Cabal & Anor v Sec of Dept of Justice Vic

[2000] HCATrans 420

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No M91 of 2000

B e t w e e n -

CARLOS CABAL (PENICHE) and MARCO PASINI (BERTRAN)

Applicants

and

THE SECRETARY OF THE DEPARTMENT OF JUSTICE (VICTORIA)

First Respondent

LISA HANNAN M

Second Respondent

ATTORNEY-GENERAL (COMMONWEALTH)

Third Respondent

Office of the Registry  
  Melbourne  No M93 of 2000

In the matter of -

An application for Writ of Habeas Corpus against THE SECRETARY OF THE DEPARTMENT OF JUSTICE (VICTORIA) and LISA HANNAN M

Respondents

Ex parte –

CARLOS CABAL (PENICHE) and

MARCO PASINI (BERTRAN)

Prosecutors/Applicants

McHUGH ACJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 SEPTEMBER 2000, AT 10.05 AM

Copyright in the High Court of Australia

_______________

MR J.W.K. BURNSIDE, QC:   If your Honour please, in each matter I appear with my learned friend, MR J.P. MANETTA, for Mr Cabal and Mr Pasini.  (instructed by Phillips Fox)

MS L.K. PLATER:   I appear as agent on behalf of the Victorian Government Solicitor for the Secretary to the Department of Justice.  (instructed by the Victorian Government Solicitor)

MR D.M.J. BENNETT, QC, Solicitor-General for the Commonwealth:
If your Honour pleases, in the special leave application I appear with my learned friend, MR J.S. STELLIOS, for the third respondent.  In the habeas corpus application, I seek leave to appear with my learned friend, MR J.S. STELLIOS, for the Attorney-General of the Commonwealth.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes.  Any objection to leave being granted, Mr Burnside?

MR BURNSIDE:   No.

HIS HONOUR:   Yes, leave is granted.  I have a certificate from the Deputy Registrar that she has been informed by the Deputy Chief Magistrate of the Magistrates Court of Victoria that Ms Lisa Hannan, Magistrate, who is named as the second respondent in the matter, is content to abide by any orders of the Court save as to costs.

Yes.  Now, what course do you propose to take, Mr Burnside?  I have read all the material filed in support of the special leave application and the summons.  I have re-read Lim’s Case, the relevant parts of Kable, Kruger, Kainhoffer, Papozoglou and I have read some American cases on the matter as well.  So, having said that, you can proceed.  I have not heard you in argument.  My tentative view is that your prospects of succeeding, both on the special leave application and on the habeas corpus, are not overpowering, but what you have going for you is the special leave question where you raise the same issue on the habeas.  That being so, it seems to me, subject to hearing the Solicitor, that it would probably be proper to refer the application for the order nisi into the Full Court to be heard concurrently with the special leave application.

I appreciate the conditions under which your clients are held.  However, I do not think that, overall, you have sufficient prospects of succeeding that would make it proper to displace some cases already listed for hearing in a special leave application but, nevertheless, I propose, subject to anything the Solicitor may have to say, to order the matter be expedited.  It could be squeezed in, in Melbourne on 28 November - that is the earliest date – or later on 15 December.  The whole Court will be in Melbourne on 28 November.  It will be hearing a number of special leave applications on that day and subject to anything the Solicitor might say, I can make an order that the matter should be listed in that list.

Now, having said that, is there anything further that you want to put to me at this stage?

MR BURNSIDE:   Unless you are open to horse trading on dates, I do not think I can usefully say anything, your Honour. 

HIS HONOUR:   Yes.

MR BURNSIDE:   There is something I should add though and that is that the ‑ ‑ ‑

HIS HONOUR:   I have been a little concerned about the fact that -Justice French has given his judgment.  I have read his judgment.  I assume, having regard to the massive amount of litigation that has already gone on that there is probably an appeal against that judgment.  Is that - - -

MR BURNSIDE:   It begin on 27 November in Melbourne.

