FEDERAL COURT OF AUSTRALIA Cabal v United Mexican States (No 2) [2000] FCA 445 EXTRADITION – extradition proceedings before magistrate – extradition objections – substantial grounds for believing that there are extradition objections – real risk test – materials relevant to extradition objections – material before the magistrate for the purposes of review by the Court. Extradition Act 1988 s 21 Zoeller v Federal Republic of Germany (1989) 23 FCR 282 applied R v Governor of Pentonville Prison, Ex parte Fernandez [1971] 1 WLR 459 applied WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 cited Commonwealth of Australia v Riley (1984) 5 FCR 8 cited United States of America v Holt (1994) 49 FCR 501 followed McDade v The United Kingdom [1999] FCA 1868 cited CARLOS CABAL PENICHE, MARCO PASINI BERTRAN v UNITED MEXICAN STATES, LISA HANNAN, COMMONWEALTH OF AUSTRALIA V 728 of 1999 FRENCH J 7 APRIL 2000 PERTH IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V728 OF 1999 BETWEEN: CARLOS CABAL PENICHE First Applicant MARCO PASINI BERTRAN Second Applicant AND: UNITED MEXICAN STATES First Respondent LISA HANNAN Second Respondent COMMONWEALTH OF AUSTRALIA Intervening JUDGE: FRENCH J DATE: 7 APRIL 2000 PLACE: MELBOURNE RULING ON MATERIAL ABLE TO BE CONSIDERED BY THE COURT ON A SECTION 21 REVIEW Introduction 1 These proceedings are brought, by way of review, under s 21 of the Extradition Act 1988 in relation to a magistrate's decision that the applicants are eligible for extradition to Mexico and her order for their commitment to prison to await surrender. 2 The proceedings before the magistrate occupied some seventy days and involved a substantial quantity of documents and written and oral testimony. There were debates from time to time about material which would be received and treated as evidence by the magistrate. Some documents were tendered, marked as exhibits and treated as evidence, others were tendered and marked for identification but not treated as evidence by the magistrate. Some material was referred to but neither tendered nor marked for identification. 3 A question has arisen concerning which of the material that the applicants sought to rely upon before the magistrate, in one way or another, can be considered by the Court on review. The question arises in connection with material relating to the applicants' objections to extradition that they are being prosecuted by Mexico on account of their political opinions or, if surrendered, are likely to be prejudiced or punished on account of those opinions. Grounds for Review Relevant to Extradition Objections 4 The relevant grounds for the review, set out in par 42 of the statement of claim, are as follows: "42. There are substantial grounds for believing that there are extradition objections within the meaning of section 7(b) and (c) of the Act in relation to all of the offences for which Mr Cabal and Mr Pasini are sought." The extradition objections asserted in par 42 rely upon s 7 of the Act which provides, inter alia: "For the purposes of this Act, there is an extradition objection in relation to an extradition offence for which the surrender of a person is sought by an extradition country if: . . . (b) the surrender of the person, in so far as it purports to be sought for the extradition offence, is actually sought for the purpose of prosecuting or punishing the person on account of his or her race, religion, nationality or political opinions or for a political offence in relation to the extradition country; (c) on surrender to the extradition country in respect of the extradition offence, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, religion, nationality or political opinions;" 5 Paragraph 42 is followed by sixty one paragraphs of particulars which, in summary, make allegations concerning: 1. The general nature of government in Mexico, the power of the President, ministers and senior officials, their relationship to business, the abuse of laws, particularly tax laws, the violation of human and other legal rights by law enforcement officials, the ineffectiveness of the judicial system and the dominance of the PRI party (particulars 3 to 15). 2. The applicant Cabal's political opinions relating to the Mexican government, their conformity with the political agenda of the former presidential candidate, Luis Colosio, assassinated during the 1994 campaign, conflict between Cabal and senior officials in the government of former President Salinas leading up to the presidential election in 1994, undisclosed contributions by Cabal to the Colosio campaign, his reluctance to give the same level of support to the replacement PRI presidential candidate, Zedillo, formerly Colosio's campaign co-ordinator, government intervention in banks controlled by Cabal and attempts to arrest him (pars 16 to 29). 3. The issue in 1994 of four warrants for the arrest of Cabal relating to transactions involving banks controlled by him, the complaints leading to the issue of the warrants being initiated by the CNBV (pars 30 to 38). 4. Attempts by the head of Interpol Mexico, Juan Ponce Edmonson, to procure Cabal's surrender, his statements that Cabal's problem was political and threats to Cabal's brother-in-law, his co-applicant Pasini, by one Juan Carlos Lopez (pars 39 to 40). 