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 citedCARLOS CABAL PENICHE & MARCO PASINI BERTRAN v UNITED MEXICAN STATES & ANOR
V 728 of 1999GOLDBERG J
MELBOURNE
4 JANUARY 2000
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
No V 728 of 1999
BETWEEN:
CARLOS CABAL PENICHE
First ApplicantMARCO PASINI BERTRAN
Second ApplicantAND:
UNITED MEXICAN STATES
First RespondentLISA HANNAN M
Second RespondentJUDGE:
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 ApplicantMARCO PASINI BERTRAN
Second ApplicantAND:
UNITED MEXICAN STATES
First RespondentLISA HANNAN M
Second Respondent
JUDGE:
GOLDBERG J
DATE:
4 JANUARY 2000
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Introduction
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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- Case
- [2000] FCA 7
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Decision
Reasons for decision
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.