HIS HONOUR:   Right.  I interrupted you.  You were going to say something - - -

MR BURNSIDE:   There is a mechanical matter and that is that the Secretary of the Department of Justice in Victoria is anxious that no member of the public should be allowed to read Mr Cabal’s affidavit of 9 June which, as you remember, contains details of the various other prisoners in Sirius East.

HIS HONOUR:   Well, I would not make a suppression order of the whole affidavit but if you can formulate - or Ms Plater can formulate - a suitable order, I would restrict certain parts of that.  But I will deal with that at a later stage.

MR BURNSIDE:   Yes.  I mention it only because we gave an undertaking that we would seek such an order from the Court or support such order.

HIS HONOUR:   Yes.  The other matter that you might give consideration to is that the evidence filed indicates the situation throughout Australia at the present time in relation to prisons.  It may be that it is relevant, indeed necessary, to show what state of segregation of remand and other prisoners was at the time of the passing of the Extradition Act in 1988.

MR BURNSIDE:   The Solicitor-General and I have discussed the need for material of that sort generally and we think it can be dealt with by an agreed statement of fact.

HIS HONOUR:   Yes.

MR BURNSIDE:   I will not disturb the surface of the lake.

HIS HONOUR:   Mr Solicitor, you have heard what I have had to say?

MR BENNETT:   Yes.  Your Honour, in relation to the special leave application, we do not oppose expedition, without, of course, conceding the arguability of the point.  In relation to the habeas corpus matter, we accept that there is jurisdiction.  We accept that if your Honour were to grant an order nisi, it would be appropriate for it to go to - - -

HIS HONOUR:   I would not grant an order nisi but I would refer the matter into the Full Court to be considered by the Bench.

MR BENNETT:   Your Honour, in relation to evidence, if I can deal with the minor matters before the major matter, the only matter that concerns me is the constitutional fact as to the existence of remand centres in 1900 which may be relevant to the extent of the suggestion that there is some constitutional implication.  But that, again, can be dealt with either by agreed facts or perhaps by works rather than by evidence strictly so called.  There seems to be a constitutional fact.

HIS HONOUR:   The point in the special leave application, that is about punitive exercise of power, does not seem to me to have been taken in those terms in the lower courts.  Am I right in - - -

MR BENNETT:   That is my understanding, your Honour.

HIS HONOUR:   The argument is put on a different basis.  There was argument that it was an exercise – well, it was conceded it was administrative power but it did not appear to me from the reading of the judgments that this point was actually put.

MR BENNETT:   That is my impression.  I was not there, of course.

HIS HONOUR:   No.

MR BENNETT:   But, your Honour, can I just say this about the habeas corpus because this is the main matter which we wish to put.  Your Honour, I have prepared some brief submissions which I have given to my learned friends.

HIS HONOUR:   Yes.  Well, I appreciate the force of those arguments and subject to hearing anything that Mr Burnside had to say, they may well have caused me to hesitate before referring the matter, if the matter stood alone, but it does not stand alone.  The point is sought to be raised in the special leave application.  That being so, Mr Solicitor, I do not think it is proper for me to hear a developed argument in relation to the matter.  Ordinarily, I think an application for an order nisi for a writ of habeas corpus or, for that matter, any prerogative writ should be granted in respect of a matter falling within the jurisdiction of the Court if there is a reasonably arguable question of law or fact in the proceeding and which, if found in favour of the applicant, would be likely to get the applicant the relief sought.    I think ordinarily you should grant an order nisi to enable the question in issue to be the subject of full argument on the return of the order nisi.

I appreciate what you say about this and it really seems to me to come down to this, that it could not reasonably be supposed to be an exercise of the power to detain for the purpose of the applicant meeting the charge to mix him in with other prisoners.

MR BENNETT:   Your Honour, I do not seek to argue today that the special leave question about the construction of the Extradition Act is unarguable.  That is a matter which obviously will be debated on the special leave application.  But the constitutional issue raised in the habeas corpus application is a different one.  It is that if the Extradition Act is construed against my learned friend and permits what has occurred to occur, it is contrary to some implication in Chapter III.

