Cabal v United Mexican States

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FEDERAL COURT OF AUSTRALIA

Cabal v United Mexican States [2000] FCA 7

EXTRADITION – release from custody pending hearing – meaning of “special circumstances’ whether period of detention is a special circumstance – conditions of detention and transportation as special circumstances – arbitrary and discriminatory treatment during transportation.

WORDS & PHRASES – “special circumstances”

Extradition Act 1988 (Cth): s 21(6)

Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 considered
Wu v Attorney‑General of the Commonwealth (1997) 79 FCR 303 cited
Bertran v Minister for Justice (1999) 165 ALR 155 considered
Holt v Hogan (No 1) (1993) 44 FCR 572 cited
Kingdom of Thailand v Saxena (1998) 129 CCC (3d) 518 cited

CARLOS CABAL PENICHE & MARCO PASINI BERTRAN v UNITED MEXICAN STATES & ANOR
V 728 of 1999

GOLDBERG J
MELBOURNE
4 JANUARY 2000


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

No V 728 of 1999

BETWEEN:

CARLOS CABAL PENICHE
First Applicant

MARCO PASINI BERTRAN
Second Applicant

AND:

UNITED MEXICAN STATES
First Respondent

LISA HANNAN M
Second Respondent

JUDGE:

GOLDBERG J

DATE OF ORDER:

4 JANUARY 2000

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application by each of the first applicant and the second applicant by way of interim relief, filed on 17 December 1999, for an order pursuant to s 21(6)(f)(iv) of the Extradition Act 1988 (Cth) that they be released on bail until the review sought by their application herein has been conducted is dismissed.

2.Liberty is reserved to the applicants to apply further for release on bail consistently with the reasons for this judgment.

3.The issue of the costs of the hearing be reserved for further consideration.

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

No V 728 of 1999

BETWEEN:

CARLOS CABAL PENICHE
First Applicant

MARCO PASINI BERTRAN
Second Applicant

AND:

UNITED MEXICAN STATES
First Respondent

LISA HANNAN M
Second Respondent

JUDGE:

GOLDBERG J

DATE:

4 JANUARY 2000

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

Introduction

  1. On 17 December 1999 Ms L A Hannan, a Magistrate in Victoria, determined pursuant to s 19(9) of the Extradition Act 1988 (Cth) (“the Act”) that the first applicant, Carlos Cabal Peniche (“Mr Cabal”), was a person eligible for surrender to the first respondent United Mexican States (“Mexico”) in relation to the extradition offences of:

    ·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);

    ·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 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…

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Details
Case
[2000] FCA 7
Decision Date

CaseChat Overview and Summary

The case of Cabal v United Mexican States involved two Mexican citizens, Mr. Cabal and Mr. Pasini, who sought bail pending extradition proceedings to Mexico on various criminal charges. The applicants had left Mexico in 1994 and had been residing in several countries before arriving in Australia under assumed identities. The court had to consider whether the applicants met the criteria for special circumstances that would warrant their release on bail. The applicants argued that the conditions of their detention, the impact on their families, and the possibility of their psychological deterioration constituted special circumstances warranting bail. The court assessed the arguments and evidence presented regarding the applicants' detention conditions, family ties, and psychological states. It considered whether the cumulative impact of these factors amounted to special circumstances that would justify their release on bail.

The primary legal issue before the court was whether the applicants' circumstances constituted special circumstances under the Extradition Act 1988 (Cth) that warranted their release on bail. The court had to evaluate the specific and cumulative impact of the applicants' detention conditions, the effects on their families, and their psychological states. The court also considered the relevance of the evidence presented by the applicants' character witnesses and the proposed home monitoring system. The court's reasoning involved a detailed examination of the evidence and submissions to determine whether the applicants' situations were sufficiently extraordinary to warrant bail. The court acknowledged the difficulties faced by the applicants but found that their circumstances, while challenging, did not reach the level of special circumstances required for bail under the Act.

The court concluded that, while the applicants' conditions and the effects on their families were significant, they did not constitute special circumstances that warranted their release on bail. The court noted that the applicants' psychological states, although affected, were not out of the ordinary for individuals in their situation. The court also highlighted that the evidence did not demonstrate an immediate risk of severe psychological harm that would necessitate bail. Consequently, the court dismissed the applications for bail but reserved liberty for the applicants to reapply if their conditions deteriorated or if there were further incidents of discriminatory treatment. The court also reserved the issue of costs for further consideration.

