Pasini v United Mexican States

Link copied
Case Copied 60 min read

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW AND KIRBY JJ

MARCO PASINI (BERTRAN)  APPLICANT

AND

UNITED MEXICAN STATES & ORS  RESPONDENTS

Pasini v United Mexican States [2002] HCA 3
Date of order:  7 September 2001
Date of publication of reasons:  14 February 2002
M39/2001

ORDER

1.   Application for special leave to appeal refused.

2.   The applicant to pay the costs of the first respondent.

On appeal from the Federal Court of Australia

Representation:

G Griffith QC with G R Kennett for the applicant (instructed by Fernandez Canda Gerkens)

G A A Nettle QC with M M Gordon for the first respondent (instructed by Director of Public Prosecutions (Commonwealth))

No appearance for the second respondent

D M J Bennett QC, Solicitor-General of the Commonwealth with H C Burmester QC and M K Moshinsky for the third respondent (instructed by Australian Government Solicitor)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

  1. GLEESON CJ, GAUDRON, McHUGH AND GUMMOW JJ.   On 7 September 2001 the Court dismissed this application for special leave to appeal and ordered that the applicant pay the costs of the first respondent.  What follows are our reasons for joining in those orders.

  2. The first respondent, the United Mexican States ("Mexico"), is an "extradition country" to which Pt II (ss 12‑27) of the Extradition Act 1988 (Cth) ("the Act") applies[1].  Part II is headed "EXTRADITION FROM AUSTRALIA TO EXTRADITION COUNTRIES".  The applicant, Mr Pasini, is the brother-in-law of Mr Cabal.  Mexico sought their extradition and lengthy litigation ensued.  Mr Cabal has since returned to Mexico but Mr Pasini still contests the matter.

    [1]Extradition (United Mexican States) Regulations 1991.

  3. The series of steps in the extradition process under Pt II of the Act is detailed in the judgments in Director of Public Prosecutions (Cth) v Kainhofer[2] and what follows should be read with those judgments in mind. On 17 December 1999, a magistrate, having determined that Mr Pasini was eligible for surrender to Mexico, by warrant issued under s 19(9) of the Act, ordered that Mr Pasini be committed to prison. Mr Pasini then applied to the Federal Court for a review of that order. Jurisdiction in that respect is conferred on the Federal Court by s 21(1) of the Act. The moving party in such an application is, where the magistrate has made a determination of eligibility for surrender, the person in question, here Mr Pasini; where the magistrate determines that the person is not eligible for surrender, then the applicant under s 21(1) is the extradition country.

    [2](1995) 185 CLR 528 at 533‑538 per Brennan CJ, Dawson and McHugh JJ, 547‑554 per Gummow J. See also Foster v Minister for Customs and Justice (2000) 200 CLR 442 at 445‑447 [3]-[7] per Gleeson CJ and McHugh J, 455‑456 [36]-[37] per Gaudron and Hayne JJ, 467‑468 [68]-[72] per Kirby J.

  4. The application by Mr Pasini for review was heard by French J. On 29…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Pasini v United Mexican States and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2002] HCA 3
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an application for special leave to appeal by Marco Pasini Bertran against a judgment of the Full Court of the Federal Court of Australia. The Federal Court had dismissed an appeal against orders confirming a magistrate's decision that the applicant was eligible for surrender to the United Mexican States under the *Extradition Act 1988* (Cth). The applicant, a Mexican national, was sought by Mexico on charges of wilfully assisting another individual to commit crimes and of concealment.

The legal issues before the High Court concerned the constitutional validity of provisions within the *Extradition Act* that limited the Federal Court's review of a magistrate's extradition order. Specifically, the court had to determine whether a provision requiring the Federal Court to consider only the material before the magistrate, and not to receive further evidence, denied the Federal Court the power to prevent an abuse of its process and was therefore inconsistent with the exercise of the judicial power of the Commonwealth. The applicant also contended that such a provision amounted to a purported conferral of non-judicial power on the Federal Court by enabling it to participate in an administrative function.

The High Court, in dismissing the application for special leave to appeal, affirmed the reasoning of the Federal Court. The courts below had held that the limitation on the evidence receivable by the Federal Court did not invalidate the statutory review process. It was reasoned that the Parliament may prescribe rules of evidence and procedure for federal courts, and that confining a review to the material before a prior decision-maker does not necessarily undermine the judicial nature of the review. The Federal Court's role was characterised as the exercise of judicial power, not an impermissible administrative function, as it involved a final and binding determination of the issue of eligibility for surrender.

The application for special leave to appeal was refused, and the applicant was ordered to pay the costs of the first respondent.

