Cabal v United Mexican States
FEDERAL COURT OF AUSTRALIA
Cabal v United Mexican States [2001] FCA 427
EXTRADITION – review of determination of eligibility for surrender by magistrate – nature of review process – nature of function conferred on magistrate and court – constitutional validity – Extradition Act 1988 (Cth) – request for extradition – supporting documents – no inquiry into foreign law – criteria for characterisation of documents issued by requesting country as “warrants” – statement of conduct – sufficiency – more than one offence in a statement – extradition objections – purpose of prosecution or punishment for political opinions – assessment on premise that offences committed – substantial grounds for believing – prejudice on account of political opinions – exclusion of material by magistrate – judicial review of magistrate’s decision – whether subsumed in s 21 review.
CONSTITUTIONAL LAW – separation of powers – review by court of magistrate’s administrative decision – whether exercise of judicial powers – nature of review.
WORDS AND PHRASES – “substantial grounds for believing”, “political opinions”.
Extradition Act 1988 (Cth) ss 3, 7(b), (c), 19(2)(d), 19(3)(a), 19(3)(c)(ii), 19(5), 21(6)(d), 22
Judiciary Act 1903 (Cth) ss 39B(1A)
Evidence Act 1995 (Cth) ss 135, 136Cabal v United Mexican States (No 3) [2000] FCA 1204 at pars 4, 8, 32, 42, 85-87, 104, 144-145, 153, 216, 218, 219, 220, 226, 235, 237, 238, 239, 240, 241, 243, 244 and 245
Bertran v Vanstone (2000) 173 ALR 63 at 76-88 referred to
Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 538 referred to
Republic of South Africa v Dutton (1997) 77 FCR 128 at 136 referred to
The Queen v Quinn Ex parte Consolidated Foods Corporation (1977) 138 CLR 1 at 6, 8 and 18 followed
McDade v The United Kingdom [1999] FCA 1868 at par 22 referred to
Zoellerv Federal Republic of Germany (1989) 23 FCR 282 at 290, 299, 300 and 303 referred toThe Queen v Davison (1954) 90 CLR 353 at 366 followed
Nicholas v The Queen (1998) 193 CLR 173 at 207 followed
Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 360 followed
The Queen v Trade Practices Tribunal, Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 373, 378 and 390 followed
Narain v Parnell (1986) 9 FCR 479 referred to
Schlieske v Federal Republic of Germany (No 2) (1987) 76 ALR 417 at 422 referred to
Todhunter v United States of America (1995) 57 FCR 70 at 80 referred to
Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 483, 485-486, 488-491, 505, and 521-522 followed
Papazoglou v Republic of the Philippines (1997) 74 FCR 108 at 129 and 139 followed
Federal Republic of Germany v Parker (1988) 84 FCR 323 at 341-2 referred to
National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209 at 226 referred to
Peniche v Vanstone (2000) 101 FCR 112 referred to
Rahardja v Republic of Indonesia [2000] FCA 1297 at pars 75-77 referred to
De Bruyn v Republic of South Africa (1999) 96 FCR 290 at 292-293 referred to
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-391 referred to
Foster v Minister for Customs and Justice (2000) 200 CLR 442 at 464-467 referred to
Cabal v United Mexican States (No 2) (2000) 172 ALR 743 referred to
Fernandez v Government of Singapore [1971] 1 WLR 987 referred to
Hempel v Attorney-General (Cth) (1987) 29 A Crim R 133 at 663-664 referred to
Todhunter v Attorney-General (Cth) (1994) 52 FCR 228 referred to
Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at par 75 referred to
Schtraks v Government of Israel [1964] AC 556 at 589 referred to
Ujiie v Republic of Singapore [1995] FCA 855 referred to
Stanton v DPP [1993] FCA 20 referred to
Bou-Simon v Attorney-General (Cth) (2000) 96 FCR 325 referred to
R v Horseferry Road Magistrates’ Court; Ex parte Bennett [1994] 1 AC 42 referred to
R v Martin [1998] AC 917 referred to
Dutton v Republic of South Africa (1999) 84 FCR 291 at 303 referred toBennett v Government of United Kingdom [2000] FCA 916 at pars 107-198 referred to
Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 412-413 referred to
CARLOS CABAL PENICHE AND MARCO PASINI BERTRAN v UNITED MEXICAN STATES, LISA M HANNAN M and ATTORNEY-GENERAL (COMMONWEALTH) (Intervening)
V 700 of 2000
HILL, WEINBERG AND DOWSETT JJ
18 APRIL 2001
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 700 OF 2000
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
CARLOS CABAL PENICHE
FIRST APPELLANTMARCO PASINI BERTRAN
SECOND APPELLANTAND:
UNITED MEXICAN STATES
FIRST RESPONDENTLISA HANNAN M
SECOND RESPONDENTATTORNEY-GENERAL (COMMONWEALTH)
(Intervening)
THIRD RESPONDENTJUDGES:
HILL, WEINBERG AND DOWSETT JJ
DATE OF ORDER:
18 APRIL 2001
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the first respondent’s costs of and incidental to the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
TABLE OF CONTENTS
Par no
The Background Facts 2-36
The Submissions Before The Learned Primary Judge 37
Summary Of The Offences Alleged Against Mr Cabal – The
First Extradition Request 38-39
Summary Of The Offences Alleged Against Mr Cabal – The
Second Extradition Request 40-41
Summary Of The Offences Alleged Against Mr Pasini 42-43
The Legislation 44-53The Judgment Appealed From 54-72
The judgment appealed from – The Constitutional question 58-60
The judgment appealed from – Did the warrants set out
the conduct constituting the offence? 61-62
The judgment appealed from – Were the warrants tendered
“warrants” within the meaning of the Act? 63-64
The judgment appealed from – Did the appellants make out
an extradition objection? 65-70The motion to adduce fresh evidence 71-72
The Constitutional Argument 73-104
The Warrants 105-114
Conduct Constituting The Offences 115-119
The Extradition Objections 120-130
The Preliminary Ruling 131-153
“Substantial grounds for believing” - s 19(2)(d) 133-138
The admissibility of evidence tendered in relation
to extradition objections 139-146
The material before the magistrate 147-153
The Appellants’ Case 154
Alleged Errors Of Law 155-195
Courts ill-equipped to evaluate material 155-166
The “Mexican context” 167-168
The “assumption of guilt” 169-179
Exclusion of the “country information” 180-195
Alleged Errors Of Fact 196-287
The weight accorded to the evidence of the experts 196-226
The opinions held by Mr Cabal and their significance to
the Mexican Government 227-247
The speed with which the warrants were issued 248-258
The issue of quebranto 259-265
Admissions made by Mexican Government officials 266-271
The PRI advertisement 272-281
Pressure by Mexican Government officials on witnesses 282-287
Evidence Relied Upon By The First Respondent To Rebut
The Extradition Objection Under s 7(C) of the Act 288-290
The Notice Of Motion 291-305Conclusion 306
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V700 OF 2000
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
CARLOS CABAL PENICHE
FIRST APPELLANTMARCO PASINI BERTRAN
SECOND APPELLANTAND:
UNITED MEXICAN STATES
FIRST RESPONDENTLISA HANNAN M
SECOND RESPONDENTATTORNEY-GENERAL (COMMONWEALTH)
(Intervening)
THIRD RESPONDENT
JUDGES:
HILL, WEINBERG AND DOWSETT JJ
DATE:
18 APRIL 2001
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
THE COURT:
The appellants, Mr Carlos Cabal Peniche (Mr Cabal) and Mr Marco Pasini Bertran (Mr Pasini), appeal against the decision of a Judge of this Court (French J) dismissing their application for review of a decision of the second respondent, a magistrate and affirming her decision that each of them was eligible for surrender to the first respondent, the United Mexican States (“Mexico”) in relation to a number of extradition offences. The judgment of his Honour which is the subject of this appeal is Cabal v United Mexican States (No 3) [2000] FCA 1204.
