Cabal v United Mexican States

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HIGH COURT OF AUSTRALIA

KIRBY J

CARLOS CABAL (PENICHE) & ANOR   APPLICANTS

AND

UNITED MEXICAN STATES & ORS  RESPONDENTS

Cabal v United Mexican States
[2001] HCA 42
29 June 2001
M39/2001

ORDER

1.   Expedite the hearing of the applications for special leave before the Full Court of this Court.

2.   Admit to bail the second applicant upon the conditions ordered.

3.Refuse the application for bail of the first applicant.

4.Reserve costs.

Representation:

G Griffith QC with D S Mortimer for the first applicant (instructed by Fernandez Canda Gerkens)

D Grace QC for the second applicant (instructed by Fernandez Canda Gerkens) at the hearing on 28 June 2001

D Grace QC and D S Mortimer for the second applicant (instructed by Fernandez Canda Gerkens) at the hearing on 29 June 2001

M M Gordon for the first respondent (instructed by Director of Public Prosecutions (Commonwealth))

No appearance for the second respondent

H C Burmester QC for the third respondent (instructed by Australian Government Solicitor)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

  1. KIRBY J.   These are applications by Mr Carlos Cabal (Peniche) ("Mr Cabal") and Mr Marco Pasini (Bertran) ("Mr Pasini") ("the applicants") for bail pending a hearing, before a Full Court of this Court, of their applications for special leave to appeal against a judgment entered against them by the Full Court of the Federal Court of Australia. 

    The course of the proceedings

  2. Both Mr Cabal and Mr Pasini (who is Mr Cabal's brother‑in‑law) are the subjects of determinations by a magistrate that they are eligible for surrender under the Extradition Act 1988 (Cth) ("the Act") to the United Mexican States ("Mexico"). The determinations were made in relation to a number of serious financial offences alleged to have occurred in Mexico involving the applicants and very large sums of money. On 17 December 1999, pursuant to s 19 of the Act, the magistrate found that the applicants were eligible for extradition. Since that time the applicants have been contesting that determination. They have initiated other litigation addressed to claims that they were entitled to protection visas as refugees under the Migration Act 1958 (Cth), to improve their conditions of detention, to seek the issue of writs of habeas corpus, to secure bail and otherwise.

  3. The determinations by the magistrate were challenged in the Federal Court of Australia pursuant to s 21 of the Act. In that Court, French J, on 29 August 2000, dismissed the applicants' applications for judicial review[1].  Appeals against French J's orders were brought to the Full Court of the Federal Court.  In the appeals, that Court comprised Hill, Weinberg and Dowsett JJ.  On 18 April 2001, it unanimously decided that the appeals should be rejected, although minor errors in the primary judge's orders were corrected and for that purpose alone the appeals were formally allowed[2].

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Details
Case
[2001] HCA 42
Decision Date

CaseChat Overview and Summary

The applicants, Cabal and Pasini, sought special leave to appeal to the High Court of Australia against extradition determinations made under the *Extradition Act 1988* (Cth). Their applications for bail, made while in custody for over 31 months, raised questions concerning the High Court's implied or inherent jurisdiction and power to grant bail, and whether such powers were ousted by the Act's specific bail provisions.

The central legal issues before the Court were whether the High Court possessed an implied or inherent jurisdiction and power to grant bail to applicants for special leave to appeal, particularly when their constitutional challenges to the *Extradition Act 1988* had been referred for hearing to the Full Court. The Court was required to determine if exceptional circumstances were established to enliven this jurisdiction and power, and if so, whether the discretion to grant bail should be exercised, considering the relevance of earlier bail applications in the Federal Court, the prolonged detention in severe custodial conditions, and the suitability of electronic tagging and home detention as bail conditions.

Kirby J reasoned that while the purpose of requiring applicants to demonstrate "special" or "exceptional" circumstances for bail is to justify departure from the normal rule of detention, the referral of the applications for special leave to the Full Court constituted a significant change in circumstances, indicating the arguable nature of the applicants' submissions and the constitutional importance of the matter. His Honour found that exceptional circumstances were demonstrated, not only by the referral to the Full Court but also by the extreme and prolonged custodial conditions to which the applicants were subjected, which were inconsistent with their status as unconvicted persons and fell short of the standards contemplated by section 53 of the Act.

The Court ordered that the hearing of the applications for special leave be expedited before the Full Court. Bail was admitted for the second applicant, Pasini, upon specified conditions, while the application for bail of the first applicant, Cabal, was refused. Costs were reserved.

