Cabal v United Mexican States (No 1)

[2000] FCA 433

FEDERAL COURT OF AUSTRALIA

Cabal v United Mexican States (No 1) [2000] FCA 433

EXTRADITION  - extradition proceedings before magistrate – statement of conduct relating to extradition offence – sufficiency of statement – whether challengeable on basis that conduct does not constitute offence under foreign law.

Extradition Act 1988 s 21, s 19(3)(c)(ii), s 19(3)(c)((i), s 19(5)

Zoeller v Federal Republic of Germany (1989) 23 FCR 282 followed
United States of America v Holt (1994) 49 FCR 501 cited
Unkel v Director of Public Prosecutions (1990) 95 ALR 44 cited

CARLOS CABAL PENICHE and MARCO PASINI BERTRAN v UNITED MEXICAN STATES, LISA HANNAN, COMMONWEALTH OF AUSTRALIA
V 728 of 1999

FRENCH J
5 APRIL 2000
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA  DISTRICT REGISTRY	V 728 OF 1999

BETWEEN:

CARLOS CABAL PENICHE
First Applicant

MARCO PASINI BERTRAN
Second Applicant

AND:

UNITED MEXICAN STATES
First Respondent

LISA HANNAN
Second Respondent

COMMONWEALTH OF AUSTRALIA
Intervening

JUDGE:	FRENCH J
DATE:	5 APRIL 2000
PLACE:	MELBOURNE

REASONS FOR RULING ON PROPOSED CHALLENGE
TO SUFFICIENCY OF STATEMENTS OF CONDUCT
RELATING TO EXTRADITION OFFENCES

1. The application presently before the Court claims relief on various bases, including review under s 21 of the Extradition Act 1988, of a magistrate’s decision determining that the applicants are eligible for surrender to Mexico and ordering, by warrant, their commitment to prison to await surrender.  One of the grounds upon which review of the magistrate’s order is sought is set out in par 39 of the statement of claim:

   “The s 19(3)(c)(ii) statements do not set out ‘conduct constituting the offence’ as required by the Act.

   Particulars

   Particulars are set out at annexure C (comprising Attachments B2a, B2a Part 2 and B2a Part 3 of the applicants’ final written submissions to Ms Hannan).”

   The question is whether this is a viable ground for review under s 21.

2. The offences said to have been committed by the applicants involve contraventions of various articles of  the Mexican law relating to credit institutions and the Tax Code.  In the case of Mr Pasini, reliance is placed upon accessorial liability provisions of the Criminal Code.  The kinds of deficiencies alleged in the statements of conduct are set out at Annexure C to the statement of claim as follows:

   “(a)Absences of any allegation going to one or more elements of the corresponding Mexican offence;

   (b)      Inconsistent allegations in respect of certain of those elements;

   (c)Allegations that are mere statements of conclusion, not allegations as to acts or omission.”

   Their effect is said to be that the statements are not statements setting out the conduct constituting the offences within the meaning of s 19(3)(c)(ii) of the Extradition Act.  In other words, it is said, they do not constitute statements setting out the acts or omissions by virtue of which the offence has, or is alleged to have been, committed, within the  meaning of s 10(2).

3. Counsel for the applicants has commenced submissions in relation to this aspect of the case.  As to the elements of the offence under Mexican law, he relies upon:

   (a)       evidence as to Mexican law given before the magistrate;
   (b)       inspection of the translated text of the Mexican law.

   Counsel for the United Mexican States submits at the threshold that these submissions cannot be entertained by the Court and has referred to decisions of the Full Court in Zoeller v Federal Republic of Germany (1989) 23 FCR 282 and United States of America v Holt (1994) 49 FCR 501.

4. Turning first to the provisions of s 19 of the Act, it is a condition of the magistrate’s power to determine that a person is eligible for surrender in relation to an extradition offence for which surrender is sought that:

   “19(2)(a)  the supporting documents in relation to the offence have been produced to the magistrate.”