Orders

Orders of the court

1. Application for special leave to appeal refused.

2. The applicant to pay the costs of the first respondent.

Background

Background to the litigation

Marco Pasini Bertran ("the applicant") applied for special leave to appeal to this Court from a judgment of the Full Court of the Federal Court of Australia[10]. That judgment had dismissed an appeal against orders made in that Court by French J[11]. Those orders had, in turn, confirmed the decision of Magistrate Hannan that the applicant, and an alleged co-offender, Mr Carlos Cabal Peniche ("Mr Cabal"), were eligible, under the Extradition Act 1988 (Cth) ("the Act"), to be surrendered to the United Mexican States ("Mexico"). The application for special leave has been dismissed by this Court. It remains for me to state my reasons.[10]Cabal v United Mexican States (2001) 108 FCR 311.[11]Cabal v United Mexican States (No 3) [2000] FCA 1204. The primary judge had also dismissed an application by the applicant and Mr Cabal for judicial review of the magistrate's order under the Act.The facts It is unnecessary to recount the detailed facts surrounding the applicant's earlier life in Mexico, his departure from that country, his life in France, Spain and elsewhere as a fugitive from prosecution, his adoption of a false identity and his arrival in Australia in 1997 under an assumed name[12]. The applicant, a Mexican national, is the brother-in-law of Mr Cabal who, before their departure from Mexico, was chairman of Banco Union, a bank in that country. [12]The facts are set out in the reasons of the primary judge: Cabal [2000] FCA 1204 at [1]-[86]. In November 1998 the applicant and Mr Cabal were discovered in Melbourne, Victoria. They were taken into custody. In January 1999 a diplomatic note was received by Australia from Mexico requesting the extradition of the applicant under the treaty between Mexico and Australia. The note relied on two arrest warrants that had been issued against the applicant in Mexico[13]. This request set in train action by the Acting Attorney-General under s 16(1) of the Act. In respect of the applicant, the notice under s 16(1) summarised the offences for which his extradition was requested. They comprised three counts. Two of them involved "wilfully helping" Mr Cabal to commit crimes contrary to the Law of Credit Institutions of Mexico and the Federal Criminal Code of that country. The third count involved alleged "concealment", contrary to the Federal Criminal Code of Mexico[14].[13]See Cabal [2000] FCA 1204 at [76]. The two warrants were issued in respect of the applicant on 18 January 1996 and 29 August 1996 respectively.[14]Cabal [2000] FCA 1204 at [86]. After an unsuccessful application for review of the Attorney-General's decision to issue the foregoing notice[15], an extradition hearing under s 19 of the Act took place between July and December 1999 before Magistrate Hannan[16]. On 17 December 1999, the magistrate determined that both the applicant and Mr Cabal were eligible for surrender to Mexico within the meaning of s 19 of the Act. She issued warrants accordingly. Pursuant to s 21 of the Act, the applicant and Mr Cabal then commenced the application for review in the Federal Court, the dismissal of which led to the proceedings in this Court.[15]Bertran v Vanstone (2000) 173 ALR 63.[16]Magistrate Hannan is the second respondent to these proceedings and she submitted to the orders of this Court.The legislative provisions

Evidence

Evidence Before The Court

It follows that it is unnecessary to consider whether, had the applicant's arguments on his first issue succeeded, the impugned provisions would be excised from the Act or treated as integral to the powers of the magistrate under s 19. No issue of severance has to be decided. These are the reasons why I dismissed the applicant's first ground of challenge.The limitation of evidence and stays The applicant's complaint: Because the applicant made it clear that he did not contest the correctness of this Court's decision in Abebe[101], the problem presented for him by the second issue is immediately apparent. If the Parliament, in the course of "defining" the jurisdiction of a federal court in a particular matter, does so in terms that confine it to the exercise of that jurisdiction on the basis of the material that was before the administrator and nothing else, how can such definition be incompatible with the judicial function[102]? As the Constitution envisages limitations of the jurisdiction of federal courts and as many courts in the past have been limited to the record of courts and tribunals from which they have received appeals (or which they review) how can it be said that the review afforded by s 21 of the Act is in some way undermined as a proper function of such a court by the limitation stated in s 21(6)(d)?[101](1999) 197 CLR 510.[102]In Williamson v Ah On (1926) 39 CLR 95 at 122 it was accepted that the Parliament may prescribe rules of evidence and procedure for the exercise of the federal judicial power. Necessarily, these will sometimes involve provisions permitting or requiring the exclusion of some evidence from judicial consideration. The applicant submitted that the circumstances of his case demonstrated how offensive to principle it was to subject the Federal Court, under the guise of performing judicial functions, to "going through the motions" of considering whether, only on the material before the magistrate, he was a person "eligible for surrender" when evidence was available which could show the want of good faith of Mexico in pressing on with its application for his extradition. If such evidence could have been admitted in the Federal Court, it was submitted, it might undermine the charges in the arrest warrant upon the basis of which the magistrate had determined that the applicant was a person "eligible for surrender" to Mexico. The charges in question involved the offences previously described by reference to "wilfully helping" Mr Cabal to commit crimes in his capacity as an employee and officer of the Mexican bank of which he was at the relevant time chairman and "concealment" of Mr Cabal. The evidence, proffered but rejected in the Federal Court, struck mortally, so it was submitted, at all of the offences alleged against the applicant because an essential element of each was that Mr Cabal, in the nominated capacities, had committed the offences specified. Not only was it argued that an affidavit was available from the lawyer acting in Mexico for the applicant and Mr Cabal to demonstrate that the latter had not been a member of the relevant committee of the bank whose authority was required for the transactions impugned in the charges against Mr Cabal. As well, it was submitted that a letter from the same lawyer reported on documents that had been shown to him in July 2000 by officers of the Mexican Law Department comprising "four resolutions". These were said to decide that criminal action would not be exercised "against Mr Carlos Cabal in preliminary investigations that involved him". This, it was submitted, could be shown by evidence to be the equivalent of a decision of nolle prosequi under Australian criminal procedure. Accordingly, the evidence should have been received by the Federal Court.