Orders

Orders of the court

1. Expedite the hearing of the applications for special leave before the Full Court of this Court.

2. Admit to bail the second applicant upon the conditions ordered.

3. Refuse the application for bail of the first applicant.

4. Reserve costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIRBY J
I acknowledge the force of these submissions for Mexico. I also accept that there would be certain risks of absconding if bail were provided, especially in the case of Mr Cabal. This would be so whatever terms and conditions the Court fashioned. Absolute assurance can only be achieved by refusing bail to every applicant.Conclusion: exceptional circumstances are demonstrated Nevertheless, in my view, "exceptional circumstances" have been established to warrant the provision of bail to each of the applicants. Critical to this conclusion is the action taken on 22 June 2001 to refer the proceedings into the Full Court. Also highly relevant are the extreme conditions in which the applicants are being detained and the evidence of the understandable deterioration in the psychological conditions of each of them in consequence of their situation and their prolonged isolation from their families. This is specially true in the case of Mr Pasini, who is described as "severely depressed" and "crushed by his current circumstances". However, I also find that it is true in the case of Mr Cabal. The particular problem for the custody of the applicants arises from the fact that, in the State of Victoria, there is no separate facility for remand prisoners in which the applicants could otherwise be detained pending the final outcome of the extradition proceedings. They have never been convicted of an offence. Still less of an offence against the law of Australia. Even less of a grave crime such as would normally be a precondition to their admission to the Sirius East Unit in which they are held in the Port Phillip Prison. Prior to these proceedings, each of the applicants was entitled to be treated as a person of good character. Neither is a danger to the Australian community. Neither has manifested any propensity to violence. The applicants are incarcerated in a most severe custodial regime, involving unremittingly severe discipline ordinarily reserved for the most dangerous and recalcitrant Australian prisoners. They are subjected to strip searches. During transportation they are confined by short‑chain shackles. They have no more than restricted access to recreational, work, library, educational and religious activities. In total, this regime can only be regarded as "exceptional". Indeed, it is "exceptional" by the standard of the Act. Section 53 of the Act contemplates that prisoners such as the applicants, awaiting extradition, will be subjected to conditions of imprisonment equivalent to those undertaken in Australia by prisoners awaiting trial. It is said that this is only "so far as they are capable of application" and that in Victoria this provision of the Act is not capable of other application because of want of a remand facility. This was a peculiarity of the applicants' fate because they were detained in Victoria. In default of proof to the contrary by the respondents, I would be prepared to accept that this is so. I am not concerned about wider questions related to the suggested breach involved in these circumstances of Australia's obligations under international human rights law[15]. However, I am concerned with the consequences of such conditions upon the applicants. Such conditions might be endured with fortitude for a time. For a time, the courts might conclude that there was nothing special or exceptional in them. However, to subject the applicants for so many months to such conditions is undoubtedly exceptional. It is so by ordinary Australian custodial standards and by the standards which the Parliament clearly contemplated when it enacted the ameliorating instruction of s 53 of the Act.[15]International Covenant on Civil and Political Rights, Art 10(2)(a) which provides: "Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons"; done at New York on 19 December 1966; (1980) Australia Treaty Series No 23 (entered into force 13 November 1980); (1976) 999 United Nations – Treaty Series 171; (1967) 6 ILM 368.

Ratio Decidendi

Legal Principle Established

Established by: KIRBY J

This being so, it must be accepted that where bail is granted, there will inevitably be some risk that the person concerned will abscond and thereby interrupt or frustrate the extradition procedures. The purpose of obliging the applicant for bail to demonstrate "special" or "exceptional" circumstances is to focus the attention of the court on the reasons why detention in custody pending surrender is the normal rule. And why something unusual and extraordinary is necessary to depart from that rule. Three considerations which are not determinative I have had the advantage of considering the opinions of the judges of the Federal Court, who, at earlier stages in these proceedings, have had to determine applications for bail made under the Act to that Court. I am not bound by any of those determinations. They were made to a different court, in earlier cases, upon different evidence, and based upon a different legal foundation. It would be quite wrong to limit the exercise of the jurisdiction and powers of this Court to those of other courts. I am obliged to decide the applications for myself. Necessarily, different judicial officers in different courts may react even to the same evidence and argument in different ways. My duty is to express my own opinion on the material before me. Nor, as a matter of law, do I think it necessary for the applicants to show a change of circumstances since the matter was before Gaudron J in May 2001, in order to be entitled to invoke the jurisdiction and powers of this Court as exercised by me. However, it is unnecessary to decide that point finally because there has been a relevant change of circumstances, namely that on 22 June 2001 the applications for special leave were referred by three Justices of the Court to a Full Court for argument as on the return of an appeal. I would accept that this fact falls short of a grant of special leave. Furthermore, even such a grant would be no guarantee of the existence of special, still less, exceptional, circumstances warranting the provision of bail. So much is made clear by past decisions of this Court[13].[13]eg Zoeller v Federal Republic of Germany (1989) 64 ALJR 137 at 138; 90 ALR 161 at 164. I could not say that, in these cases, an eventual grant of special leave is irresistible, or that the applicants are bound to succeed in their applications or in the appeals pursuant to special leave were such leave granted. Nevertheless, it is inherent in the action of referring the matters to a Full Court to be argued as on appeal, that the applicants' submissions were regarded as arguable and warranting a decision by all available Justices. Clearly, the removal of any doubt about the validity of the Act is a matter of high constitutional and practical importance. To this extent, the order made on 22 June 2001 involved, as Mexico properly conceded, an improvement in the position of the applicants from the position which they faced when they were before Gaudron J. The exceptional circumstances propounded by the applicants