Cabal v United Mexican States - [2000] FCA 1892

FEDERAL COURT OF AUSTRALIA
Cabal v United Mexican States [2000] FCA 1892
EXTRADITION – bail – special circumstances – application for bail pending appeal from review of determination of eligibility for surrender – appeal already heard – whether power to grant bail pending determination of appeal – whether Court can consider only circumstances changed since previous bail applications – whether special circumstances – time in prison – continuation of conditions previously held not to be special conditions – continued fear for safety in prison – expressions of concern by judges about treatment – allegation of breach of human rights in respect of conditions of detention previously found not to constitute special circumstances – role of human rights instruments in determining whether there are special circumstances – confidence of acquittal in extradition country – effect on family of person imprisoned – deterioration of mental condition – conditions on which bail granted.
WORDS & PHRASES – “special circumstances”, “conducted”, “heard”
Extradition Act1988 (Cth) ss 21, 53
Acts Interpretation Act 1901 (Cth), s 15AA
Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss 3, 11, 27
Cabal v United Mexican States [2000] FCA 7, followed
Cabal v United Mexican States (No 2) [2000] FCA 295, considered
Cabal v United Mexican States (No 5) [2000] FCA 525, considered
Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 949, cited
Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 1227, cited
Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70, discussed
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245, applied
Holt v Hogan (No 1) (1993) 44 FCR 572, considered
CARLOS CABAL PENICHE AND MARCO PASINI BERTRAN v UNITED MEXICAN STATES AND LISA HANNAN M
V 700 OF 2000
GRAY J
20 DECEMBER 2000
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V700 OF 2000

BETWEEN:

CARLOS CABAL PENICHE
FIRST APPELLANT

MARCO PASINI BERTRAN
SECOND APPELLANT

AND:

UNITED MEXICAN STATES
FIRST RESPONDENT

LISA HANNAN M
SECOND RESPONDENT

ATTORNEY-GENERAL (COMMONWEALTH) (Intervening)
THIRD RESPONDENT

JUDGE:

GRAY J

DATE OF ORDER:

20 DECEMBER 2000

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1. The applicant Marco Pasini Bertran be admitted to bail on the following conditions:
(a)That he enter into a recognisance in the sum of $500,000.00 in a form to be approved by the Director of Public Prosecutions with Margaret Mary Davies and Michael John Hunter Davies as sureties, the amount to be secured by a charge on their house and land at 190 Church Street, Brighton, Victoria.

(b)That he surrender all passports and other travel documents, whether in his own name or in any other name, and whether genuine or otherwise, in his possession or control.

(c)That he not carry, or have in his possession or control, any document of identity other than a document of identity in his own name.

(d)That he not apply for, or otherwise seek to obtain, any passport or other travel document, whether in his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] FCA 1892
Decision Date: 20 DECEMBER 2000

CaseChat Overview and Summary

In the matter of Cabal v United Mexican States, the primary issue before the court was the granting of bail to one of the applicants, Marco Pasini Bertran, while dismissing the application of the other applicant, Carlos Cabal Peniche. The case involved extradition proceedings brought by the United Mexican States against the applicants, and the applicants sought bail pending the outcome of their appeal to the Full Court. The court was tasked with determining the appropriate bail conditions for Mr Pasini and whether bail should be granted to Mr Cabal.

The court held that bail should be granted to Mr Pasini under strict conditions, including a high surety amount, the surrender of all passports and travel documents, and restrictions on travel and communication. The court also imposed a requirement for Mr Pasini to report twice daily to the Australian Federal Police. The court found that these conditions were necessary to ensure that Mr Pasini would appear for judgment when the Full Court delivered its decision. The court did not find it appropriate to grant bail to Mr Cabal, as the risk of flight and interference with the proceedings was deemed too high.

The court's reasoning was grounded in the need to balance the rights of the applicants with the risk of flight and the interests of justice. The stringent bail conditions were considered necessary to mitigate these risks while allowing Mr Pasini to maintain some degree of normalcy in his life. The court also noted that the liberty of the United Mexican States and the Minister for Justice to apply for revocation or modification of bail conditions in case of any threatened breach or change of circumstances was an important safeguard.

The final orders of the court were to admit Mr Pasini to bail under the specified conditions, dismiss the application of Mr Cabal for bail, and reserve liberty for the applicants to reapply and for the United Mexican States or the Minister for Justice to apply for revocation or modification of bail conditions. The court made no order as to costs due to the partial success of the applicants' applications.