THE BACKGROUND FACTS
Apart from a minor and insignificant transcription error which will shortly be noted, there was no challenge to the statement of background facts in the judgment of French J, much of which was derived from material emanating from Mr Cabal. That statement is contained in paragraphs 6 to 83 inclusive of his Honour’s Reasons for Judgment. In the interests of brevity we do not repeat it in its entirety. We propose, rather, to attempt a summary of that statement in order that the issues debated before us can be more readily understood without regard back to the judgment under appeal. To the extent that the summary here set out is necessarily incomplete, the full text of the statement, which we accept without reservation, can be taken to have been incorporated by reference into these reasons.
Mr Cabal is a citizen of Mexico and describes himself as an entrepreneur.
Mr Pasini is likewise a citizen of Mexico and is Mr Cabal’s brother-in-law. They were both arrested in Melbourne by the Australian Federal Police following requests for their extradition received from Mexico.
After a difficult start Mr Cabal was, at various times, involved in real estate subdivision, the export of shrimp to the United States of America, banana production and export. He later diversified into pineapples and papayas. These activities were largely in the south-eastern states of Mexico, (especially Tabasco, Chiapas and Campeche) a region in respect of which he claimed to have developed a particular interest. That region had been of little interest as an area of investment and development in the traditional money centres in the centre and in the north.
In 1991 Mr Cabal met President Salinas, then President of Mexico who, in 1990 announced his intention to privatise Mexico’s banks. Mr Cabal organised a group to buy a bank that could help finance development in the south-east of Mexico. A tender on behalf of the group to purchase a bank, then known as Banco BCH and subsequently referred to as Banco Union was ultimately successful. In achieving success, Mr Cabal alienated a Mr Creel, who had been a competitor in the tender process and who had the support of a Mr Aspe and a Mr Ortiz, officials charged with carrying out the President’s privatisation program. However, his Honour rejected a suggestion that Mr Cabal had engendered some long term resentment on the part of government because of his tactics in relation to the bid. Mr Cabal ultimately became president of Banco Union.
Subsequently when the United States fresh food conglomerate, Del Monte Fresh, became available for purchase Mr Cabal began work on assembling a consortium which, in November 1992, acquired that conglomerate for half a billion dollars.
Following what it seems was a routine audit of Banco Union a letter was sent to the Director-General of that bank, Mr Collantes Ortega on 27 July 1993 advising of irregularities noted during that audit. According to Mr Cabal the letter was not raised with him at that time by Mr Collantes.
Around June or July 1993 a Mr Ramundo Florez, Chairman of the Board of Banco Cremi called Mr Cabal suggesting that he form a group of shareholders in Banco Union to purchase the Cremi Finance Group including Banco Cremi. Approximately $550 million was needed for the transaction. Approval of the President of Mexico and the Finance Minister was required. That approval was granted and the purchase took place in November 1993. Mr Cabal then set about obtaining the necessary approvals to a merger and float of the two banks.
A presidential election was due in that year. As the learned primary judge noted, for some seventy years Mexico had been governed by the one party, the Institutional Revolutionary Party (PRI). It was only in 1997 that opposition parties had been represented at all in the Mexican Congress. There were three candidates for President to succeed President Salinas, of whom one was Mr Donaldo Colosio. According to Mr Cabal he arranged for a contribution to Mr Colosio’s campaign of $US15 million. The donation was made on or about 26 July 1993 through the medium of a trust account which the then Managing Director of Banco Union was instructed to arrange. The Managing Director died around December 1993.
In or around November 1993 a proposal was put to a meeting of a committee of the bank (referred to as the Board of Administration) for the creation of a management committee to be the administrative and executive organ responsible for the day-to-day operations of the bank and the direction and administration of the Cremi group. That committee was subject to the direction of the Board of Administration of Banco Union. The committee was to function as a high level Credit Approval Committee. Mr Cabal, as a member of the committee had a casting vote.
Mr Colosio was endorsed as the official PRI presidential candidate. Mr Cabal offered, so he said, additional support to the value of $US5 million. However, on 23 March 1994 Mr Colosio was assassinated. A Mr Ernesto Zedillo was nominated by Mr Salinas as his successor. Mr Cabal was less forthcoming in raising an additional donation for Mr Zedillo.
Another letter referring to irregularities was sent by the National Banking Commission to Banco Union on 29 April 1994 marked for the attention of a Mr Bailey as President of the Committee of Direction of the Bank. So far as Mr Cabal could remember Mr Bailey had said nothing to him about the letter.
In May 1994 Mr Cabal was pressed to make the $US5 million contribution that he had intended to give to Mr Colosio’s campaign available for Mr Zedillo’s campaign. The contribution was to be in cash or by way of small deposits because of electoral laws which regulated campaign deposits. Mr Cabal asked an officer of the Bank to work something out. Faced with another demand to make a contribution Mr Cabal gave the maximum amount then permitted by law, being one million pesos (approximately $US300,000). He was asked to give further support but declined to do so, on the stated basis that the Bank was already contributing to the campaign. During the campaign Mr Cabal accompanied Mr Zedillo on a tour to Tabasco. However, his relationship with Mr Zedillo was not close.