Orders

Orders of the court

1. The application by each of the first applicant and the second applicant by way of interim relief, filed on 17 December 1999, for an order pursuant to s 21(6)(f)(iv) of the Extradition Act 1988 (Cth) that they be released on bail until the review sought by their application herein has been conducted is dismissed.

2. Liberty is reserved to the applicants to apply further for release on bail consistently with the reasons for this judgment.

3. The issue of the costs of the hearing be reserved for further consideration.

Background

Background to the litigation

It is important, in my view, to take an overall view of the circumstances which attend upon the applicants’ applications for bail when considering whether there are relevant circumstances. Individual or specific circumstances may not, of themselves, be special in any relevant way but an accumulation of non‑special circumstances may well build up into an overall special circumstance or special circumstances. Further there may be an inter‑relationship between different circumstances which will heighten the significance of each circumstance.Background to extradition proceedings Both applicants are citizens of Mexico. It is not necessary to rehearse the events and circumstances which led up to August 1994 but at the end of that month both applicants left Mexico and have not returned since. Mr Pasini is the brother‑in‑law of Mr Cabal who married Mr Pasini’s sister. Mr Cabal was the owner of the Banco Union and another bank in Mexico. Between August 1994 and February 1997 the applicants lived in a number of countries such as France, Spain, Italy and the Dominican Republic. The applicants and members of their families were issued with Dominican Republic passports under assumed names and they travelled to Australia under these passports. Between 31 August 1994 and 15 May 1998, according to the Magistrate, thirteen warrants of arrest were issued by Mexican judges for the arrest of Mr Cabal. He was arrested on 11 November 1998 in Melbourne pursuant to a provisional warrant issued on 10 November 1998 under s 12 of the Act and was remanded in custody. By diplomatic notice dated 31 December 1998 Mexico requested his extradition in respect of extradition offences contrary to the Law of Credit Institutions of Mexico (twenty‑three offences) and the Federal Criminal Code in Matters of Common Law for the Federal District and in Federal Matters for the Republic of Mexico (three offences). The documents relied upon by Mexico to satisfy the requirements of “supporting documents” for the purposes of s 19 of the Act were received by the Commonwealth of Australia on 6 January 1999 and on 7 January 1999 the Minister for Justice and Customs signed a notice pursuant to s 16(1) of the Act. Between 13 April 1998 and 7 January 1999 four additional warrants of arrest were issued by Mexican judges for the arrest of Mr Cabal. By diplomatic notice dated 11 February 1999 Mexico requested Mr Cabal’s extradition in relation to these additional four warrants. On 19 February 1999 Mr Cabal was brought before the Magistrate pursuant to a second provisional arrest warrant which was issued on 16 February 1999 and on 30 March 1999 the Minister for Justice and Customs signed a notice pursuant to s 16(1) of the Act. On 18 January 1996 and 29 August 1996 two warrants for the arrest of Mr Pasini were issued by Mexican judges. On 11 November 1998 Mr Pasini was taken into immigration detention and on 27 November 1998 he was arrested in Melbourne pursuant to a provisional warrant of arrest issued on 26 November 1998. He was remanded in custody. By diplomatic notice dated 20 January 1999 Mexico requested Mr Pasini’s extradition in respect of extradition offences contrary to the Law of Credit Institutions of Mexico in connection with the Federal Criminal Code in Local Matters for the Federal District and in Federal Matters for the Republic of Mexico (two offences) and the Federal Criminal Code in Local Matters for the Federal District and in Federal Matters for the Republic of Mexico (one offence). On 21 January 1999 the Minister for Justice and Customs signed a notice pursuant to s 16(1) of the Act in relation to Mr Pasini.

