motion until the material relied upon by the applicants in support of the motion had been filed and served. Thereafter the applicants filed and served a number of affidavits to which I shall refer which related to issues other than those in respect of which I had reserved liberty to apply. 5 I held a directions hearing on 22 February 2000 to determine how the matter would proceed. Counsel for the applicants submitted that it was open to the applicants to make a fresh or further application for bail and to bring before the Court material relevant to the application which included material which was available to the applicants at the time of the earlier bail application but which was not relied upon on that application. It was submitted that the fact that the material was not relied upon at the time of the last hearing did not preclude the applicants from raising the material on the further bail application. 6 Counsel for Mexico indicated that Mexico wished to raise two preliminary issues by way of objection to the proposed bail application: · Section 21(6)(f)(iv) of the Act did not allow more than one bail application before the review by the Court was undertaken. Subsumed in this objection was the submission that I had no jurisdiction to reserve liberty to the applicants to make a further application for bail as I had done on 4 January 2000. · If s 21(6)(f)(iv) did allow for more than one bail application it was not open to the applicants to rely on material which was available to them, or which could have been obtained by them, but was not relied upon at the time of the earlier bail application. 7 The parties agreed that it was desirable that these preliminary issues be determined before any hearing of the motion because their determination would influence, and have an effect on, the extent of the material to be relied upon by both parties. Accordingly I directed that written submissions be filed and exchanged and set a date for hearing Mexico's preliminary objections to the bail applications and the material to be relied upon by the applicants. 8 The affidavits filed in support of the motion dealt with matters other than the deterioration of the conditions under which the applicants have been kept in Port Philip Prison and the conditions under which they are transported and detained while outside the Prison. The issues covered by the affidavits filed by the applicants fall into the following categories: · Commercial transactions entered into by Mr Cabal during 1996. Mr Howard Schrader's affidavit deals with those matters. · Evidence as to the conditions in which the applicants were kept prior to the earlier bail application including evidence challenging and contradicting the affidavit of Mr Shane Kelly sworn on 22 December 1999 as to the conditions in the Sirius East Unit at Port Philip Prison. Mr Kelly's affidavit was relied on by Mexico at the earlier bail application. Mr Lavery, one of the applicants' solicitors, said that the applicants disagreed with Mr Kelly's evidence and that after the hearing on 22 December 1999 concluded, the applicants instructed their counsel to prepare affidavits from the applicants, an inmate of the Prison and Ms Nettlebeck, a solicitor to refute Mr Kelly's evidence. Those affidavits were prepared overnight, the affidavits of Ms Nettlebeck and the inmate were sworn and the affidavits of the applicants were finalised. A conference was held between the applicants and their solicitor and counsel on 23 December 1999 before the conclusion of the hearing at which the applicants expressed the view that the further affidavits should be filed and served but counsel disagreed. The affidavits were not filed on that day. The affidavits relied on are those of Mr Lavery, Ms Nettlebeck, the inmate of the prison and Mr Minc. · The contention that the conditions under which the applicants are kept in prison are in contravention of Australia's obligations under international treaties. The affidavits of Dr John Pace are relied upon. · The position of the applicants under Mexican law and the Mexican judicial system. Mr Minc has sworn an affidavit exhibiting unsworn affidavits by Mr Jose Luis Izunza Espinosa, Mr Ricardo Guerra Carrillo and Mr Alberto Conrado Zinser Cieslik. · The actions and activities of the applicants after they left Mexico in or about August 1994 - Mr Cabal has sworn an affidavit in which he sets out in considerable detail events which occurred in Mexico prior to him leaving Mexico and subsequently, all of which events occurred prior to the first bail hearing. Mr Cabal has also sworn a further affidavit in which he gives evidence in relation to his financial affairs and as to reasons as to why he says he will not abscond if granted bail. He relies upon his "supplementary statement" dated 22 December 1999 which was not tendered at the first bail hearing. Mr Pasini has sworn an affidavit in which he sets out in considerable detail matters relating to his personal and business background, his departure from Mexico in August 1994, his loss of business and his movements and activities from September 1994 including activities which arose in Spain, France, Argentina, Dominican Republic and his apprehension in Melbourne. He also refers to "Amparo" proceedings in Mexico in relation to the warrants for his arrest and to threats to his family members and associates. He also complains that he will not receive a fair trial on his return to Mexico. All these matters were known to Mr Pasini prior to the earlier bail application save for the fact that approximately two weeks before he swore his affidavit on 25 February 2000 the judge considering his application to have the warrants quashed was changed. · The conditions under which the applications have been detained in prison subsequent to the earlier bail application. Mr Cabal and Mr Pasini give evidence as to their current living conditions and general treatment in prison which they say are identical to the living conditions and general treatment of all convicted prisoners in Sirius East. The matters to which they refer (par 31 and par 67 respectively) are the conditions and treatment which existed in substantially the same form at the time of the first bail hearing. However the applicants do raise circumstances which have occurred since the earlier bail application. 9 In summary, the issues which the affidavits address are: · The continued harassment of the applicants and the further deterioration of their conditions of detention; · Refutation of Mr Kelly's evidence that Sirius East is a safe environment and that the applicants were transferred there for their own protection; · Refutation of the evidence that the decision to place the applicants on the high security transport list was based on the reason that Mr Cabal had offered a prisoner money to assist an escape; · The applicants' state of mind when they determined to remain outside Mexico and the reasons they sought to avoid arrest by the Mexican authorities; · The contention that the applicants' legal and political status in Mexico is now significantly different than was the position in 1994, which position would be undermined if they were to abscond. · The contention that Australia has breached its obligations under the International Covenant on Civil and Political Rights in the manner in which it has detained the applicants.