   The term “supporting documents” is defined in s 19(3) and, for present purposes, comprises duly authenticated warrants (s 19(3)(a) and, under subs 19(3)(c);

   “(i)a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and

   (ii)a duly authenticated statement in writing setting out the conduct constituting the offence.”

   It is the last mentioned condition imposed by s 19(3)(c)(ii) that is in issue for the purposes of this ruling. That condition must be read in the light of s 19(5) which provides, in relation to the proceedings before the magistrate, that:

   “(5)     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.”

5. Although reliance is placed upon evidence to determine the relevant elements of the offences charged under Mexican law, this does not go, according to the submission of counsel for the applicants, to the allegation that they have engaged in conduct constituting the relevant extradition offences.  Rather, it is said that the submissions go to the question whether the statements produced to the magistrate answer the description of statements “setting out the conduct constituting the offence”.  This is a question, it is said, proper for consideration by the magistrate and therefore by this Court.  So, to take an extreme example, a statement alleging jaywalking could not be said to be a statement setting out conduct constituting the offence of murder if that were the extraditable offence. 

6. There is here a constructional choice to be made about subs 19(5). Is the prohibition imposed by that subsection upon the functions of the magistrate limited to evidence which would contradict allegations that the person had engaged in the conduct alleged in the relevant statement? Plainly the prohibition encompasses that construction. The wider construction, however, would prevent contradiction of the proposition that the person has “engaged in conduct constituting an extraditable offence” and on that basis prevent any challenge to the question whether the conduct of the person did amount to a breach of the relevant law of the extraditing country. In my opinion the latter construction is intended. It provides a more natural reading of s 19(5) treating the concatenation “conduct constituting an extradition offence” as a unity. It also avoids the operational difficulties of the magistrate being required to determine disputed questions of foreign law properly resolved in the courts of the requesting country.

7. Section 19(3)(c)(i) requires an authenticated statement in writing setting out a description of the offence and the penalty applicable in respect of it. Ordinarily that would be expected to contain a reference to the relevant provisions of the statute law said to have been breached. It does not of itself, however, require that the statement referred to in subs 19(3)(c)(ii) on the face of it, demonstrate conduct answering each element of the relevant offence.

8. The basis upon which counsel for the applicants seeks to advance their case relating to the statement of conduct, namely that it is not a statement of the kind contemplated by s 19(3)(c)(ii), would effectively defeat the operation of s 19(5) on the construction, which in my opinion, it properly bears.

9. That is not to say, of course, that the magistrate could not examine and this Court could not examine, upon review, the extent to which the conduct alleged in the statements produced under s 19(3)(c)(ii) would answer the double criminality requirement of s 19(2)(c) – namely, that if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken part in Australia where the proceedings are being conducted and at the time at which the relevant request was received, that conduct or equivalent conduct would have constituted an extradition offence in relation to that part of Australia. That would of course be an answer to the extreme case posited by counsel for the applicants of jaywalking said to amount to murder having regard to the definition of “extradition offence” in s 5.

10. I am fortified in this conclusion by the observation of the Full Court in Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 299 where it was said:

    “Following the enactment of the 1988 Act, but subject to the terms of particular extradition treaties, it was no longer necessary for there to be a proceeding along the lines of a committal to determine on facts then adduced whether there was a prima facie case.  Subject to the provisions of s 11, therefore, the clear legislative scheme appearing from s 19 is that the magistrate is charged with the task of determining whether in his opinion the double criminality requirement of s 19(2)(9c) is satisfied, and to put it briefly and perhaps loosely, that there is no extradition objection as defined in s 7 (see s 19(2)(d)).  In so doing the person to whom the proceedings relate is not entitled to adduce, and the magistrate may not receive, evidence in support of a submission that the person did not do that which is alleged of him. (s 19(7)).  Thus the magistrate is confined to the material adduced on behalf of the country requesting extradition.  Practically that means that in determining whether the alleged conduct of the person constituted an offence in Australia regard will be had only to the duly authenticated statement in writing setting out the alleged conduct constituting the offence.  Matters tending to go to the innocence of the alleged offender are irrelevant.”

