Cabal v United Mexican States (No 3)

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FEDERAL COURT OF AUSTRALIA

Cabal  v United Mexican States (No 3) [2000] FCA 1204

EXTRADITION – review of determination of eligibility for surrender by magistrate – nature of review process – nature of function conferred on magistrate and court – constitutional validity – Extradition Act 1988 – approach to construction – construction by reference to rules of construction for international treaties – ordinary meaning of words and purpose of statute – request for extradition – supporting documents – no inquiry into foreign law – criteria for characterisation of documents issued by requesting country as “warrants” – ordinary meaning – due authentication – whether required for translations accompanying supporting documents under treaty provisions – sealing - whether one seal covers multiple documents – signing and certification – apostilles under Hague Convention – translation – where required – whether partial translation of warrants sufficient – translation of statements of offences, penalties and conduct – reliability – legibility of supporting documents – what constitutes a “copy” – partial illegibility – statement of conduct – sufficiency – more than one offence in a statement – whether specific allegation of conduct to offence required – double criminality – Extradition Objections – purpose of prosecution or punishment for political opinions – purpose – political opinions – assessment on premise that offences committed – substantial grounds – what is necessary to establish – prejudice – on account of political opinions – exclusion of material by magistrate – judicial review of magistrate’s decision – whether subsumed in s 21 review.

CONSTITUTIONAL LAW – separation of powers – review by Court of magistrate’s administrative decision – whether exercise of judicial power – nature of review.

WORDS AND PHRASES “review”, “duly authenticated”, “sign”, “certify”, “seal”, “substantial grounds”, “political opinions”.

Extradition Act 1988 s 3, s 12, s 16(1), s 19, s 21, s 22, s 5, s 6. S 7, s 10(2), s 10(3), s 11, s 46
Extradition (United Mexican States) Regulations 1991 reg 4, reg 5
Judiciary Act 1903 (Cth) s 39B(1A)
Extradition (Foreign States) Act 1966
Federal Court of Australia Act s 35(6)
Criminal Federal Procedure Code Article 25

Bertran v Vanstone (2000) 173 ALR 63
Harris v Attorney-General (Cth) (1994) 52 FCR 386 cited
Wiest v Director of Public Prosecutions (1988) 23 FCR 472 cited
Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 followed, discussed
Zoeller v Federal Republic of Germany (1989) 23 FCR 282 cited, followed
Todhunter v United States of America (1995) 57 FCR 70 cited
Papazoglou v Republic of the Philippines (1997) 74 FCR 108 cited
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 cited
Bannister v See (1982) 42 ALR 78 cited
Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 cited
Builders Licensing Board v Sperway Construction (Syd) Pty Ltd (1976) 135 CLR 616 cited
Phillips v Commonwealth (1964) 110 CLR 347 cited
Aston v Irvine (1955) 92 CLR 353 cited
Woss v Jacobsen (1985) 60 ALR 313 cited
Sheahan v Joye (1995) 57…

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Details
Case
[2000] FCA 1204
Decision Date

CaseChat Overview and Summary

The matter before the court involved Carlos Efrain de Jesus Cabal Peniche (Cabal) and Marco Pasini Bertran (Pasini), who sought judicial review of a magistrate's decision to confirm their eligibility for extradition to Mexico. The applicants argued that they would be prosecuted for their political opinions or suffer prejudice on account of such opinions if surrendered to Mexico. The case was heard by Justice French, who was required to determine whether the applicants' eligibility for extradition should be confirmed, dismissed, or set aside.

The legal issues before the court included whether the magistrate correctly exercised his discretion in determining the applicants' eligibility for extradition and whether the applicants' political opinions would lead to prosecution or prejudice if they were surrendered to Mexico. The court also considered whether the magistrate's decision was in accordance with the relevant extradition laws and whether the applicants' rights under the Australian Constitution were protected.

Justice French confirmed the magistrate's decision that the applicants were eligible for extradition to Mexico. The court found that the magistrate had correctly exercised his discretion and that there was no evidence to suggest that the applicants would be prosecuted for their political opinions or suffer prejudice if surrendered to Mexico. The court also held that the magistrate's decision was in accordance with the relevant extradition laws and that the applicants' rights under the Australian Constitution were protected.

In light of the above, the court dismissed the applicants' application for judicial review and ordered that they pay the second respondent's costs of the application. The Commonwealth of Australia was granted liberty to apply within fourteen days on the question of costs of its intervention on the constitutional point. The decision of the First Respondent made on 17 December 1999 that the applicants are eligible for surrender to the United Mexican States in relation to the offences set out in Annexure 1 and 2 to this order is confirmed. The application for judicial review is dismissed. The applicants are to pay the second respondent's costs of the application. Liberty to the Commonwealth of Australia to apply within fourteen days on the question of costs of its intervention on the constitutional point.