HIS HONOUR:   Yes.  Well, if you look at cases like Aston v Irvine, look at the United States Federal Court in Re Curtis Howard which I think is in 996 F 2d, it is plain enough that ordinarily the section 19 functions do not involve the exercise of judicial power but, that said, the exercise of the powers might nevertheless constitute an exercise of judicial power.  A law which authorises the detention of a person is ordinarily regarded as punitive in character and therefore is generally regarded as constituting an exercise of judicial power.  There is a long tradition of the Executive Government detaining persons for the purpose of extradition.  So that it can be argued that it is an incident of the executive power as you no doubt would argue, but what is said is that it goes beyond what can be reasonably seen as fulfilling the non-punitive object of the detention.

MR BENNETT:   Your Honour, that is so, but that can only be put on one of the two bases I have referred to in paragraph d and e and, for the reasons given there, neither, we would submit, is seriously arguable, and that is the test.

HIS HONOUR:   I understand that but supposing the order of the Magistrate committed the applicants to a place where they would be subjected to cruel and unusual punishment within the meaning of the US cases.  Now, surely, you would be hard pressed to say that that did not involve an exercise of the judicial power.

MR BENNETT:   It may, your Honour, and in paragraph d we have referred to that and said that if there is such a rule or a standard which would apply in extreme cases, this case is nowhere near it.  One does not need to determine if there is to answer this case.

HIS HONOUR:   I know but the things that are put against you are, first of all, they are required to wear a prison uniform; they are required to take prison food; they cannot get their own food; they are locked up from 7.30 pm till 8.30 am; their telephone calls are monitored and that they are limited; they are stripped-searched after every visit; they are treated as part of the general prison population.  On the uncontested evidence, Victoria is the only State in the Commonwealth which does not segregate remand prisoners from serving prisoners.  Uncontested evidence also suggests that there is sound policy reasons concerned with the administration of prisons which would require segregating remand prisoners from serving prisoners because the needs of the remand prisoners are quite different from those serving sentences.

The evidence would seem to establish - or it is arguable that it establishes that prisoners are held in an atmosphere where violence is commonplace, where one of them has been threatened. 

Mr Solicitor, if I were really forced to the point, well, I might be prepared to go along with you if it was not for the special leave application, but I think the special leave application makes it unnecessary for me to form any real view about the matter.

MR BENNETT:   If your Honour pleases, those are the submissions.  The only other matter is this, that if the point is ultimately decided in my learned friend’s favour, the appropriate course would be to remit it at that stage for evidence for this reason, that at this stage one does not know what test the Court would ultimately apply or what basis my learned friend would succeed on and one does not know, for example, even as between d and e, which is the approach one would take.  We would submit for that reason it is appropriate, if the Court were in my friend’s favour, for it to be remitted to the - - -

HIS HONOUR:   But why would 1900 be the relevant - - -

MR BENNETT:   That is a different question, your Honour.  That is the only matter that is relevant to the constitutional question.

HIS HONOUR:   Why do you say that?

MR BENNETT:   Because in so far as my learned friend relies on the second possible point and says that there is a constitutional implication that one must be housed in separate accommodation or separate facilities from serving convicted prisoners - - -

HIS HONOUR:   Well, I am not sure that is the way he puts his case.  His case really is that this detention goes beyond what is reasonably capable of being seen as necessary to achieve the non-punitive object of detention for return to Mexico to face the charges brought against the applicants by the Mexican Government.

MR BENNETT:   Yes.  Well, your Honour, if it is put on that basis - - -

HIS HONOUR:   That is the way it was put in the special leave application in the summary of argument.  That is the way I understood it.  That being so, it may be that you just judge whether the order is punitive at the time it is made in the circumstances then existing.  Another possibility is that you look at it in terms of the circumstances when the Act was passed in 1988.  My preferred view at the moment, I think, would be you look at it at the time when the order is made to determine whether it is punitive or not.

MR BENNETT:   Yes.  Except, your Honour, on the constitutional issue it might be relevant to know whether remand prisoners were treated differently in 1900, as a general matter.

