Cabal v United Mexican States

Link copied
Case Copied 33 min read

FEDERAL COURT OF AUSTRALIA

Cabal v United Mexican States [2001] FCA 97

EXTRADITION – application for leave to appeal from refusal of bail pending determination of appeal to Full Court against dismissal by single judge of application to review magistrate’s order – successive unsuccessful applications – “special circumstances” – whether changed circumstances necessary – whether comments of judges and others can be “special circumstances” – risk of absconding

Extradition Act 1988 (Cth) ss 21(6)(f)(iv), 53
Federal Court of Australia Act 1976 (Cth) s 24(1A)

Cabal v United Mexican States [2000] FCA 7 - considered
Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 - mentioned
Wu v Attorney-General (Cth) (1997) 79 FCR 303 - mentioned
Bertran v Minister for Justice (1999) 165 ALR 155 - mentioned
von Arnim v Federal Republic of Germany [1994] FCA 1747 - mentioned
Holt v Hogan(No 1) (1993) 44 FCR 572 - mentioned
Cabal v McDonnell [1999] VSC 221 - mentioned
Cabal v United Mexican States(No 2) [2000] FCA 295 – considered
Cabal v United Mexican States (No 5) [2000] FCA 525 - considered
Cabal v United Mexican States (No 3) [2000] FCA 1204 - mentioned
Cabal v Secretary v Department of Justice (Victoria) [2000] FCA 949 - considered
Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 1227 - considered

CARLOS CABAL PENICHE v UNITED MEXICAN STATES
NO V 1 OF 2001

HEEREY, MARSHALL and MERKEL JJ
21 FEBRUARY 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 1 OF 2001

BETWEEN:

CARLOS CABAL PENICHE
APPLICANT

AND:

UNITED MEXICAN STATES
FIRST RESPONDENT

LISA HANNAN M
SECOND RESPONDENT

JUDGE:

HEEREY, MARSHALL AND MERKEL JJ

DATE OF ORDER:

21 FEBRUARY 2001

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The application for leave to appeal is dismissed.

2.        The applicant pay the respondents’ costs to be taxed, including reserved costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 1 OF 2001

BETWEEN:

CARLOS CABAL PENICHE
APPLICANT

AND:

UNITED MEXICAN STATES
FIRST RESPONDENT

LISA HANNAN M
SECOND RESPONDENT

JUDGE:

HEEREY, MARSHALL AND MERKEL JJ

DATE:

21 FEBRUARY 2001

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

  1. The applicant Carlos Cabal Peniche (Mr Cabal) seeks leave to appeal from a decision of Gray J made on 20 December 2000 (Cabal v United Mexican States [2000] FCA 1892) dismissing his application to be admitted to bail pursuant to s 21(6)(f)(iv) of the Extradition Act 1988 (Cth) (the Act) which provides as follows:

    “(6)     Where the person or the extradition country:

    (a)applies under subsection (1) for a review of an order [of a magistrate for surrender under s 19(9)];

    (b)appeals under subsection (3) against an order made on that review; or

    (c)appeals to the High Court against an order made on that appeal;

    the following provisions have effect:

    (d)…

    (e)…

    (f)        if:

    (i)because of the order referred to…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Cabal v United Mexican States and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2001] FCA 97
Decision Date

CaseChat Overview and Summary

The case of Cabal v United Mexican States involved the applicants, who were facing extradition to Mexico, challenging the legality of their detention and seeking bail pending the outcome of their extradition proceedings. The matter was heard in the Federal Court of Australia, where Goldberg J was tasked with deciding on the bail application and the broader legal issues arising from the applicants' detention conditions and the validity of their extradition warrant.

The primary legal issues before the court were whether the applicants could demonstrate "special circumstances" justifying their release on bail and whether the conditions of their detention constituted a breach of their rights that could impact the validity of their extradition warrant. Goldberg J meticulously reviewed the conditions under which the applicants were held, noting the differences between the Sirius East unit, where the applicants were placed for protective reasons, and the mainstream prison population. The judge also examined the applicants' arguments about the harshness of their conditions and whether these conditions warranted a more favourable view in relation to the grant of bail.

Goldberg J concluded that the applicants had not demonstrated special circumstances warranting bail. His Honour found that while the conditions in Sirius East were difficult, they did not differ significantly from those typically experienced by individuals awaiting extradition proceedings. The judge also determined that the applicants' detention conditions did not affect the validity of the extradition warrant. Consequently, Goldberg J dismissed the bail application and denied the applicants leave to appeal.

