FEDERAL COURT OF AUSTRALIA Cabal v United Mexican States [2000] FCA 1945 CARLOS CABAL PENICHE AND MARCO PASINI BERTRAN v UNITED MEXICAN STATES AND LISA HANNAN M V 700 OF 2000 GRAY J 22 DECEMBER 2000 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V700 OF 2000 BETWEEN: CARLOS CABAL PENICHE FIRST APPELLANT MARCO PASINI BERTRAN SECOND APPELLANT AND: UNITED MEXICAN STATES FIRST RESPONDENT LISA HANNAN M SECOND RESPONDENT ATTORNEY-GENERAL (COMMONWEALTH) (Intervening) THIRD RESPONDENT JUDGE: GRAY J DATE OF ORDER: 22 DECEMBER 2000 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The order made on 20 December 2000 is recalled. 2. Paragraph 1(a) of that order is amended by deleting the words "Michael John Hunter Davies as sureties" and substituting the words "as surety (save in respect of conditions (h) and (j))" and by deleting the word "their" and substituting the word "her". 3. Paragraph 1(j) of the order is amended by deleting the words "Australian Federal Police, 383 Latrobe Street, Melbourne" and substituting the words "Victoria Police, South Melbourne Police Station, Bank Street, South Melbourne". 4. The order as amended is confirmed. 5. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V700 OF 2000 BETWEEN: CARLOS CABAL PENICHE FIRST APPELLANT MARCO PASINI BERTRAN SECOND APPELLANT AND: UNITED MEXICAN STATES FIRST RESPONDENT LISA HANNAN M SECOND RESPONDENT ATTORNEY-GENERAL (COMMONWEALTH) (Intervening) THIRD RESPONDENT JUDGE: GRAY J DATE: 22 DECEMBER 2000 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 20 December 2000 I gave judgment on a bail application by Carlos Cabal Peniche and Marco Pasini Bertran pursuant to s 21(6)(f)(iv) of the Extradition Act 1988 (Cth). In that judgment I determined that Marco Pasini Bertran should be admitted to bail. I made an order that contained some eleven conditions upon which Mr Pasini should be admitted to bail. The matter has been re-listed before me as a matter of urgency today on an application on behalf of Mr Pasini to vary certain of the conditions that I had determined to include in the order. 2 In two respects the variations amount to formalities. In par 1(a) of my order of 20 December 2000 I directed that Mr Pasini be admitted to bail on condition that he enter into a recognisance in the sum of $500,000 with two sureties, Margaret Mary Davies and Michael John Hunter Davies, the amount to be secured by a charge on their house and land at 190 Church Street, Brighton. It appears that Margaret Mary Davies is the sole registered proprietor of that property. It is proposed on behalf of Mr Pasini that the order be amended to provide only for a single surety. That application I understand not to be opposed. 3 The second relatively unimportant matter relates to par 1(j) of my order of 20 December 2000. That paragraph of the order imposes a reporting condition, namely that Mr Pasini report twice daily, once between the hours of 6.00 am and 8.00 am and once between the hours of 6.00 pm and 8.00 pm. The order provides for such reporting to be the officer in charge, Australian Federal Police, 383 Latrobe Street, Melbourne, or to some other person at some other place agreed in writing by the Director of Public Prosecutions. I am informed that it is not practical to require reporting between those hours to the Australian Federal Police at 383 Latrobe Street, Melbourne. The parties are in agreement that I should substitute for that requirement a requirement to report to the Victoria Police at the South Melbourne Police Station in Bank Street, South Melbourne. 4 The third matter has been contentious. In par 1(h) and par 1(i) of my order of 20 December 2000, I imposed conditions that Mr Pasini refrain from communication, direct or indirect, with Carlos Cabal Peniche, his spouse Teresa Pasini Cabal and their children, and that Mr Pasini refrain from receiving from Mr Cabal or Mrs Cabal directly or indirectly any money, property or other benefit other than a weekly living allowance not exceeding $750. Counsel for Mr Pasini points out that the proposed surety, Ms Davies, has some nervousness about being surety for the performance by Mr Pasini of these conditions. To the extent to which his performance of those conditions lies outside Mr Pasini's power, I have some sympathy for the surety's position. 5 The requirement is that Mr Pasini refrain from communication and refrain from receiving certain things. It is obviously beyond the power of Mr Pasini to ensure that no-one else attempts to initiate communication or attempts to provide him with things that he should not be receiving. Obviously the conditions impose a requirement upon him that, in that event, he is immediately to resist any such attempt, to terminate any communication and to take steps to have returned any money, property or other benefit that he ought not to receive. 6 The difficulty from the surety's point of view, however, is that it is virtually impossible for her to be engaged in policing these activities. I can understand her nervousness that her home might have to be sold in the event that some breach were detected, even if it were not a harmful breach and even if the detection of it took place after the event. I appreciate that in those circumstances the surety would be entitled to apply to the Court to be relieved from the consequences of the order and the Court could determine whether there was anything that the surety could have done to prevent the breaches. It does not seem to me that that is a complete answer to the surety's difficulties. 7 Initially, counsel for Mr Pasini proposed that conditions (h) and (i) be deleted from par 1 of my order and that Mr Pasini give them to me as undertakings to the Court. It did seem to me that that course would be undesirable. Various events might follow from the breach of any of the conditions of bail, one of which is that it would be open to a police officer to arrest Mr Pasini pursuant to s 49 of the Extradition Act. It seems to me for that reason alone that conditions (h) and (i) ought to remain as conditions of bail applicable to Mr Pasini. If they became mere undertakings of his to the Court it would be necessary for the Court to order his arrest. That may take time and time taken may assist flight. 8 It does seem to me, however, that I ought to relieve the proposed surety from the obligation to police the performance of conditions (h) and (i). As counsel for Mr Pasini proposed in his reply, that could be done by a further amendment to par 1(a) of the orders to make it clear that the surety is not standing as surety in respect of any breaches of conditions (h) and (i). I propose to take that course. 9 It is therefore necessary for me to recall my order of 20 December 2000 and to make certain amendments to it. The order of the Court will be: 1. The order made on 20 December 2000 is recalled. 2. Par 1(a) of that order is amended by deleting the words "Michael John Hunter Davies as sureties" and substituting the words "as surety (save in respect of conditions (h) and (i))" and by deleting the word "their" and substituting the word "her". 3. Par 1(j) of the order is amended by deleting the words "Australian Federal Police, 383 Latrobe Street, Melbourne" and substituting the words "Victoria Police, South Melbourne Police Station, Bank Street, South Melbourne". 4. The order as amended is confirmed. 5. There be no order as to costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 22 December 2000 Counsel for the Applicants: Mr R Van de Weil QC and Mr J Manetta Solicitor for the Applicants: Phillips Fox Counsel for the First Respondent: Mr G Gilbert Solicitor for the First Respondent: Commonwealth Director of Public Prosecutions Counsel for the Third Respondent: Mr N Cust Solicitor for the Third Respondent: Australian Government Solicitor Date of Hearing: 22 December 2000 Date of Judgment: 22 December 2000