5. The highly publicised disclosure by Cabal to American press of previously undisclosed contributions to the PRI presidential campaign in 1994, the involvement in those contributions of subsequently elected President Zedillo, Zedillo and PRI's responses branding Cabal a liar and denial of access by the Executive Government of Mexico to Banco Union files that would substantiate Cabal's disclosures, such access being sought by the Mexican Congress (pars 41 to 45). 6. President Zedillo's specific interest in seeing Cabal's extradition case resolved favourably to Mexico (par 46). 7. Ponce's admissions to Cabal that his was a political prosecution, the suspension of the operation of most of the warrants against the applicants by Amparo courts of Mexico, Mexico's persistence with the extradition request notwithstanding the orders of the Amparo courts and Mexico's offer of improper inducements to Cabal, presentation of false evidence in relation to applications for bail by Cabal and Pasini and actual or attempted interference with or intimidation of witnesses for Cabal and Pasini (pars 46 to 52). 6 By reason of these matters it is asserted in the particulars to par 42 of the statement of claim (pars 53 to 61 inclusive) that there are substantial grounds to believe: "(53) That Mr Cabal's support of Mr Colosio as Presidential candidate, combined with his resistance to supporting Mr Zedillo in the same role, were seen by Mr Zedillo and his senior PRI allies as resistance by Mr Cabal to the personal authority of Mr Zedillo, to the traditional authority of the PRI's chosen President, and to the PRI's methods of dominating Presidential elections. (54) That Mr Zedillo and his senior PRI allies regard it as politically imperative that resistance of this nature be punished, and be seen to be punished. (55) That by September 1995, Mr Pasini's support of Mr Cabal and his family was seen by Mr Zedillo and his senior PRI allies as defiance of the personal authority of Mr Zedillo and the traditional authority of the PRI's chosen President. (56) That Mr Zedillo and his senior PRI allies regard it as politically imperative that defiance of this nature be punished, and be seen to be punished. (57) That prior to Mr Cabal's May/June 1999 disclosures, it was on account of the matters set out in sub-paragraphs (53) to (56) that Mexico sought the extradition of Mr Cabal and Mr Pasini from Australia. (58) That Mr Cabal's May/June 1999 disclosures were seen by President Zedillo, and his senior PRI allies, as an open attack on Mr Zedillo's personal authority, on the traditional authority of the PRI's chosen President, and on the PRI's methods of dominating Presidential elections. (59) That Mr Zedillo and his senior PRI allies regard it as politically imperative that an attack of this nature be punished, and be seen to be punished, and that Mr Cabal be discredited. (60) That it is on account of the matters set out in sub-paragraphs (53) to (59) that the PRI has pledged to bring the full weight of the law to bear against Mr Cabal. (61) That on surrender the full weight of the law which the PRI has pledged to bring to bear may include, in the cases of Mr Cabal and Mr Pasini, extra-legal measures, such as those recited in sub-paragraph (8) of these particulars." 7 It is these so called political objections, arising under ss 7(b) and (c) of the Act which require consideration of the material that may be taken into account upon review of the magistrate's order under s 21. Categories of Materials said to be Relevant to Extradition Objections 8 There was a variety of documentary material proffered to the magistrate in support of the contention under par 42 of the statement of claim. The classes of materials which were tendered to the magistrate and ruled inadmissible are as follows: 1. Material relevant to the operation of the political and legal systems in Mexico. This comprised reports from Amnesty International, Human Rights Watch, the Inter-American Commission on Human Rights, the US Department of State and other journal articles and publications. 2. Material relating to Cabal's political opinions, his defiance of the PRI, and the position of elites in Mexican society. This comprised elements of Cabal's proposed testimony as contained in his proof of evidence. 3. Material relevant to Mexico's regard for due process in relation to the case, the rule of law, the existence of a de facto dictatorship and the Mexican government's political use of the legal system. This comprised a variety of proposed testimony and documents reflecting upon the conduct of Mexican authorities and officials and their alleged disregard for due process in relation to the proceedings against the applicants. 4. Material relevant to the Mexican government's lack of interest in loans the subject of various of the offences alleged against Cabal and Pasini. 5. Material related to the Mexican government's refusal to provide to the Mexican Congress Banco Union files that would substantiate Cabal's 1999 disclosures concerning campaign contributions to the PRI. 6. Material relevant to the falsity of the Mexican government response. 7. Material relevant to show that there were no irregular transactions in the bank involving Cabal. 8. Material relevant to Pasini's perceived political stance. 