A few days later, on 26 July, a meeting took place at the Finance Ministry to discuss irregularities said to have been discovered by the audit. According to Mr Cabal he was told by Mr Ortiz to make all efforts to clear up whether the irregularities had occurred (not as par 42 of the judgment below says mistakenly “where the irregularities had occurred”). He and the General Manager, a Mr Acala, who also attended the meeting were told to maintain absolute secrecy about the administrative intervention by the National Banking Commission as the elections were very close and it was not desirable that it should be known in that environment that a bank was subject to intervention. Mr Bailey was not to be made aware of the intervention. Mr Ortiz asked both Mr Cabal and Mr Acala to sign a document of formal notification of the intervention. At the meeting, Mr Cabal raised the question of authorisation to have the Bank’s shares listed on the Stock Exchange but was told that while the irregularities were under investigation, the Bank’s shares would not be able to be listed. According to Mr Cabal he signed the notification of intervention as it was the only way that ultimately the float would be able to proceed. Mr Ortiz said, according to Mr Cabal, that he and Mr Acala would have every opportunity to clear up any alleged irregularities. He said that he had no difficulty with that as the Finance Ministry was aware of all the Bank’s operations in any event. His Honour found that it was unlikely that Mr Cabal did not appreciate the potential seriousness of the allegations contained in the document to which, by his signature, he had assented.
The document which Mr Cabal signed made it clear that the irregularities drawn to the Bank’s attention related to loans granted for the purchase of shares in Banco Union and the Cremi group. By signing, Mr Cabal, according to the document, “verbally accepted” the existence of irregular operations which implied the “financing, the excessive financing to various people in relation to the acquisition of companies”. Administrative intervention was noted to have been authorised by the National Banking Commission and Mr Cabal was to give assistance to the intervener to evaluate the impact of these transactions on the financial situation of both companies.
The day after signing the irregularities document Mr Cabal obtained a visa from the French Consul General. Subsequently he left Mexico, apparently to negotiate a personal line of credit to enable him to acquire Del Monte Foods, a canning operation and merge it with Del Monte Fresh. The overall price for the acquisition was $US1 billion. At the elections which took place on 21 August 1994 while Mr Cabal was in Europe Mr Zedillo was elected President of Mexico.
What was said on behalf of Mr Cabal to be a formal complaint against him was issued from the Ministry of Finance on 29 August 1994 and delivered to the Federal Public Prosecutor at the Attorney-General’s office on the next day. The prosecutor applied on 31 August to a judge, the Seventh District Judge for the Federal District in Criminal Matters who issued a warrant or order of apprehension on that date relating to Mr Cabal and nine other persons alleging offences against articles 112, 113 and 114 of the Mexican Law of Credit Institutions. The factual recital grounding the issue of the warrant comprised about 142 pages.
Mr Cabal returned to Mexico to meet Dr Aspe, the Minister of Finance. Mr Cabal denied knowledge of the irregularities and claimed Banco Union was operating normally. Dr Aspe made it clear that the authorisation for a float of the shares on the stock exchange would not proceed until the irregularities were cleared up. At a subsequent meeting with another official, Mr Fernadez, Mr Cabal was told that the decisions concerned with his case would be taken at a presidential level for it was an extremely big case for Mexico having regard to the companies that Mr Cabal was managing. Mr Fernadez told Mr Cabal that he should be ready for another appointment to discuss matters. Mr Cabal said that he would have to return to Europe to be with his family and would need adequate notice. He said that he would place fully before Mr Fernadez any information the latter wanted about Banco Union. On the same day Mr Cabal consulted a criminal lawyer.
A second application for a warrant or order of apprehension was made to the Seventh District Judge on 2 September 1994. The recital of facts backing the warrant amounts to some 46 pages. The apprehension of Mr Cabal and a number of other people was required as “subjects with probable responsibility for committing the felonies foreseen and sanctioned by articles 112, fraction V, clause d) and 114 fraction 1 of the Law of Credit Institutions”.
Mr Cabal departed Mexico on 1 or 2 September 1994 for Miami where he spent a few hours and thence travelled to Europe to join his family. He has not been back to Mexico since his departure.
On 31 August 1994 Mr Pasini had also departed Mexico for Monaco where he joined his sister. He claimed that he had been invited to see his sister on holidays and also that he had been offered a job outside Mexico with Del Monte. He did not take up that position. His Honour found the account given by Mr Pasini for leaving Mexico inherently improbable.
On 1 September 1994 the National Banking Commission announced its intervention in the affairs of Banco Union. There was widespread publicity in Mexico surrounding these events and Mr Cabal’s departure. Mr Pasini decided to stay outside Mexico with his sister, leaving Monaco for France.
A third warrant or order of apprehension was issued on 14 September 1994 against Mr Cabal and others “for their probable criminal responsibility in the commission of the crimes contemplated and penalised by article 112, fraction V, 112, fraction B paragraph e) and the same number in its fraction VI of the Law of Credit Institutions”. The complaint was made on 7 September 1994, the application for the issue of the warrant or order of apprehension on 8 September 1994 and the warrant issued on 14 September 1994. On 9 October 1994 a fourth warrant was issued by yet another judge. The complaint for this warrant was made on 30 September 1994 and the issue of the warrant applied for on 4 October 1993. The warrant alleged that Mr Cabal and another had breached article 112, section V, first paragraph and article 112, section V, clauses c), d) and e) of the Credit Institutions Law.
On 5 November 1994 Mr Cabal arranged for the publication of an open letter in the Mexican press. In it Mr Cabal claimed that he was being attacked without reason; that the actions of the authorities were arbitrary and born from resentment. He claimed that he wished the truth to be known and “for lawfulness to prevail over the powerful personal interests that, feeling affronted, have led to my persecution”. He claimed that he had fled from injustice and asserted that the justice system did not always act with independence. He denied committing any of the “absurd” crimes of which he was accused. The letter, in translation, continued:
“Clearly identified interests, seeking tax concessions, [an expression meaning ‘people who had sold themselves to the government’] have fostered the confusion, and have taken advantage of it in order to try to implicate several of my friends, for purposes of party politics. Others have reached the height of absurdity in trying to link me to drug dealing and money laundering. Some have discovered the right occasion to become, without any real grounds, severe critics.”
The letter spoke of Mr Cabal’s “duty” to provide a chance for small and medium-size entrepreneurs of the South Eastern Region to take part in the intensive development of that region so that it could obtain progress comparable to other regions in the country. He said that by acting independently he had earned the enmity and rancour of the representatives of the most exclusive and conservative sections of the country who considered the South Eastern Region Group to be a collection of incompetent, uneducated provincial men.
Between January 1995 and 24 October 1995 a further three warrants or orders of apprehension were issued by judges against Mr Cabal and others alleging various contraventions of the Credit Institutions Law. An eighth warrant issued on 12 August 1996. The original complaint relating to this warrant was made on 20 May 1996 apparently from within the office of the Federal Public Prosecutor. Three further warrants were issued against Mr Cabal on 25 November and 9 and 10 December 1997. A twelfth warrant was issued on 13 April 1998 and a thirteenth on 15 May 1998. These thirteen warrants supported what is referred to as the first extradition request.