Orders

Orders of the court

1. The decision of the First Respondent made on 17 December 1999 that the First and Second Applicants are eligible for surrender to the United Mexican States in relation to the offences set out in Annexure 1 and 2 to this order is confirmed.

2. The application for judicial review is dismissed.

3 The Applicants are to pay the Second Respondent’s costs of the application.

4. Liberty to the Commonwealth of Australia to apply within fourteen days on the question of costs of its intervention on the Constitutional point.

Background

Background to the litigation

The reasons that follow begin with an outline of the factual background, including the history of events leading up to the issue of warrants in Mexico against Cabal and Pasini and their departure from that jurisdiction. This background draws in part on some material contained in Cabal’s proof which was submitted to the magistrate but not all of which was permitted to be led in evidence. It is referred to as part of Cabal’s own account of his early commercial history. The factual background generally does not canvass the conduct said to constitute the offences. It does, however, provide some context for the contention by Cabal and Pasini that they are being prosecuted for their political opinions or that they may suffer prejudice on account of such opinions if surrendered to Mexico.Factual Background Carlos Efrain de Jesus Cabal Peniche (Cabal) is a citizen of Mexico. He describes himself as an entrepreneur. He was born in 1956 in the south-eastern State of Yucatan at a place called Merida but grew up at Villahermosa in the State of Tabasco. His father was a grocer. Cabal went to primary school in Villahermosa from 1960 to 1967. During that time his father became a significant local businessman. He diversified his store, opened Tabasco’s first supermarket in 1965, a real estate business in 1966, a hotel in Villahermosa in 1967 and in the same year became President of the Chamber of Commerce. Cabal spent his last year of secondary education at a Catholic school in Mexico City. In 1974 he began studying for a degree in business administration in tourism at the Universidad Anahuac. Marco Pasini Bertran (Pasini) was born in Mexico City. His sister, Teresa, is married to Cabal. The Pasini family was involved in construction and steel smelting businesses started by his maternal grandfather who came to Mexico from Spain after the Spanish civil war. Pasini went to University Novo Mondo from which he graduated in engineering in 1989. For a couple of years after graduation he worked for a company involved in the production of pumps. Subsequently he started his own franchise business called “Lasergraphics”. This and similar businesses in which he became involved were successful. In 1976, the year in which Cabal met his wife to be, Teresa Pasini, his father’s business suffered from devaluation of the Mexican currency. While still at University Cabal took over the running of his father’s chicken processing business in Mexico City. When the Mexican economy improved in the course of what he called the “oil boom” years, he expanded and modernised the chicken business. He acquired refrigerated transport trucks to provide fresh produce to Mexico City markets. In 1977 he opened a new warehouse. With that opening he became a major chicken distributor in Mexico. Subsequently, however, with the growth of his business he suffered from what he called a “price war” initiated by a large competitor. At one point his plant was closed by the Department of Health of the State of Guanajuato on the grounds that it was too close to a primary school. He contends that the Department of Health was headed by a member of the family that owned his major competitor. He eventually reopened the plant but had taken on a greater debt burden during its closure. As a result of devaluations of the Mexican currency in 1982 his business debts, which were in US dollars, doubled and then trebled. His father also experienced economic problems at that time. In the event, Cabal says he had to close down his chicken business, his father sold their house in Mexico City and he returned to Tabasco. In 1981 he was charged with issuing a cheque with insufficient funds and was arrested. The charge was dismissed or withdrawn in 1984 following a change in the law. Cross-examination and documentary evidence tendered about this incident before the learned magistrate went to whether there had been a failure by Cabal to comply with conditions of bail while the charge was pending. It was said to go to his credibility. It has at best a marginal significance for these proceedings.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH J
By motion on 10 August 2000 I was invited by counsel for the applicants to consider additional material relating to the entry of the equivalent of a “nolle prosequi” in relation to certain of the offences alleged against Cabal. I expressed my provisional opinion then that the material proffered would take the Court into an area of inquiry prohibited by s 19(5) and in any event an issue which was not put before the Court in the original extradition hearing before the magistrate. On that basis, I confirm my provisional view that the material cannot be considered. CONCLUSION For the preceding reasons, the decision of the learned magistrate will be confirmed, the application for judicial review dismissed and the applicants required to pay the costs of the first respondent. There will be liberty to the Commonwealth to apply for an order for costs in respect of its intervention on the constitutional question. The offences in respect of which eligibility for surrender has been determined are those set out in the annexures to the learned magistrate’s order and they are annexed to the minute of order at the commencement of these reasons. I certify that the preceding two hundredand forty six (246) numbered paragraphs are a true copy of the reasons for judgment of his Honour Justice French:Associate: Dated:

Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

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