9 There were numerous rulings made by the learned magistrate in relation to the various classes of materials set out above, largely by reference to their subject matter. It is necessary now to turn to the principles by which this Court is to ascertain the materials to which it can have regard in these review proceedings. Material before the Magistrate – The Act 10 It is a requirement of s 21 of the Extradition Act that where a person or the extradition country applies under that section for a review of a magistrate's order under s 19, the court to which the application is made "shall have regard only to the material that was before the magistrate" (s 21(6)(d)). That provision applies also to appeals against the decision of the court upon review and appeals to the High Court against orders made on the appeal. 11 The statute identifies certain of the materials before the magistrate which must be produced before any determination of eligibility for extradition can be made. These are the "supporting documents in relation to the offence" referred to in s 19(2)(a) of the Act. The supporting documents are defined in s 19(3) as comprising a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence or a duly authenticated copy thereof and duly authenticated statements in writing setting out respectively a description of and the penalty applicable in respect of, the offence (s 19(3)(c)(i)) and setting out the conduct constituting the offence (s 19(3)(c)(ii)). 12 Subject to their compliance with the condition of authentication, which is defined in s 19(7) these documents will establish for the purposes of s 19 proceedings, whether the offence alleged is an extradition offence according to the definition of that term in s 3 of the Act. They will also, by identifying the conduct constituting the offence, enable the court to determine whether the requirement of double criminality set out in s 19(2)(c) of the Act is satisfied. The magistrate is not entitled to receive evidence to contradict an allegation that the accused person has engaged in the conduct alleged in the authenticated statement of conduct or that the alleged conduct constituted the relevant extradition offence (s 19(5)) – Zoeller v Federal Republic of Germany (1989) 23 FCR 282. Evidence may be adduced however relevant to the requirement for due authentication as defined in s 19(7) of the Act and by way of translation of the contents of foreign language documents which are produced. In the ordinary course it would not be expected that that evidence would be particularly wide ranging or give rise to questions of the application or non-application of the rules of evidence applicable in curial proceedings. It is apparent that the range of evidence that may bear upon the extradition objections defined in s 7 is potentially far wider than that likely to be produced in relation to other aspects of s 19 proceedings. Substantial Grounds for Believing that there is an Extradition Objection 13 A magistrate will not make a determination of eligibility for extradition if satisfied by the person whose extradition is sought "that there are substantial grounds for believing that there is an extradition objection in relation to the offence" (s 19(2)(d)). That is to say, the person must satisfy the magistrate that there are substantial grounds for believing that the surrender of the person is sought for the purpose of prosecuting or punishing him or her on account of his or her political opinions (s 7(b)) or that he or she may be prejudiced at trial or punished, detained or restricted in personal liberty by reason of those political opinions (s 7(c)). 14 The Act does not require the proposed extraditee to satisfy the magistrate that either or both of these circumstances is the fact. It is sufficient to make substantial grounds for believing that to be the case. The term "substantial grounds" is ambulatory. It was used in R v Governor of Pentonville Prison, Ex parte Fernandez [1971] 1 WLR 459 at 467 as a construction of s 4(1)(c) of the Fugitive Offenders Act 1967 (UK). That provision dealt with extradition objections of the kind referred to in s 7(c) of the Extradition Act. It required that for such an objection to be made out it appear to the court of committal that the accused person might, if returned "be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his…political opinions." Lord Parker CJ at 467 (Melford, Stevenson and Cooke JJ agreeing) said: "There of course the burden is the same, to satisfy the court on a balance of probabilities, but what has to appear has to be merely that the applicant might if returned be dealt with in a certain way. As it seems to me "might" there does not mean "might" as a matter of mere possibility but it is for this court to say: has the applicant satisfied us that there are substantial grounds for thinking that he might be dealt with in a particular way? That as I see it is the question we have to ask ourselves." 