In the meantime Mr Pasini in the company of his sister and a Spanish lawyer met a Mr Juan Miguel Ponce Edmondson (“Mr Ponce”), an officer of Mexican Interpol. Mr Ponce told Mr Pasini that there was no chance of fighting the government. It was like David and Goliath. The only way forward was to negotiate with him. He told them they had to understand “…that the problem Carlos [Cabal] had at that stage was only a political problem and could only be resolved in a political way”.The people who were after Cabal wanted “to present him to the public in a photo behind bars and with the striped prison suit on”.He advised that Mr Cabal should give himself up. If he did not there would be serious consequences for him and those close to him or who helped him. A subsequent meeting was arranged with Mr Ponce who was asked which politician Mr Cabal had offended. Mr Ponce gave no reply.
In October 1995 Mr Pasini’s apartment in France was searched by two French policemen and a Mexican police officer. He was taken to the police station and kept there for two and a half days and interviewed. Mr Pasini subsequently went to Spain. While there he was asked where Mr Cabal was. The question was posed by telephone by the same Mexican officer. He claimed to have been threatened by the officer because of his non-cooperation. The officer claimed, so Mr Pasini said, that he would be very happy to do damage to him personally.
The first of two warrants against Mr Pasini was issued on 18 January 1996 following a review of a decision by the Seventh District Criminal Court for the Federal District denying issue of a warrant. The warrant alleged contravention by Mr Pasini of article 112, section V, clauses c) and e) of the Credit Institutions Law. The original complaint was made on 3 October 1995 and an application for an order of apprehension was made on 24 October 1995. On 29 August 1996 a second warrant was issued against Mr Pasini following an appeal to the Third Unitary Circuit Court against the denial of a warrant. Although the appeal denied issue of the warrant against four of the persons named it authorised issue against Mr Pasini and another.
On 11 November 1998 Mr Cabal was arrested by the Australian Federal Police. He was driven to a carpark near Luna Park at St Kilda where another vehicle with three Mexicans was waiting. One of these was Mr Ponce. The other two were introduced to Mr Cabal as a General and a member of Interpol respectively. While the Australian police withdrew Mr Ponce told Mr Cabal, according to the latter, that he knew Mr Cabal’s problem was a political one. If Mr Cabal were willing to return voluntarily to Mexico his family would be able to remain in Australia. Mr Cabal was unable to talk to his wife by telephone at this time. On the same day Mr Pasini’s car was intercepted near Mr Cabal’s Brighton home. Mr Ponce is said to have said to Mr Pasini in Spanish: “So you’re Marco Pasini. Well I’ve really fucked you now and that’s how you’re going to finish up.”
Since their respective arrests in November 1998 both Mr Cabal and Mr Pasini have been in custody at Port Phillip Prison in Victoria, although Mr Pasini was recently granted bail pending the determination of this appeal by this Court.
There were two extradition requests received from Mexico in respect of Mr Cabal. The first on 6 January 1999 relied upon the initial thirteen warrants referred to above. The second, received on 11 February 1999 relied upon three warrants already mentioned and a fourth issued by the Second District Judge on 7 January 1999. In respect of Mr Pasini there was only one request, received on 20 January 1999 relying on the two warrants issued against him in Mexico.
On 23 March 1999 Mr Cabal released a media statement, which was also placed on a website that he had established. In it Mr Cabal claimed that there had been unfair and undeserved victimisation of himself by the Mexican government, whose only purpose was, he said “to distract the Mexican people from the disastrous failures of economic policies implemented by the financial authorities”. He said he had been targeted because of his political views. He continued:
“I am being persecuted because of the threat that is believed I represent to the system. I am not aligned to any political group, but I supported the former presidential candidate Louis Donaldo Colosio because I agreed with his social policies to develop the whole of Mexico.
Colosio was assassinated a few months before the presidential election which he most certainly would have won and I believe Mexico would have had a very different reality.
This murder, as well as a rebel uprising in the Mexican south, created great instability in Mexico and a new power struggle at a time when the economic crisis was beginning.
I was not as enthusiastic about Zedillo’s policies as I was about Colosio’s. This and the fact that I did not support Zedillo as much as I did with Colosio has cost me dearly.”
Mr Cabal asserted there was no missing money and the charges were a fabrication which could quickly be proved wrong. He claimed to be the subject of political persecution, saying:
“I am certain that I am persecuted by reason of my political opinions. I am confident, given the appropriate opportunity, that I can prove this as a valid opposition to Mexico’s request for my extradition. More importantly, I strongly believe, again given the right opportunity, that my innocence will prevail.”
An article was published in Mexico said to be based on an interview with Mr Cabal in the Miami Herald of 29 May 1999. The article disclosed that Mr Cabal had contributed $25 million to the government party in 1994 including $5 million for President Zedillo’s campaign. Mr Cabal is reported as saying that donations of this kind were normal in Mexico and part of the system functioning between politicians and business people. The article reported Mr Cabal’s claim that he was the victim of political persecution, because he was not as enthusiastic about Zedillo’s policies as he was about Colosio’s. The article quoted a government spokesman as rejecting the claims of financial impropriety or political retribution.
Mr Cabal’s media statement was responded to by the PRI on 15 July 1999. It claimed that intervention in the affairs of Banco Union had been made necessary by financial losses which Banco Union had suffered as a result of illegal operations carried out by Mr Cabal. An embargo had been placed on Mr Cabal’s assets and accounts throughout the world so it was said. The response continued:
“The offences for which he is being prosecuted are those of fraud against individuals and against financial institutions, and also tax fraud, all of which have inflicted heavy financial losses on Mexican citizens and companies. Worse still, Cabal Peniche has allegedly committed an offence classified by the law as serious, namely that of money laundering. The illegal acts of which he is accused involve over 600 million dollars.”
The facts, so the advertisement claimed, established that Mr Cabal was not being prosecuted for political reasons but because he was an alleged offender.
THE SUBMISSIONS BEFORE THE LEARNED PRIMARY JUDGE
There were numerous objections raised before the learned primary judge to the surrender of both Mr Cabal and Mr Pasini. As summarised by his Honour these were specifically:
“1. That the Extradition Act 1988 is unconstitutional.
2.That the documents said to be warrants for the arrest of Cabal and Pasini under Mexican law, are not warrants.
3.That the translations of the Spanish language documents supplied by Mexico to the Australian Government and the Spanish language documents themselves were not duly authenticated – not being sealed and signed or certified as required by the Act.
4.The translations provided were partial or unqualified or unreliable.
5.The documents provided by Mexico were illegible or incomplete.