Decision

Reasons for decision

HUGH AND GUMMOW JJ KIRBY J
The second issue would only arise if the first were decided adversely to the applicant. It is presented in circumstances that will be described. Before the primary judge and in the Full Court, an attempt was made to tender evidence which was said to establish that, in relation to Mexico's request for the applicant to be surrendered, Mexico was acting unconscionably, unfairly, abusively and dishonestly. If otherwise the provisions of the Act for judicial review were held to be valid, the applicant argued that the provision of the Act purporting to forbid the Federal Court receiving evidence, and limiting its review "to the material that was before the magistrate"[41], was constitutionally invalid.[41]The Act, s 21(6)(d).The decisions of the Federal Court In the Federal Court, the applicant (and Mr Cabal) argued many objections to their eligibility for surrender[42]. Relevant to the two issues reserved for consideration in these proceedings, the argument sought declaratory relief to the effect that the Act was constitutionally invalid and orders requesting the Federal Court to take the propounded material into account.[42]Set out in the reasons of the primary judge: Cabal [2000] FCA 1204 at [105]. The primary judge rejected the submission that s 21 of the Act constituted an invalid attempt to confer non-judicial powers on the Federal Court. He concluded that "one of the criteria for characterising a power as administrative or judicial is the body to which it is entrusted"[43]. As the limited question for review committed to the Federal Court was, in turn, confined to having regard only to the material that was before the magistrate, this justified its characterisation as judicial not administrative. The primary judge considered that, although the attack identified in the first issue now before this Court had not been mounted in Director of Public Prosecutions (Cth) v Kainhofer[44], it was inherent in the decision in that case that the validity of the conferral of judicial power on the Federal Court had been accepted[45]. [43]Cabal [2000] FCA 1204 at [118] citing Cominos v Cominos (1972) 127 CLR 588 at 606.[44](1995) 185 CLR 528.[45]Cabal [2000] FCA 1204 at [124]. So far as concerned the additional evidence, which gives rise to the second issue, the primary judge recorded the invitation of counsel "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"[46]. Of this his Honour stated:"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."[46]Cabal [2000] FCA 1204 at [245]. The Full Court affirmed the primary judge's decision on the constitutional question relating to the suggested invalidity of the attempt to impose administrative functions on the Federal Court[47]. That Court concluded that, on review, the Federal Court was exercising the judicial power of the Commonwealth and not an impermissible administrative function. It pointed out that the first general extradition statute in the United Kingdom, enacted in 1870[48], gave a limited right to approach a court "where the fugitive criminal was not surrendered and extradited within two months of committal"[49]. The fact that the scope of the Federal Court's review was limited, and that the materials it could take into account were confined, did not alter the judicial nature of the proceedings themselves[50]. Nor did it alter the final and binding character of the determination so far as the parties were concerned and in respect of "the issue before the Court, namely whether the person whose extradition is sought is eligible for surrender"[51].[47]Cabal (2001) 108 FCR 311 at 338-339 [104].[48]Extradition Act 1870 (UK).[49]Cabal (2001) 108 FCR 311 at 337 [95].[50]Cabal (2001) 108 FCR 311 at 338 [102].[51]Cabal (2001) 108 FCR 311 at 338 [102].

Ratio Decidendi

Legal Principle Established

Established by: HUGH AND GUMMOW JJ, KIRBY J

Full text does not contain this section.