15 In other statutory contexts the words "reasonable grounds to believe", conditioning the exercise of some power or discretion have been taken as importing a requirement of actual belief upon reasonable grounds before the relevant power can be exercised – WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 at 178 (Brennan J) and 184-186 (Lockhart J) and the authorities there cited. It is not surprising, however, that the condition which enlivens the exercise of a coercive power such as that conferred upon the Commissioner of the Australian Competition and Consumer Commission, formerly the Trade Practices Commission, under s 155 of the Trade Practices Act and like powers, will be construed with more rigour than a condition in similar form which enlivens provisions protective of the liberty of the subject. The requirement that the grounds for believing there to be an extradition objection should be substantial is evaluative in character. It must be applied having regard to the legislative purpose. In relation to the political objections in s 7(b) and (c) material which demonstrates a real or substantial risk that the circumstances described in those paragraphs exist or will exist may be sufficient to satisfy the condition in s 19(2)(d). The very nature of those objections is such that the evidence relied upon to make them out or to show substantial grounds for believing that they exist may be indirect or circumstantial in character. On the other hand, that which is necessary to demonstrate the other objections in s 7 is likely to be fairly clear-cut. Material Admissible before the Magistrate in Extradition Objections 16 If it be right that the accused person must demonstrate a real risk that the political objections defined in s 7(b) and (c) exist then such may be demonstrated by second order or derivative materials which might not be admissible in civil or criminal proceedings to prove, according to the ordinary rules of evidence and on the balance of probabilities, that the political objections exist. To require strict proof that the political objections exist would rob those objection provisions of much of their protective value. If the factum probandum in relation to the extradition objection is "substantial grounds for believing", in the sense of a real risk, that those objections exist then second order or derivative evidence may be treated as evidence which goes, not to prove the facts of the relevant objection but rather that there are substantial grounds for believing that fact exists. 17 Material may therefore be put before a magistrate to show substantial grounds for believing that an extradition objection exists even if that material might not be admissible to prove the existence of the facts constituting the objection. Important as this distinction is, it may make little practical difference in this case. For rules of relevance and fairness will govern the material that is received. General country information of the kind upon which the applicants seek to rely in this case may have little bearing upon the ad hominem criteria to be applied in deciding whether the objections under s 7(b) and (c) are made out. Material may also be excluded where its generality gives it little weight and makes it difficult for the requesting country to answer. Alternatively, it may be accepted but found not to give rise to substantial grounds for believing that the objection to which it is addressed is made out. The magistrate may reject material which is merely argumentative or offers unqualified opinions. It may be that in some cases hearsay evidence could be admitted subject to an opportunity being given to the requesting state to rebut it or to comment upon the weight to be given to it. Material "before the Magistrate" which can be considered on review. 18 Upon review by this Court under s 21 the material proffered to the magistrate by the parties and received in evidence is plainly material that was before the magistrate for the purposes of s 21(6)(d). So too, in my opinion, is material that was proffered to the magistrate and was rejected by her. For the Court may take a different view of the relevance or weight to be accorded to such evidence or of the criteria of fairness which govern its reception. It cannot be the case however, that material proffered to the magistrate on a particular factual issue can now be invoked in this Court in relation to another. Given the limitation imposed on the Court by s 21(6)(d) which requires it to consider only material that was before the magistrate, the party against whom the material was invoked would be unfairly deprived of the opportunity to tender further material in response to it on that new factual issue. In that sense material that was before the magistrate cannot be used to raise new factual questions on review. That does not, of course, prevent new legal issues from being raised on review. 19 On this basis Mexico may wish to address on the relevance and weight of the excluded materials, that is to say those which were tendered but not accepted as evidence by the magistrate. In so saying, I do not accept it is the Court's obligation to read every element of such materials as the country information or any other general material before the magistrate. It is counsel's duty to refer the Court to those aspects of the evidence which are said to be of relevance and weight. In reviewing the evidence the Court will be guided by the submissions and analyses offered in them. It is not necessary, in relation to the country information, for counsel for Mexico to do other than to address it at the level of generality with which it has been treated by the applicants. 