6.The statements of conduct alleged against the applicants did not comply with the requirements of the Extradition Act.
7.The surrender of the applicants is sought in order to prosecute them for their political opinions and if surrendered they may be prejudiced because of those opinions. (an extradition defence)
In addition, the magistrate was said to have “erred in various ways by failing to take into account relevant material, evidence and submissions and by applying wrong legal tests”.
SUMMARY OF THE OFFENCES ALLEGED AGAINST MR CABAL – THE FIRST EXTRADITION REQUEST
The notice issued by the Acting Attorney-General to the magistrate under s 16 of the Extradition Act 1988 (Cth) (“the Act”) summarises the offences said to have been committed by Mr Cabal and which relate to the first extradition request as follows:
“1.Being an employee and officer of a credit institution who authorised transactions, being aware that such transactions will result in loss to the institution to which he renders his services, contrary to Article 112, section V of the Law of Credit Institutions of Mexico (six counts).
2.Being an employee and officer of a credit institution who granted credit to individuals or corporations whose insolvency condition is known to him, if it is foreseeable, at the moment of the execution of the transaction, that the individual or corporation lacks the financial capacity to pay or who is responsible for the total of the credited sums, deriving in economic loss to the institution, contrary to Article 112 section V(c) of the Law of Credit Institutions of Mexico (five counts);
3.Being an employee and officer of a credit institution who renewed partially or totally overdue credits to individuals or corporations referred to in Article 112 section V(c) of the Law of Credit Institutions of Mexico, contrary to Article 112 section V(d) of the Law of Credit Institutions of Mexico (four counts);
4.Being an employee and officer of a credit institution who knowingly allowed a debtor to divert the total of the credit to his own benefit or that of third parties, and as a consequence, resulted in economic detriment to the institution, contrary to Article 112 section V(e) of the Law of Credit Institutions of Mexico (five counts);
5.Being an employee and officer of a credit institution who intentionally omits to register transactions carried out by the institution or who alters the registers so as to conceal the true nature of transactions carried out thereby affecting the state of the assets, liabilities, contingent accounts or profits, contrary to Article 113 of the Law of Credit Institutions of Mexico (two counts);
6.Being an employee and officer of a credit institution who either by himself or through an intermediary, unduly receives from his clients a benefit as a determining condition to carry out a transaction, contrary to Article 114 of the Law of Credit Institutions of Mexico (one count); and
7.Fraud, contrary to Article 386 of the Federal Criminal Code in Matters of Common Law for the Federal District and in Federal Matters for the Republic of Mexico (three counts).”
His Honour adopted, as a convenient overview of the offences, a memorandum prepared by the Attorney-General’s Department and provided to the Minister as set out in a judgment of Kenny J in Bertran v Vanstone (2000) 173 ALR 63 in proceedings for judicial review of the Minister’s decision to issue the notice under s 16, in the following terms, so far as relates to the first extradition request:
“The 23 offences against the Law of Credit Institutions allege that Cabal misused his position as President, major shareholder and member of the High Credit Committee of a bank, the Banco Union, to authorise loans and lines of credit to numerous companies whose solvency and ability to repay the loans was questionable. It is alleged that these companies were, in the main, controlled by Cabal himself and the loans received by these companies ultimately used by Cabal for his personal purposes, and acquiring another bank, the Banca Cremi. In some instances, the loans by Banco Union authorised by Cabal, which ultimately were received by the companies he controlled, were also used to benefit persons associated with him; in other instances money was diverted, with Cabal’s knowledge, from the accounts of other companies held at Banco Union to the accounts of the companies controlled by him to be used, ultimately, for his personal purposes. The amounts involved in the criminal conduct which is the subject of the 23 offences against the Law of Credit Institutions range from US$50 to $100 million.
…
The three fraud offences alleged against Cabal arise out of fraudulent scheme practised by officers in the Banco Union – with Cabal’s knowledge and authorisation – upon unsuspecting companies who approached the bank for loans. Selected companies seeking loans from Banco Union were persuaded by officers in Banco Union to participate in a scheme in which the loans would ostensibly be granted to the companies but would, in fact, be diverted to third party companies called the ‘terminal accredited persons’. The unsuspecting companies were told that the ‘terminal accredited persons’ would pay them high rates of interest. The unsuspecting companies were required to sign blank promissory notes by way of security and hand these to officers in Banco Union. It is alleged that Cabal designed the scheme and authorised his officers in Banco Union to market the scheme to selected unsuspecting corporate customers.
The ‘terminal accredited persons’ in fact, were paper companies or companies mainly controlled by Cabal. It is alleged that neither Cabal nor his officers in Banco Union had any intention to ensure payment of high rates of interest by the ‘terminal accredited persons’ to the unsuspecting victim companies. The money was not repaid to the companies but rather it was used by Cabal for his own purposes. At the end of the day the victim companies owed money to the bank but the ‘terminal accredited persons’ were without any assets. In this scheme, three companies are alleged to have been defrauded of approximately US$54 to $57 million in each case.
A total loss of US$242,722,590 was allegedly suffered by Banco Union and the defrauded companies as a result of Cabal’s conduct.”
SUMMARY OF THE OFFENCES ALLEGED AGAINST MR CABAL – THE SECOND EXTRADITION REQUEST
The notice issued by the Acting Attorney-General to the magistrate under s 16 of the Act summarises the offences said to have been committed by Mr Cabal and which relate to the second extradition request as follows:
“1.Tax Fraud Comparable, contrary to Article 109 section I of the Federal Tax Code of Mexico (two counts);
2.Falsely Declaring Losses, contrary to Article III section IV of the Federal Tax Code of Mexico (one count);
3.Being an employee and officer of a credit institution who granted credit to individuals or corporations whose insolvency condition is known to him, if it is foreseeable, at the moment of the execution of the transaction, that the individual or corporation lacks the financial capacity to pay or who is responsible for the total of the credited sums, deriving in economic loss to the institution, contrary to Article 112 section V paragraph (c) of the Law of Credit Institutions of Mexico (one count); and
4.Money Laundering, contrary to Article 115 Bis section I paragraph (b) of the Federal Tax Code of Mexico (one count)”
The memorandum prepared by the Attorney-General’s Department as set out in the judgment of Kenny J to which reference has already been made, so far as relates to the second extradition request is in the following terms:
“The second request seeks Cabal’s extradition in relation to four warrants ordering his arrest for the following five offences in Mexico:
(a)Tax Fraud Comparable contrary to Art 109 section I of the Federal Tax Code of Mexico (2 counts);
(b)Falsely Declaring Losses contrary to Art III, section IV of the Federal Tax Code of Mexico (1 count);
(c)an offence contrary to Art 112, section V para (c) of Mexico’s Law of Credit Institutions (1 count); and
(d)Money Laundering contrary to Art 115 Bis, section I, para (b) of the Federal Tax Code of Mexico (1 count).