    That passage, of course, of itself does not directly address the present question.  However their Honours then went on:

    “But it does not follow from the adoption of this legislative scheme either that the warrants in the present case are invalid because they contain a statement of facts which goes beyond the facts necessarily constituting the offence in Germany or that the magistrate may have regard only to those facts which are absolutely necessary ingredients of the foreign crime.  The magistrate is no expert in foreign law.  He is not required to determine what the facts are that are the minimum facts necessary to constitute the foreign crime.  That there has been a foreign crime committed is for the purpose of the proceedings before the magistrate proved by the warrant duly authenticated.  What the facts relevant to that crime are is proved by the duly authenticated statement under s 19(3)(c)(ii).  That the offence is an extraditable offence is proved by the s 19(3)(c)(i) document.  All the magistrate is required to do is, by reference to Australian law, to determine whether the conduct referred to in the s 19(3)(c)(ii) statement is an offence under the law of a State or Territory of Australia or Commonwealth law.”

    That passage sets out what appears to be an exhaustive statement of the functions of the magistrate.

11. In relation to the application of the German Law of Limitations and evidence which the magistrate had refused to admit in relation to that, the Court said at 303:

    “In our opinion it is clear from the language of the Act itself that the proceedings before the magistrate are not intended to raise the issue whether the conduct complained of was an offence under the law of the country requesting extradition.  That this is so appears not only from the objects of the legislation in s 4 but also from a perusal of the Explanatory Memorandum and the Second Reading Speech of the Attorney General on 28 October 1987 (Hansard (1987) No 15, p 1615 ff)

12. There it was said, as recited by the Court:

    “Subject to s 11 which preserves any particular treaty reservation it is clear that the issues before the magistrate are very limited.  The ultimate issue to be decided is whether the person in respect of whom the extradition request is made is “eligible for surrender”.  To determine that issue the magistrate will be required to determine the following constituent matters:

    (1)      Is the offence one which qualifies as an extradition offence?
               (see s 5)

    (2)      Is the requesting country an extradition country? (see s 5)

    (3)Are the documents produced to him as “supporting documents” under s 19(2)(a) within the definition of that expression in s 19(3) having regard to the following questions:

    (a)       is there a duly authenticated warrant of the kind described
      by s 19(3);
               (b)       if the extradition is in respect of a conviction, are there duly
      authenticated documents which provide evidence of the matters
      in s 19(3)(b);
               (c)       is there a duly authenticated statement in writing setting out
      the matters in s 19(3)(c)(i);
               (d)       is there a duly authenticated statement in writing setting out
      the conduct constituting the offence (see s 19(3)(c)(ii))?”

13. In United States of America v Holt (1994) 49 FCR 501 the Full Court (Foster, Heerey and Whitlam JJ) set out a number of propositions as to the construction of the Act including the proposition at 504 that:

    “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.”

    In so doing they cited Zoeller v Federal Republic of Germany (supra) and Unkel v Director of Public Prosecutions (1990) 95 ALR 44.

14. For the reasons I have outlined above, and on the authority of the two Full Court decisions to which I have been referred, in my opinion it is not open to the applicants to pursue the contentions advanced in par 39 of the statement of claim and annexure C incorporated by reference in the particulars to that paragraph.  I will not therefore entertain

    further submissions in relation to those matters.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:             5 April 2000

Counsel for the First and Second Applicants:	Mr JWK Burnside QC with Mr J Manetta and Mr E Aughterson
Solicitor for the First and Second Applicants:	Phillips Fox
Counsel for the First  Respondent:	Mr GAA Nettle QC with Mr G Gilbert and Ms MM Gordon
Solicitor for the First Respondent:	Commonwealth Director of Public Prosecutions
Date of Hearing:	5 April 2000
Date of Ruling:	5 April 2000