Cabal v United Mexican States (No 5) - [2000] FCA 525

FEDERAL COURT OF AUSTRALIA
Cabal v United Mexican States (No 5) [2000] FCA 525
EXTRADITION – release from custody pending hearing – second application for bail – application confined to matters after first bail application – special circumstances – conditions of detention – alleged restrictions on use of prison telephone – transportation to and from prison – alleged restrictions on number and type of professional and personal prison visits – concerns for the health and safety of applicants in prison – nature of other inmates in prison unit – psychological health of applicants and their families.
Extradition Act 1988 (Cth): s 21(6), s 53
Holt v Hogan (No 1) 44 FCR 572 cited
CARLOS CABAL PENICHE & MARCO PASINI BERTRAN v UNITED MEXICAN STATES & ANOR (No 5)
V 728 of 1999
GOLDBERG J
MELBOURNE
20 APRIL 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:

20 APRIL 2000

PLACE:

MELBOURNE

THE COURT ORDERS THAT:
1.The application by each of the first applicant and the second applicant filed on 9 February 2000 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 filed 17 December 1999 has been conducted is dismissed.

2.The costs of the application 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:

20 APRIL 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 (“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…

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 525
Decision Date: 20 APRIL 2000

CaseChat Overview and Summary

The Federal Court presided over the case of Cabal v United Mexican States (No 5), where the applicants, Mrs Cabal and Mr Cabal, sought bail pending the review of their extradition to Mexico. The applicants argued that the conditions of their detention and the duration of their incarceration constituted special circumstances warranting their release on bail under section 21(6)(f)(iv) of the Extradition Act 1988 (Cth). The court had to determine whether the circumstances presented by the applicants were indeed special and warranted a departure from the statutory presumption against bail for extradition cases.

In assessing the applicants' arguments, the court carefully considered the conditions under which the applicants were detained, the length of time they had spent in custody, and the risk of absconding. The court noted that while it sympathised with the applicants' situation, the statutory presumption against bail applied unless special circumstances were shown. The court found that the conditions of detention, while perhaps harsh, did not diverge significantly from what is typically endured by individuals awaiting extradition. Additionally, the extended period of incarceration, though notable, did not, in the court's view, reach a level that would warrant bail under the Act. The risk of absconding, previously assessed as real, remained unchanged and, combined with the applicants' history of international travel and use of assumed identities, further dissuaded the court from granting bail. Consequently, the court held that the applicants had not demonstrated special circumstances sufficient to rebut the presumption against bail.

The court ultimately dismissed the applicants' motion for bail, reaffirming its earlier stance that the risk of the applicants absconding outweighed any considerations that might favour their release. The court did, however, reserve the applicants' liberty to reapply for bail if conditions materially changed or if new evidence arose that could impact the assessment of special circumstances.

Orders

Orders of the court

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Background

Background to the litigation

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 for bail by each of the applicants: Cabal v United Mexican States [2000] FCA 7. I also ordered that liberty be reserved to the applicants to apply further for release on bail consistently with my reasons for judgment. In par 112 of my reasons I said:“As I have observed earlier in these reasons I am reserving liberty to the applicants to renew their application for bail if the conditions under which they are kept in Port Phillip Prison deteriorate or if the conditions under which they are transported and detained while outside the prison, whether in shackles or otherwise, are such as to warrant further consideration.”Background On 9 February 2000 the applicants filed a notice of motion for orders pursuant to s 21(6)(f)(iv) of the Act that they be released on bail until the review of the Magistrate’s decision has been determined. The applicants filed and served a number of affidavits in support of that motion which related, inter alia, to issues other than those in respect of which I had reserved liberty to apply. On 15 March 2000 I ruled (Cabal v United Mexican States (No 2) [2000] FCA 295). that I would not allow into evidence, for the purpose of the application for bail, affidavits which were either sworn, or prepared for the purposes of swearing, prior to the conclusion of the earlier bail hearing or evidence relating to: ·The applicants’ personal and business circumstances and activities prior to the earlier bail hearing;·Refutation of Mr Kelly’s evidence that Sirius East is a safe environment and that the applicants were transferred there for their own protection;·Refutation of the evidence that the decision to place the applicants on the high security transport list was based on the reason that Mr Cabal had offered a prisoner money to assist an escape;·The applicants’ state of mind when they determined to remain outside Mexico and the reasons why they sought to avoid arrest by the Mexican authorities;·The contention that the applicants’ legal and political status in Mexico is now significantly different than was the position in 1994, which position would be undermined if they chose to abscond;·Australia’s obligations under the International Covenant on Civil and Political Rights to persons incarcerated for the purpose of extradition proceedings;·The conditions under which the applicants were kept in custody prior to the earlier bail hearing;·The submission that Mr Cabal was not at relevant times a director or employee of Banco Union.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GOLDBERG J