The offence against Art 112, section V, para (c) of Mexico’s Law of Credit Institutions was included in the first extradition request. However, due to technical difficulties with the supporting documents presented in the first request, and following consultations between the Mexican authorities and departmental officers, the Mexican authorities decided to remove this offence from the first request and present it in the second request. The remaining four offences are additional to those included in the first request.
The offence of Falsely Declaring Losses and one of the counts for the offence of Tax Fraud Comparable were allegedly committed by Cabal in the State of Tabasco, Mexico, while he was President and administrator of a banana production and marketing company… Briefly, it is alleged that Cabal was responsible for [the company] filing a false taxation return for the 1993 fiscal year. The company is alleged to have falsely claimed 13,016,976 Mexican Pesos worth of expenses and deductions to avoid the payment of Mexican federal taxes.
The offence against the Law of Credit Institutions and the Money Laundering offence arise out of Cabal’s alleged misuse of his position as President, major shareholder and member of the High Credit Committee of a bank in Mexico called the Banco Union. It is alleged that in May 1994, at Mexico City, Cabal authorised a line of credit of US$50 million to a company…whose solvency and ability to repay the loans was questionable. It is alleged that the funds from the line of credit ultimately benefited Cabal, directly and indirectly, as well as persons associated with him. It is alleged that the funds from the line of credit were also used by Cabal for his personal purposes, including acquiring another bank, the Banca Cremi. The funds allegedly passed through a number of entities controlled by or related to Cabal to conceal the fact that the funds advanced to [the company] by Banco Union were being diverted to Cabal’s own use.
The second count for the offence of Tax Fraud Comparable alleges that Cabal falsely declared his income in his personal tax return for the 1993 fiscal year. Cabal is alleged to have understated his income by 488,518,032.99 Mexican Pesos.”
SUMMARY OF THE OFFENCES ALLEGED AGAINST MR PASINI
The notice issued by the Attorney-General to the magistrate under s 16 of the Act summarises the offences said to have been committed by Mr Pasini in respect of which extradition is requested as follows:
1.One count of wilfully helping Carlos Cabal Peniche to commit the following crime: being an employee and officer of a credit institution who granted credit to individuals or corporations whose insolvency condition is known to him, if it is foreseeable, at the moment of the execution of the transaction, that the individual or corporation lacks the financial capacity to pay or who is responsible for the total of the credited sums, deriving in economic loss to the institution, contrary to Article 112 section V(c) of the Law of Credit Institutions of Mexico in connection with Article 13, section VI of the Federal Criminal Code in Local Matters for the Federal District and in Federal Matters for the Republic of Mexico;
2.One count of wilfully helping Carlos Cabal Peniche commit the following crime: being an employee and officer of a credit institution who knowingly allowed a debtor to divert the total of the credit to his own benefit or that of third parties, and as a consequence, resulted in economic detriment to the institution, contrary to Article 112 section V(e) of the Law of Credit Institutions of Mexico in connection with Article 13, section VI of the Federal Criminal Code in Local Matters for the Federal District and in Federal Matters for the Republic of Mexico; and
3.One count of concealment contrary to Article 400, section II of the Federal Criminal Code in Local Matters for the Federal District and in Federal Matters for the Republic of Mexico.”
The memorandum relating to the extradition request in relation to Mr Pasini is in the following terms:
“The Mexican authorities allege that Pasini assisted his brother-in-law Carlos Cabal Peniche (Cabal), whose extradition is also being sought by Mexico, to defraud Banco Union.
…
The first two counts allege Pasini assisted Cabal in relation to the making of a fraudulent loan to a company…On 26 January 1994 the High Credit Committee of Banco Union, with Cabal’s approval, authorised a line of credit of US$80 million to [the company]. [The company] was controlled by Cabal. It is alleged that [the company] did not have the capacity to repay these advances and that the funds were passed through a number of transactions before being diverted to Cabal’s own use. Pasini is alleged to have assisted Cabal in relation to the offences arising from this loan because he allowed part of the funds obtained by [the company] pursuant to the line of credit to be passed through his cheque account.
It is alleged that 30,121,878.65 Mexican Pesos advanced to [the company] under the line of credit were paid into Pasini’s cheque account on 31 August 1994. On the same day these funds were then combined with other funds in Pasini’s account to allow Pasini to write a cheque for 89,780,681.55 Pesos to Banco Union to purchase US$26,409,966.63 which were then paid into an account held by [the company].
The third offence alleges that in 1995, Cabal, while living in Spain, had a company called Xurtu SL incorporated. Pasini, who by this time was also living in Spain, was appointed president of Xurtu. It is alleged that part of the funds defrauded by Cabal from Banco Union were transferred from an account operated by Cabal’s lawyer in the United States to Xurtu and then used by Pasini to pay Cabal’s living expenses to prevent Cabal being located in Spain. Pasini was signatory to the Xurtu bank accounts in Spain.”
THE LEGISLATION
The Act was enacted in 1988 to codify the law of extradition of persons from Australia to what are referred to in the Act as “extradition countries” and to provide for proceedings (see s 3(a)):
“by which courts may determine whether a person is to be, or is eligible to be, extradited, without determining the guilt or innocence of the person of an offence;”
Mexico is an extradition country for the purposes of the Act, see Regulation 4 of the Extradition (United Mexican States) Regulations 1991 and the definition of “extradition country” in s 5 of the Act.
For present purposes the process of extradition commences with an application made on behalf of the extradition country to a magistrate for the issue of a warrant of arrest. Where, as here, the magistrate is satisfied that the person named by the extradition country is an “extraditable person” the magistrate will issue a warrant and send to the Attorney-General a report stating that a warrant has issued: (ss 12(1) and (2)). Once the arrest has taken place the person arrested is required to be brought before a magistrate when he or she may be remanded in custody or on bail pending the conduct of the proceedings: ss 15(1) and (2).
At or around the same time the Attorney-General will have received from the extradition country a request that the person be extradited: s 16(1). The Attorney-General may, if of the opinion that the person is “an extraditable person” in relation to that country and that the conduct constituting the extradition offence if it had taken place in Australia at the time the extradition offence was received would have constituted an extradition offence in relation to Australia, then give notice to a magistrate that a request has been received.
Where, as here, the person arrested does not consent to the surrender and an application is made by the extradition country to the magistrate for proceedings to be conducted under s 19 the magistrate is then required to:
“conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.”