20 There is no direct authority on the construction of s 21(6)(d) and its application in connection with materials relevant to extradition objections and particularly those under pars 7(b) and (c). In Commonwealth of Australia v Riley (1984) 5 FCR 8, it was said at 33 that, as a matter of substance although not of form, the evidence upon which the magistrate could act was "confined to evidence admissible in criminal proceedings in Australia". It is of importance to the understanding of that decision however, to note that the court was concerned with an extradition order under the Extradition (Foreign States) Act 1966. That Act authorised surrender by the magistrate on condition, inter alia, that there was produced to the magistrate "such evidence as would in the opinion of the magistrate … justify the trial of the person if the act or omission constituting that crime had taken place in, or within the jurisdiction of that state or territory" (s 17(6)(b)(i)). So evidence to demonstrate what was for all intents and purposes a prima facie case was necessary. It is not surprising that the Full Court held that it must be evidence admissible in criminal proceedings. Its comments were specifically related to hearsay evidence adverse to the extraditees in that case. 21 It is true that in United States of America v Holt (1994) 49 FCR 501, the Full Court set out a number of propositions said to be relevant to the construction of the 1988 Act including the following at 505: "The evidence must comply with Australian law: Commonwealth v Riley (1984) 5 FCR 8 at 33. In particular, hearsay material will be rejected. However evidence will not be inadmissible merely because it does not comply with local practices, eg those which require the use of direct speech or exclude evidence expressed in terms of a conclusion not specifically indicating an observation of the witness: Riley at 34." Holt was a case in which the Extradition Act was modified, by virtue of s 11 read with the Extradition (United States of America) Regulations 1988, to import a test reflecting the terms of the bilateral treaty between Australia and the United States, which required a sufficient evidence test for surrender. That test was similar in terms to that found in the 1966 Act. It is evidently equated by virtue of s 11(4) of the Act to a prima facie test. Commonwealth v Riley was therefore apposite to the modified statutory framework. Even so, neither that case nor Holt had anything to say about the kind of material that may be relied upon in determining extradition objections. 22 In the recent decision of the Full Court in McDade v The United Kingdom [1999] FCA 1868, Kenney J, with whom Marshall J and I agreed, set out in her reasons the same list of constructional propositions as were set out in Holt. There was however no issue as to admissibility before the Court. The case was rather concerned with the statement of conduct constituting the offence required to be produced under s 19. Nor was there any question of an extradition objection. Summary 23 In summary, I have come to the following conclusions in relation to the materials before the magistrate which may be considered by the Court upon review under s 21. It is not suggested that these are exhaustive propositions, but they are reached in the light of the particular debate in this case: 1. The materials before the magistrate comprise the testimony, documents and things which were received by the magistrate in evidence and those which were tendered to the magistrate but not accepted in evidence. 2. The Court upon review, is not limited to consideration of material received by the magistrate in evidence but may have regard to other material tendered to the magistrate but not received in evidence. 3. In determining which of the materials before the magistrate it is to accept and take into account on the review, the Court will apply criteria of relevance, weight and fairness. It may reject material, whether accepted by the magistrate or not, on the grounds that it is irrelevant or that it is of little weight or that to receive it would unfairly prejudice a party to the review. 4. In considering whether there are substantial grounds for believing that an extradition objection is made out for the purposes of s 19, neither the Court nor the magistrate is limited to evidence admissible, according to the rules of evidence, to demonstrate that the fact constituting the objection exists. 5. It is not open to a party on review to rely for a particular purpose upon material tendered to the magistrate for another purpose. 6. A party on review is not limited to the points of law argued before the magistrate except to the extent that any new point of law would necessitate: (i) reliance upon material not before the magistrate; (ii) reliance upon material tendered to the magistrate for a purpose other than that for which it was tendered where it was tendered for a particular purpose. 7. In relation to material proffered to but not accepted by the magistrate, the Court will hear submissions as to whether it should be considered as evidence in these proceedings. 8. In relation to wide ranging or discursive or voluminous material the Court may, if it accepts it, limit its consideration of such material to those elements to which it is directed by the parties. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 7 April 2000 Counsel for the First and Second Applicants: Mr JWK Burnside QC with Mr J Manetta and Mr E Aughterson Solicitor for the First and Second Applicants: Phillips Fox Counsel for the First Respondent: Mr GAA Nettle QC with Mr G Gilbert and Ms MM Gordon Solicitor for the Second Respondent: Commonwealth Director of Public Prosecutions Date of Hearing: 5 April 2000 Date of Judgment: 7 April 2000