Cabal v United Mexican States (No 2) - [2000] FCA 295

FEDERAL COURT OF AUSTRALIA
Cabal v United Mexican States (No 2) [2000] FCA 295
EXTRADITION – release on bail pending review – second bail application – whether s 21(6) of the Extradition Act 1988 (Cth) precludes successive bail applications – comparison with s 15(3) of the Extradition Act 1988 (Cth) – existence of the right at common law to make successive bail applications – whether fresh circumstances required for successive bail applications.
Extradition Act 1988 (Cth): s 15(3), s 21(6)
In re Kray [1965] 1 Ch 736 cited
Eshugbayi Eleko v Officer Administering the Government of Nigeria [1928] AC 459 cited
In re Hastings (No 3) [1959] 1 Ch 368 cited
In re Hastings (No 2) [1959] 1 QB 358 cited
The State (Dowling) v Kingston (No 2) [1937] IR 699 cited
Regina v Fraser and Jacobs (1892) 8 WN (NSW) 144 cited
R v Malone (1903) St R Qd 140 cited
Director of Public Prosecutions v Kanfouche [1992] 1 VR 141 cited
Re Edwards (1988) 92 FLR 96 cited
Ratten v The Queen (1974) 131 CLR 510 cited
Re Knowles [1984] VR 751 cited
CARLOS CABAL PENICHE & MARCO PASINI BERTRAN v UNITED MEXICAN STATES & ANOR (No 2)
V 728 of 1999
GOLDBERG J
MELBOURNE
15 MARCH 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:

15 MARCH 2000

PLACE:

MELBOURNE

RULING
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 (“Mr Cabal”) and the second applicant (“Mr Pasini”) were persons eligible for surrender to the first respondent (“Mexico”) in relation to a number of extradition offences.
The Magistrate, pursuant to s 19(9) of the Act, by warrant, ordered that the applicants be committed to the Melbourne Assessment Prison or Port Phillip Prison to await, in relation to the offences the subject of her determination, surrender under a surrender warrant or release pursuant to an order under s 22(5) of the Act.
On the same day as the Magistrate issued the warrants, the applicants filed an application in the Federal Court pursuant to s 21 of the Act for a review of the Magistrate’s decision to commit the applicants to prison. In that application the applicants sought by way of interim relief orders pursuant to s 21(6)(f)(iv) of the Act that they be released on bail pending the review of the Magistrate’s decision. I heard that application for interim relief on 22 and 23 December 1999. On 4 January 2000 I published my reasons for dismissing the application by each of the applicants that they be released on bail until the review had been conducted. I also ordered that liberty be reserved to the applicants to apply further for release on bail consistently with my…

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 295
Decision Date: 15 MARCH 2000

CaseChat Overview and Summary

The Federal Court of Australia was asked to decide whether the applicants, Mr Cabal and Mr Pasini, could make another bail application after their first one was refused. The court looked at the Extradition Act 1988 (Cth) and compared two sections, s 15(3) and s 21(6)(f)(iv). Section 15(3) limited the number of bail applications to one, while s 21(6)(f)(iv) did not have such a restriction. The applicants argued that they should be allowed to make another bail application, and the court agreed, saying that there was no rule preventing them from doing so. However, the court also said that for a second bail application to be successful, there must be new and special circumstances that were not known or considered during the first application. The court ruled that some of the evidence the applicants wanted to use in their second bail application was not allowed because it was either already known or not new enough. The court decided that the applicants could make another bail application, but they had to show that there were new and special reasons for it.

Orders