HIS HONOUR:   It may be of some relevance. Of course, if the argument for the applicants is successful, then it has some quite serious consequences generally for the Commonwealth because it must mean that anybody on remand for a federal offence in Victoria is also being committed in breach of Chapter III of the Constitution. So, I think you have to look outside the terms of extradition. After all, the only difference between the person on remand for extradition and the person on remand under an ordinary federal offence is that, in the case of the former, the moving party is a foreign government; in the case of a federal offence, it can be any citizen who exercises his or her right to lay a prosecution or an information under the Crimes Act.  It obviously has important consequences, it seems to me, for federal offences as well as extradition offences, Mr Solicitor.

MR BENNETT:   Yes.  If your Honour takes a view that evidentiary issues should be before the Full Court, it may be necessary to have directions as to evidence in the habeas corpus application.  We had rather assumed it would come back afterwards if that issue - - -

HIS HONOUR:   All that is going before the Full Court is an application for the order nisi.  I would not envisage the Full Court, on the special leave application, making an order absolute.  It may refuse there and then and might say, “This case has no prospects of success”, in which case the application would be refused.

MR BENNETT:   Yes.  In other words, if there were to be evidence, it would be between the order nisi and order absolute?

HIS HONOUR:   I would think so.  Mr Solicitor, I am not going to grant an order nisi.  All I am going to do and all I am asked to do – correct me if I am wrong, Mr Burnside ‑ but all I am asked to do, as I read your summons, is to refer the matter into the Full Court?

MR BURNSIDE:   That is true, and along with the special leave application, because the questions interlock.

HIS HONOUR:   Yes.

MR BURNSIDE:   Your Honour is right about the possible implications of success for the effect on federal prisoners generally, remand prisoners at least, and that, in our submissions, is a reason why perhaps it should be brought on earlier than 28 November if there is a date available.

HIS HONOUR:   There is no date available for it.  The lists are full until that date and I do not think that you have sufficient prospects of succeeding to make it proper to remove a case already fixed for hearing before 28 November.  That is not to say you will not succeed, of course, but it would mean displacing other matters that are already in for hearing and, in all the circumstances, I do not think it is proper.

MR BURNSIDE:   Can I say one thing on that alone?  The facts demonstrate that these two men have been in prison for just on two years now in conditions apparently appropriate to the worst criminals, the most serious offenders in the State of Victoria.  They have not been convicted of any offence anywhere.  They have done more time, so far – they had done twice the time, so far, that Alan Bond did on his painting charge.  It is an extraordinary state of affairs, if one assumes for a moment that they are not guilty of the matters for which they are to be extradicted.

HIS HONOUR:   I understand that.  The matter before the Magistrate went for 69 days and then you had eight days before Justice French and the allegations have been made by your clients that they are being extradicted for political purposes and that there are relevant extraditional objections.  But, that said, the fact that they are where they are now is because of threats of extortion and no doubt it is more likely that extortion threats will be made against them if they are in the general prison population than if they were in a remand centre, but violence against remand prisoners is not unknown, at least in this State, Mr Burnside.  Even if they were in some segregated facility, they might have to be put in some special unit for their own protection, in any event.  I do not say they would.

There are a lot of people serving sentences who have special leave applications.  There are other litigants in civil matters who have the expectation that their matters will be heard on the date that has now been fixed and I do not propose to remove those matters to give this case - - -

MR BURNSIDE:   I can only say that where the liberty of the subject is in issue, that generally takes precedence over the civil cases and as between these and the criminal appeals, of course, criminal appellants have already been tried.

HIS HONOUR:   I appreciate the force of that submission and that was why I emphasised that your prospects of success, on the special leave application and on the habeas, do not seem to me to be so strong that I should take that step.  When we hear a full argument from you, the matter may turn out quite differently but at the moment, if I had to make a guess, I would suspect your applications would fail.  It is only a guess after several hours reading of the material and re-reading of cases with which I am quite familiar.

MR BURNSIDE:   I have said all I can usefully can.