The court's final orders included dismissing the application for leave to appeal and directing the applicants to pay the respondents' costs, which were to be taxed, including any reserved costs.

Orders

Orders of the court

1. The application for leave to appeal is dismissed.

2. The applicant pay the respondents’ costs to be taxed, including reserved 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

On 27 July 1999 a hearing commenced before Lisa Hannan M. The delay was due largely to requests for preparation time by the applicants, proceedings taken by them to challenge the validity of notice by the Minister for Justice and Customs pursuant to s 16 of the Act and adjournments to enable the applicants and their counsel to prepare for the hearing. After a hearing lasting 69 days the magistrate on 17 December 1999 determined pursuant to s 19(9) that the applicants were eligible for surrender to Mexico. Her Worship accordingly signed warrants pursuant to s 19(9)(a). Each warrant ordered the committal of the relevant applicant to the Melbourne Assessment Prison or Port Phillip Prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under s 22(5) of the Act. Pursuant to those warrants Mr Cabal has been held in custody ever since. First bail decision of Goldberg J, 4 January 2000 The applicants applied under s 21(1) of the Act for a review by the Federal Court of the magistrate’s order. They also applied for release on bail pending the hearing and determination of the review. On 4 January 2000 Goldberg J dismissed the bail application: Cabal v United Mexican States [2000] FCA 7. His Honour discussed a number of authorities, in particular Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70, Wu v Attorney-General (Cth) (1997) 79 FCR 303, Bertran v Minister for Justice (1999) 165 ALR 155, von Arnim v Federal Republic of Germany [1994] FCA 1747 and Holt v Hogan(No 1) (1993) 44 FCR 572, and concluded (at par 12) that the requirement of “special circumstances” meant that a judge had to decide“… whether circumstances relied upon are different from the circumstances which ordinarily apply where a person is in custody pending extradition proceedings and which by their nature warrant a more favourable view in relation to the grant of bail.” In the course of a detailed judgment, Goldberg J dealt with the conditions in which the applicants were held in prison. They were held at the Melbourne Custody Centre for a short time and then transferred to the Melbourne Assessment Prison where they remained until 4 January 1999 when they were transferred to Port Phillip Prison at Laverton. That prison is divided into a number of units for different categories of prisoners. There is no separate area to house prisoners on remand. The applicants were placed in the transit unit for some three weeks and then moved into the Scarborough South unit with mainstream prisoners. In August 1999 they were transferred to a unit within Port Phillip Prison called Sirius East. His Honour said (at pars 57-58):“57. Mr Shane Kelly, the head of operations at Port Phillip Prison and an experienced prison officer, said that the applicants were moved into protective custody in the Sirius East unit because information was received which indicated that their safety would be in jeopardy if they were left in Scarborough South. Mr Kelly’s decision was supported by the Correctional Services Commissioner for Victoria. Within the Victorian prison system, there is no viable alternative to detaining the applicants other than in Sirius East. Sirius East is used as a protective unit to house prisoners whose safety may be in jeopardy if they mix within the mainstream population. At the present time there are twenty-two prisoners in Sirius East. Sirius East has less facilities available to the prisoners than are available in Scarborough South. The prisoners in Sirius East are not able to leave the unit unless they have a specific reason for doing so such as a professional visit or a medical visit. Prisoners in the Scarborough Unit have access to the prison library and certain work activities. Whilst the applicants were placed in the Scarborough Unit Mr Pasini worked in the prison library.58. The conditions in which the applicants are kept in the Sirius East unit is one of the factors relied upon by the applicants as constituting special circumstances or a component of special circumstances so it is necessary to understand the evidence in relation to the conditions in that unit. There is no doubt that the conditions are very difficult and are harsher than the area where mainstream prisoners are kept. Evidence was given about these conditions by Mr Kelly and, in particular, by another prisoner presently housed in the Sirius East unit. The applicants also gave evidence as to the difficulties they were encountering in the Sirius East unit. Notwithstanding the vehemence with which the other prisoner criticised the conditions in the Sirius East unit there is little conflict in the evidence as to the nature and extent of those conditions. As I have noted earlier, Sirius East is a specialist unit which predominantly holds prisoners who are in need of protection from other prisoners. Such prisoners are Crown witnesses who may be subject to threats, prisoners who are at risk because of the nature of their offences such as sex offenders against children, prisoners who have been serving policemen, prisoners who have been attacked by other prisoners and prisoners who have been subjected to extortion because they are perceived to have access to money. Notwithstanding the nature of the occupants Mr Kelly said that Sirius East is a quiet and safe area when compared to the mainstream section of the prison and that there are very few incidents of violence in it.”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.