Orders

Orders of the court

1. The applicant Marco Pasini Bertran be admitted to bail on the following conditions:

(a) That he enter into a recognisance in the sum of $500,000.00 in a form to be approved by the Director of Public Prosecutions with Margaret Mary Davies and Michael John Hunter Davies as sureties, the amount to be secured by a charge on their house and land at 190 Church Street, Brighton, Victoria.

(b) That he surrender all passports and other travel documents, whether in his own name or in any other name, and whether genuine or otherwise, in his possession or control.

(c) That he not carry, or have in his possession or control, any document of identity other than a document of identity in his own name.

(d) That he not apply for, or otherwise seek to obtain, any passport or other travel document, whether in his own name or any other name, and whether genuine or otherwise.

(e) That he reside with his spouse, Montserrat Pasini, at her home at 7 Harold Street, Middle Park, Victoria or at such other address as may be approved in writing by the Director of Public Prosecutions, such approval to be obtained prior to taking up such residence.

(f) That he not travel outside a radius of fifty kilometres from the Commonwealth Law Courts building at 305 William Street, Melbourne, Victoria.

(g) That he not attend within one kilometre of the Melbourne Airport at Tullamarine, Victoria, or any other airport or airfield, or attend at any port of international departure.

(h) That he refrain from communication, direct or indirect, with Carlos Cabal Peniche, his spouse, Teresa Pasini Cabal, and their children.

(i) That he refrain from receiving from Carlos Cabal Peniche, or from Teresa Pasini Cabal, directly or indirectly, any money, property or other benefit, other than a weekly living allowance not exceeding $750.00.

(j) That he report twice daily, once between the hours of 6.00 am and 8.00 am, and once between the hours of 6.00 pm and 8.00 pm, to the Officer-in-Charge, Australian Federal Police, 383 Latrobe Street, Melbourne, Victoria, or to some other person at some other place agreed in writing by the Director of Public Prosecutions.

(k) That he attend at the Federal Court of Australia on the occasion of the delivery of judgment by the Full Court of the Federal Court of Australia on the applicants’ appeal in proceeding no. V 700 of 2000 and surrender himself into the custody of the Court.

2. Liberty be reserved to the United Mexican States or the Minister for Justice to apply as a matter of urgency for the revocation of bail or the change of any of the conditions in paragraph 1 of this order in the event of any threatened or impending breach of any condition, or any change of circumstances giving rise to a risk that the applicant Marco Pasini Bertran will not appear on the delivery of judgment by the Full Court.

3. The application of Carlos Cabal Peniche for bail be dismissed.

4. Liberty be reserved to the applicants to apply.

5. There be no order as to 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

GRAY J

With respect to the reporting condition, condition (j), I am of the view that once daily reporting is inadequate. Normal bail conditions impose a requirement of reporting once between a designated hour in the morning and a designated hour in the afternoon on each day. The problem with this is that, if the person concerned is minded to abscond, the length of time which elapses between a report one morning and a realisation that there has been no report after the end of the afternoon on the following day is too great. I therefore propose reporting in both morning and evening. The hours I have nominated would be such as to enable Mr Pasini to engage in ordinary daily activities, including employment if he is permitted by law to work. If the arrangements I propose with respect to reporting are not practicable, they can be altered by the Director of Public Prosecutions.Conclusion The order I make will be to admit Mr Pasini to bail on the conditions to which I have referred. It will reserve liberty to the United Mexican States or the Minister for Justice to apply as a matter of urgency for the revocation of bail or the change of any of the conditions in the event of any threatened or impending breach of any condition or any change of circumstances giving rise to a risk that Mr Pasini will not appear on the delivery of judgment by the Full Court. I propose to dismiss the application of Mr Cabal for bail and to reserve liberty to the applicants to apply. Because the application of the applicants has been partially successful, in that Mr Pasini is to be granted bail, it is appropriate that there be no order as to costs.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V700 OF 2000

BETWEEN:	CARLOS CABAL PENICHE FIRST APPELLANT MARCO PASINI BERTRAN SECOND APPELLANT
AND:	UNITED MEXICAN STATES FIRST RESPONDENT LISA HANNAN M SECOND RESPONDENT ATTORNEY-GENERAL (COMMONWEALTH) (Intervening) THIRD RESPONDENT
JUDGE:	GRAY J
DATE OF ORDER:	20 DECEMBER 2000
WHERE MADE:	MELBOURNE