HIS HONOUR:   Yes, thank you.  Ms Plater, you wish to have parts of the order - - -

MS PLATER:   Your Honour, my instructions are to seek orders in relation to the affidavit of Carlos Cabal Peniche, as Mr Burnside indicated, which is dated 9 June 2000 and which is annexed, as I understand it, to an affidavit in these proceedings, in the order nisi application proceedings, dated 12 September 2000, seek an order that, “any application for leave to inspect the 9 June 2000 affidavit be served on the Secretary of the Department of Justice before it is dealt with.”  So, rather than seeking a general non‑publication order at this point, just that my client is served with ‑ ‑ ‑

HIS HONOUR:   Can I just have that again?

MS PLATER:    “Any application for leave to inspect the affidavit of Carlos Peniche sworn on 9 June 2000 be served on the Victorian Secretary, Department of Justice, before it is dealt with”.

HIS HONOUR:   The problem with that is that it would require in some way an applicant for leave to inspect to ‑ what, write to the Victorian Department?  The difficulty is that there is no right to inspect affidavits unless they have been read in Court.  For the purpose of these proceedings I have treated the affidavits as being read in Court.  I think that you will have to seek an order in respect of some particular paragraphs of the affidavit and I would be prepared to make an order that those paragraphs not be published.  If you could identify them for me, Ms Plater.

MS PLATER:   It is a matter which I will have to seek instructions on and perhaps write to the parties and to the Court.

HIS HONOUR:   Well, the bird might have flown by then.

MS PLATER:   Indeed.

HIS HONOUR:   What were the orders made in the Federal Court?

MS PLATER:   I understood the orders which I just read out to the Court were made by his Honour Justice Gray in the Federal Court.

HIS HONOUR:   Yes.  Well, here, we do not allow people to inspect the files.  The affidavit, if it has been read in Court, is part of the public record and can be read by anybody, so in those circumstances I think you really want an order that perhaps paragraphs 16 to 18 and perhaps some other paragraphs need an order that they not be published.

MR BURNSIDE:   Can I help on that?

HIS HONOUR:   Yes.

MR BURNSIDE:   As I understand it, your Honour, it was paragraph 16, specifically, that the Department was concerned about in the Federal Court.  Can I also make this observation:  although we are talking about the affidavit of Mr Cabal, paragraph 16, it is an exhibit in this proceeding.  It was filed in the Federal Court.  It is exhibited to an affidavit in this Court.  So, it is really a paragraph of an exhibit which is the subject of the proposed order.

HIS HONOUR:   Yes.  It is an exhibit to the affidavit of - - -

MS PLATER:   Of Carlos Peniche sworn - - -

HIS HONOUR:   No, no, I appreciate that but it is an exhibit to whose – Mr ‑ ‑ ‑

MR BURNSIDE:   It is an exhibit to Mr Cabal’s affidavit, sworn 12 September in the habeas corpus.  It is exhibited in paragraph 3.  It does all the work.  The exhibit does all the work but it is an exhibit.

HIS HONOUR:   Yes.  Well now, is there anything further – any other parts of that affidavit apart from paragraph 16?

MS PLATER:   I am unable to assist the Court on the basis of my current instructions, I apologise, your Honour.

HIS HONOUR:   Yes.  Well, I will order that the contents of paragraph 16 of the affidavit of Carlos Cabal Peniche, sworn on 9 June 2000 and which is an exhibit to the affidavit of Carlos Cabal Peniche, sworn on 12 September 2000, not be published without further order of a Justice of this Court.

MS PLATER:   If it please the Court.

HIS HONOUR:   In respect of the summons which is before me, I order that the special leave application pending in the Court be listed for hearing in the sittings in Melbourne on 28 November 2000.  I also order that so much of the summons as seeks the hearing of an application for an order nisi in respect of a writ of habeas corpus be heard by the Full Court which hears the special leave application, and that it be heard either concurrently with or immediately before or after the hearing of the special leave application.

I certify for the attendance of counsel.  Costs of the matter will be costs in the special leave application and in the summons for the order nisi. 

Is there any further order that is required?

MR BENNETT:    No, your Honour.

MR BURNSIDE:   No, your Honour.

HIS HONOUR:   Very well.  Adjourn the Court.

AT 10.40 AM THE MATTER WAS CONCLUDED