Eligibility for surrender is established only if the provisions of s 19(2) of the Act are satisfied. First certain formal matters must be satisfied. These are the production of the documents referred to in ss 19(2)(a) and (b). Secondly the requirement often referred to as the double criminality requirement must be satisfied, namely that the magistrate be satisfied that if the conduct constituting the offence, or equivalent conduct, had taken place in that part of Australia where the proceedings are being conducted at the time the extradition request was received the conduct would have constituted an extradition offence in relation to that part of Australia. Finally, eligibility will not be established if the person satisfies the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence. The expression “extradition objection” is defined in s 7 of the Act, relevantly, to be an objection where:
“(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;”
Section 19(5) of the Act provides:
“In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought.”
Where the magistrate determines that the person is eligible for surrender in relation to the extradition offence or one or more extradition offences the magistrate is required to order that the person be committed to prison to await surrender.
Section 21 of the Act gives to a person committed by the magistrate to prison to await surrender the right to apply to this Court, or the Supreme Court of a State or Territory for a “review” of the magistrate’s order. The Court may by order confirm the order of the magistrate or quash it and order the release of the person committed to prison. There is an appeal to the Full Court of this Court from the order made on the review and subject to special leave, an appeal lies ultimately to the High Court. In the review, and in any appeal to the Full Court or the High Court, s 21(6)(d) provides that:
“the court to which the application or appeal is made shall have regard only to the material that was before the magistrate.”
Notwithstanding that the court on the review may confirm the order of the magistrate that the person be eligible for surrender to the extradition country, s 22 of the Act confers upon the Attorney-General a discretion to be exercised as soon as possible after the review, or any appeal has been finalised, to determine:
“whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences.”
However, s (3) of that section provides that the eligible person is only to be surrendered in respect of an offence or offences if the Attorney-General is satisfied, inter alia that there is no extradition objection in relation to the offence.
THE JUDGMENT APPEALED FROM
The learned primary judge decided all of the objections to the surrender adversely to Mr Cabal and Mr Pasini. The appellants filed numerous grounds of appeal putting in issue all of the matters argued before his Honour .
On the third day of the hearing of the appeal, senior counsel for the appellants indicated that the appellants wished to abandon many of the grounds of appeal. In essence the abandoned grounds may be described as those which dealt with the question whether the documents tendered by Mexico complied with the formal requirements of the Act. The grounds of appeal which remain fall within the following headings:
1.Whether s 21 of the Act was invalid as conferring upon the Court an administrative, rather than a judicial function.
2.Whether the documents tendered by Mexico set out conduct constituting the offence as required by s 19(3)(c)(ii) of the Act.
3.Whether the documents referred to above as “warrants” fell within s 19(3)(a) of the Act.
4.Whether the learned primary judge erred in holding that the appellants had not made out an extradition objection under s 7 of the Act – that is a case that they had been proceeded against because of their political opinions.
Relevant to the last of these grounds is the use to which material which the magistrate rejected might be put by a judge on review.
Given the concession made by the appellants it is unnecessary to record the decision of the learned primary judge so far as it dealt with matters no longer at issue between the parties. The following summary of his Honour’s reasons is accordingly limited to the matters which remain in issue.
The judgment appealed from – The Constitutional question
The learned primary judge rejected the submission that the Act was invalid as purporting to confer upon the Court an administrative function and to require the Court to exercise administrative powers in the performance of that function. While, in his Honour’s view the hearing before the magistrate was properly to be characterised as an administrative hearing (cf Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528), it did not follow that the Court in reviewing the order of the magistrate was exercising an administrative function.
In reaching his conclusion French J accepted the description of the nature of the review to be undertaken by the Court as stated by Hill J in Republic of South Africa v Dutton (1997) 77 FCR 128 at 136 as follows:
“From these matters it seems to me clear that the review contemplated by s 21 is not a species of judicial review in the sense of a review limited to correcting legal error. It is a rehearing in which the court undertaking the review is authorised to reach its own conclusions on eligibility for surrender, but a rehearing which is limited statutorily to the material before the magistrate. Fresh evidence it would seem would not be admissible. This is hardly likely to cause difficulty since the hearing before the magistrate, the subject of the review, is, in any event, largely a hearing on documentary material.”
In the learned primary judge’s view the function of determining whether a person was eligible for surrender, while being administrative when exercised by a magistrate, changed its nature when exercised by the Court. This “chameleon” change of character was like the exercise by the Court of a power to order a trade mark to be removed, an administrative function when exercised by the Registrar of Trade Marks, but a judicial function when exercised by a court, cf The Queen v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1. The nature of the exercise by the Court of its function is not affected by the discretion conferred upon the Minister under s 22 of the Act. The decision of the Court on the question whether a person was liable to surrender was a final and operative order and in giving it the Court was exercising the judicial power of the Commonwealth.
The judgment appealed from – Did the warrants set out the conduct constituting the offence?
It was the Appellant’s case before French J that there had to be before the magistrate a duly authorised statement in writing which identified conduct which, if done by the person the subject of the proceedings would amount to the offence or the offences the subject of a warrant. However, it was submitted that the statements of conduct in the present case were deficient for a number of reasons arising under Mexican law, particularly in the description of the office alleged to have been held by Mr Cabal (a particular office being essential to the offence committed, so it was said) and in some cases in not alleging that, as a result of the alleged transactions said to have been entered into by Mr Cabal, the Bank had suffered loss. There was a related submission put to his Honour that the statements of conduct were not as required by the Act because each statement was not confined to the conduct constituting a discrete offence in Mexico.
The latter point was the subject of a decision of the Full Court of this Court in McDade v The United Kingdom [1999] FCA 1868 and regarded by his Honour as decided by that case. Special leave to appeal that decision was granted by the High Court, but was subsequently revoked. The former point was, so it is submitted not dealt with by his Honour. That is not quite correct. In a separate, but interlocutory judgment given during the course of the hearing (see Cabal v United Mexican States (No 1) (2000) 171 ALR 649) his Honour had held that it was not open to the appellants in these proceedings to argue that the statements of conduct were deficient in stating the acts or omissions which constituted the offences said to have been committed in the foreign state, having regard to the provisions of s 19(5) of the Act. In extradition proceedings the magistrate, who is not an expert in foreign law, was not required to examine whether the conduct of the person as alleged did amount to a breach of the relevant law of the extradition country, see Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 299-300 and 303 and United States of America v Holt (1994) 49 FCR 501 where it was said at 504 citing Zoeller at 299-300:
“The magistrate does not have to be satisfied that the ‘conduct constituting the offence’ as set out in the s 19(3)(c)(ii) statement constitutes the foreign offence described in the s 19(3)(c)(i) statement.”
The judgment appealed from – Were the warrants tendered “warrants” within the meaning of the Act?