Evidence

Evidence Before The Court

Although I am not satisfied on the material presently before me that the conditions in which and under which the applicants are kept and transported from prison are such special circumstances as would warrant the release of the applicants on bail, I propose to reserve liberty to the applicants to renew their application for bail if the conditions in which they are held in Sirius East deteriorate or if the manner in which they are transported to and from Port Phillip Prison continue to occur in the manner which Mr Cabal and Mr Pasini have described. In particular I am concerned if the indiscriminate and arbitrary incidents to which I have referred are repeated.Character evidence A considerable body of character evidence has been led in relation to the applicants and their families. I refer to the evidence of Margaret Davies, John Fox, Brian Müller, Tibor Schlenka, Kenneth Watson and Michael Tiernan, all of whom vouch for the character and family ties of the applicants and their families. This material is relied upon as showing the ties that the Cabal family have to the Australian community.Home security system The applicants have submitted that if I am satisfied that special circumstances exist which would warrant their release on bail I should, as an exercise of discretion, grant bail on appropriate terms and conditions such as the provision of a security bond, daily reporting, place of residence, a requirement not to leave Victoria or to attend any international point of departure and the surrender of any passports and not applying for any other passport. These terms and conditions are orthodox. What is somewhat unorthodox is a range of security requirements which it is proposed could be imposed on the applicants at the cost of Mr Cabal if I was to consider such requirements as appropriate. Mr Cabal asked a private organisation Aussec Consultancy Group Pty Ltd (“Aussec”) to develop a proposal for a home monitoring system which could be put into place to monitor Mr Cabal at his home if he was released from prison on bail. The proposal involves:·Mr Cabal being confined to his home, other than for the purposes of court attendances;·The home being monitored visually and by electronic means·The setting up of an on‑site control room in the garage and an off‑site control room;·An agent employed by Aussec being located at the on‑site control room all the time;·Visitors to the home being restricted and screened.Mr Cabal would at all times wear a transmitting bracelet which would be pre‑set so that if Mr Cabal moved outside his home the bracelet would set off an alarm. The bracelet would send a continuous signal to the on‑site and the off‑site control rooms. Any attempt to remove the bracelet would set off the alarm. The house would be surrounded by twenty‑four sets of photo electric beams which send an alarm when broken. The agent on duty would control the beams. Video cameras would cover the whole property. Police could have access to the monitoring of Mr Cabal’s movements and to the control rooms. Responses to alarms could occur by Aussec notifying the police or by installing a panel which registers the alarm at a police station. Aussec has also proposed a comprehensive transportation system to convey Mr Cabal to and from court.

Decision

Reasons for decision

GOLDBERG J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GOLDBERG J

If the discriminatory manner in which the transportation and shackling of the applicants has occurred continues and there are further incidents of the types referred to in pars 66 and 67, as has occurred hitherto, I would entertain a further application for bail.Effects of incarceration of applicants Mexico submitted that there is nothing in the material which demonstrated that either the applicants or their families were suffering physically, psychologically or in any other way more than one might reasonably expect persons detained on remand to suffer within a custodial setting. Mexico submitted further that the evidence, far from demonstrating that there had been a breakdown in the family unit in terms of causing dysfunction within the family, appeared to demonstrate that after the initial shock of the deprivation of their father, the head of the family, the children had resumed as best they could a wide range of scholastic, social and personal activities and had performed quite well, albeit with anxiety about their father. Mexico submitted that any person who has a relative detained within a remand setting must suffer anxiety and depression if they had any sort of feelings as a human being. Deterioration of one’s physical and mental condition is relative and each case must be considered by reference to its own particular situation and on its own particular merits. In Kainhoffer v Director of Public Prosecutions (1993) 48 FCR 9, Spender J found special circumstances in the totality of the circumstances including the medical evidence before him. That medical evidence involved a diagnosis that the applicant had a psychiatric disorder and her daughter, almost ten years old, had developed a psychotic illness and needed her mother as a medical emergency and necessity. In Timar v Republic of Hungary [1999] FCA 1559, the Full Court found special circumstances in the applicant suffering extremely high blood pressure, which would be compounded by incarceration and which created an increased risk of a seriously debilitating or fatal condition such as a stroke or heart attack. I refer to these authorities not as a bench mark or as criteria by which to judge or determine the present applications but rather as examples of how physical and mental conditions may constitute special circumstances. At the present time, notwithstanding the psychological assessments and opinions referred to in Part I of the confidential appendix to these reasons, I am not satisfied that the physical, psychological, mental or emotional situations of the applicants or various members of their families are such as to constitute special circumstances either singly or cumulatively with the other circumstances relied upon. I do not consider that the psychological state of any of the applicants or the members of their families have reached such a stage that they should be considered as out of the ordinary having regard to the circumstances in which the applicants and their families find themselves as a result of the arrest and incarceration of the applicants. As Mr Galbally rightly pointed out I should not wait until the damage is done before deciding or determining that the psychological condition of any of the applicants or the members of their families constitutes special circumstances. Nevertheless, although each of the applicants is anxious, depressed and emotionally affected detrimentally by the conditions and circumstances in which they find themselves I would expect that a measure of such a condition is ordinarily to be found in persons incarcerated in prison.