Although I can sympathise with the feelings Mrs Cabal and Mr Cabal’s children must have as a result of Mr Cabal’s forced detention, that is an inevitable result of the extradition process required by the Act and the detention of Mr Cabal unless “special circumstances” can be shown. I am not satisfied that the condition of Mr Cabal and the members of his family to which Mr Cummins refers is such as to constitute relevant special circumstances. Conclusion For the reasons to which I have referred I am not satisfied that the matters and circumstances which have occurred since 23 December 1999 relied upon by the applicants are special circumstances for the purposes of s 21(6)(f)(iv) of the Act. Where I have earlier referred to a “relevant special circumstance” I have referred to a special circumstance which comes within s 21(6)(f)(iv) of the Act and therefore justifies the release of either of the applicants on bail. I have considered the individual matters relied upon by the applicants. I have also considered whether any combination or cumulative consideration of these matters, when aggregated, amounts to such special circumstances. I have reached the conclusion that they do not. I am not satisfied that all the matters relied upon by the applicants when considered together are substantially different from the circumstances which ordinarily apply where a person is in custody pending extradition proceedings and which by their nature warrant a more favourable view in relation to the grant of bail. Although the applicants have now been held in custody for sixteen months, that period of incarceration must be understood in the light of what has occurred since the applicants were first apprehended. In this respect I would repeat and refer again to what I said in pars 79 and 80 of my reasons for judgment on 4 January 2000. Notwithstanding that a further three and a half months have elapsed since the last bail application, I do not consider that, in the circumstances which have occurred, broad community standards warrant the conclusion that the applicants’ length of time in custody is such a special circumstance as to warrant their release on bail. Even if I had reached the conclusion that any of the matters and circumstances relied upon by the applicants did constitute special circumstances for the purposes of s 21(6)(f)(iv) of the Act, I would not have exercised my discretion in favour of granting bail having regard to the conclusion to which I referred in my reasons for judgment on 4 January 2000, that the risk of the applicants absconding on bail is a real risk having regard to the circumstances to which I had referred. In par 108 of those reasons I said:“If I had found that there was special circumstances warranting or justifying the release of the applicants on bail I would not, as an exercise of discretion, have been disposed to have granted bail having regard to the ability and propensity of each of the applicants to move between different countries between 1994 and 1998 and their ability and propensity to obtain travel documentation and identification cards in assumed names. I consider that the risk of them absconding on bail is a real risk having regard to these circumstances. The risk is heightened by the fact that a Magistrate has now determined that they are eligible for surrender to Mexico. I am not satisfied that the statutory presumption against bail is rebutted by relevant special circumstances or matters which warrant me exercising my discretion to grant bail. In my opinion, the applicants now have even greater incentive to try and escape the risk of surrender to face trial in Mexico.”I am still of that view. I do not consider that any of the circumstances relied upon by the applicants, taken singly or cumulatively, are such as to outweigh that risk and tip the balance in favour of the grant of bail.

Ratio Decidendi

Legal Principle Established

Established by: GOLDBERG J

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IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	No V 728 of 1999

JUDGE:	GOLDBERG J
DATE OF ORDER:	20 APRIL 2000
PLACE:	MELBOURNE

JUDGE:	GOLDBERG J
DATE:	20 APRIL 2000
PLACE:	MELBOURNE