As to the question whether the so-called “warrants” fell within the use of that word in the Act, his Honour held that when used in the Act the word “warrant” had its ordinary meaning, namely a document issued, inter alia, by an officer of the State authorising a particular action, as, for example, empowering the police to make an arrest or carry out some action relating to the administration of justice. It was sufficient that the documents empowered a public officer to take a person into custody for an extraditable offence. It did not matter that other steps might be required to implement the order.
In holding that the documents here in question satisfied the description of “warrants” French J preferred the evidence of Mr Rudolfo Dela Guardia Garcia (“Mr Dela Guardia”), a legal attache with the Mexican Embassy (and a former prosecutor in Mexico) who expressed the view that they were, in preference to the evidence of a Mr Del Toro, an academic with no recognised post-graduate qualifications and entitled to practice for only four years, who was of the view that they were not. According to Mr Del Toro, a three stage process was required in Mexico in association with the issue of a warrant, and without each stage having been completed the process was incomplete. His Honour also did not accept the evidence of a Mr Izunza who also expressed the view that the documents were not warrants in accordance with Mexican law because before a person could be arrested pursuant to them there was a need for a separate written direction from the Public Ministry. However, it is clear from the judgment at first instance that his Honour’s view did not turn upon the question of acceptance or otherwise of evidence, but rather upon the fact that merely because there were additional steps of a procedural kind necessary to give effect to the arrest of a person named in the warrants did not deprive the documents of their character as warrants for the purposes of the Act.
The judgment appealed from – Did the appellants make out an extradition objection?
As noted earlier his Honour was of the view that neither of the appellants had made out a case that the purpose for which the surrender was sought was prosecution or punishment on account of political opinion as required by s 7(b) of the Act or that they might be prejudiced at the trial, or prejudiced, detained or restricted in their personal liberty by reason of their political opinions so as to make out an extradition objection under s 7(c) of the Act.
At the commencement of French J’s discussion of the matter his Honour noted (and this part of his Honour’s judgment was heavily criticised) that having regard to s 19(5) of the Act which forbids the requested person from contesting that he or she had engaged in the conduct constituting the extraditable offence in respect of which the surrender was sought, the issue of whether there were substantial grounds for believing the request was made for the purpose of prosecuting or punishing a person on account of his or her political opinions had to be considered on the premise that the person had engaged in the conduct which constituted the offence. This, so his Honour said, therefore excluded debate that the charges were falsely fabricated because of the person’s political opinions.
In his Honour’s view, therefore, it was necessary for the appellants to show that the extradition country sought the surrender so as to prosecute or punish them for the extradition offence, but did so on account of the political opinions that each held. That is to say the surrender had to be shown to have been sought for a double purpose; prosecution for the offence and because of the political opinions, the former purpose being accepted having regard to s 19(5).
His Honour gave little weight to a substantial body of evidence that had been adduced by the appellants. Of greater significance to his Honour’s conclusion was that on the facts of the present case the offences alleged were serious and the amounts involved very large, indeed in excess of $US50,000,000. Indeed the case was one where, as his Honour observed, failure to prosecute would involve a dereliction of duty by the government or regulatory authority. Thus, his Honour said:
“It would require a weighty case to support the contention that there are substantial grounds for believing the surrender of the applicants is actually sought for the purpose of prosecuting or punishing them on account of their political opinions.”
There appears to be some doubt as to whether the Court may intervene in the extradition process in circumstances where it can be demonstrated that there has been an abuse of process, or that the Commonwealth Director of Public Prosecutions (who has the carriage of extradition proceedings in this country) has acted fraudulently or in bad faith. There are some cases which suggest that the Court may stay such proceedings. They include Bou-Simon v Attorney-General (Cth) (2000) 96 FCR 325; R v Horseferry Road Magistrates’ Court; Ex parte Bennett [1994] 1 AC 42; and R v Martin [1998] AC 917. However, in Bou-Simon the facts differed significantly from the present case. The application was brought pursuant to s 39B of the Judiciary Act and concerned an attempt to extradite the appellant from France rather than, as in the present case, an attempt to extradite a person from Australia.
In Papazoglou v Republic of the Philippines (supra) a Full Court held that neither the magistrate, nor the Court on review, had power under the provisions of the Act to stay an extradition proceeding as a consequence of an abuse of process. Papazoglou was followed by Burchett J in Dutton v Republic of South Africa (1999) 84 FCR 291 at 303, by Katz J in Bennett v Government of United Kingdom [2000] FCA 916 at pars 107-108 and by another Full Court in Federal Republic of Germany v Parker (supra) at 339-341. These cases seem to us to present a significant obstacle to the appellants’ case in this regard, suggesting as they do that the matters raised in the notice of motion cannot be considered on review.
We doubt that s 39B of the Judiciary Act can properly be invoked in order to bring about indirectly a result which, by reason of the line of authority set out above, cannot be achieved under the provisions of the Act. That is so notwithstanding the fact that judicial review under s 39B, unlike judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) is not expressly excluded by the Act – see Wiest (supra) at 483, 488-491 and 505. Certainly Papazoglou suggests that s 39B cannot be invoked as a basis for staying extradition proceedings as an abuse of process – see the discussion in Papazoglou at 139 of the powers of this Court, in its original jurisdiction, to terminate proceedings under s 19 of the Act on the ground that they constitute an abuse of process.
If it should ultimately prove to be the case that the Mexican Government has deliberately failed to disclose material to the magistrate which ought to have been disclosed, and thereby misled both the magistrate and the learned primary judge on review, that would be a most serious matter. It would, however, be a matter which, under s 22 of the Act, may be taken into account by the Attorney-General in deciding whether to exercise his discretion to permit Mr Cabal and Mr Pasini to be surrendered. Reserving this matter to the Attorney-General (whose decision may itself be subject to judicial review under s 39B) is a course which accords with the reasoning of the Full Court in Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 412-413.
CONCLUSION
It follows from the reasons set out above that the appeal must be dismissed. The appellants must pay the first respondent’s cost of and incidental to the appeal.
I certify that the preceding three hundred and six (306) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate:
Dated: 18 April 2001
Counsel for the Appellants: Mr JWK Burnside QC, with Mr J Manetta Solicitors for the Appellants: Phillips Fox Counsel for the First Respondent: Mr GAA Nettle QC with MS MM Gordon Solicitor for the First Respondent: Commonwealth Director of Public Prosecutions Counsel for the Third Respondent: Dr DMJ Bennett QC with Mr MK Moshinsky
Intervening on behalf of the Commonwealth Attorney-GeneralSolicitor for the Third Respondent: Australian Government Solicitor Date of Hearing: 27, 28, 29 and 30 November 2000 Date of Judgment: 18 April 2001
Cabal v United Mexican States [2001] FCA 427
Cabal v Attorney-General of the Commonwealth [2001] FCA 583
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