challenge made by the applicant
25 There was evidence before the magistrate, in the testimony of the applicant's Mexican lawyer, Alberto Conrado Zinser Cieslik, that, under Mexican law, save in circumstances not presently relevant, bail will be granted where the relevant offence is not classified as serious. Legislation in Mexico classifies what crimes are serious for this purpose. According to Mr Zinser's evidence, the crimes referred to in the Mexican arrest warrants relating to Mr Pasini are not classified as serious and, in consequence, once in Mexico, Mr Pasini would be entitled to bail. It was not disputed that the discrimination between serious and other crimes under Mexican law is for the limited purpose of the disposition of a bail application in a Mexican court. As the first respondent noted the offences referred to in the arrest warrant of 18 January 1996 each carried a maximum penalty of seven and a half years' imprisonment, whilst the offence referred to in the arrest warrant of 29 August 1996 carried a maximum penalty of three years' imprisonment.
26 There was also evidence before the magistrate, in the testimony of Mr Zinser and Mr De La Guardia, legal attache for Mexico, as to the effect of the orders made in Mexico on 20 January and 23 February 1999. That evidence was to the effect that the orders of 20 January and 23 February have no effect in relation to Mr Pasini while he remains outside Mexico. On entry into Mexico, a stay of execution under the Mexican arrest warrants would take effect, although breach of any of the conditions of the stay would result in suspension being revoked. The thrust of the evidence would seem to be that Mr Pasini would not be subject to arrest under the warrants at the moment he entered Mexico. Instead, pursuant to the orders, he would have two days in which to appear before the criminal judge before whom his case is listed, in order to submit his preparatory deposition. He would have the additional time specified in the orders to comply with the balance of the stay conditions. At the same time, counsel for Mr Pasini conceded, for present purposes, that the "provisional stays were not intended to prevent [his] extradition".
27 The case presented by Mr Pasini's counsel is that the magistrate failed to have proper regard to broad community standards, as he was required to do, when he failed to hold that (1) Mr Pasini's entitlement to bail in Mexico and (2) the stay orders were, or amounted to, special circumstances, for the purpose of s 15(6) of the Act. In so doing, counsel submitted, the magistrate misconstrued the relevant provisions and failed to ask himself the correct question. Alternatively, if his worship did have regard to community standards, he so misapplied the criterion that his exercise of discretion wholly miscarried. Community standards were, so counsel said, offended by the fact that Mr Pasini was refused bail pending the hearing in Australia of the surrender proceedings under s 19 of the Act, whilst he would be entitled to bail if he were in Mexico. Counsel submitted further that community standards were similarly offended by the fact that Mr Pasini was denied bail, notwithstanding that the execution of the arrest warrants in Mexico had been stayed. Had the magistrate properly instructed himself, so the argument ran, he would necessarily have found that Mr Pasini's entitlement to bail in Mexico and the stay orders constituted special circumstances, either by themselves or in conjunction with the other facts pertaining to Mr Pasini's case.
28 Counsel for the first respondent submitted in turn that (1) the Court had no jurisdiction to grant the relief sought; (2) the claim was not justiciable (or there was no cause of action); and (3) the circumstances in question were not special circumstances, alternatively it was open to the magistrate to find that they were not.
29 After the hearing of this matter on 15 April 1999 (the applicant's solicitors having properly requested the earliest possible date, the applicant being held in prison), applicant's counsel submitted supplementary written submissions concerning the matter of jurisdiction. Leave was sought, in paragraph 1, to make them. The respondents, by letter dated 20 April 1999, submitted that it was inappropriate for further submissions to be made. The applicant replied, by letter dated 21 April 1999.
30 As it turns out, the conclusion I have reached with respect to the special circumstances requirement in s 15(6) makes it unnecessary to deal with the matter of jurisdiction and justiciability and I express no opinion about those issues.
did the magistrate misconstrue subsections 15(2) and 15(6)?
31 I accept that, in considering a bail application under s 15(2) of the Act, a magistrate is called upon to consider, amongst other things, the particular circumstances of the applicant by reference to what may be described as "broad community standards". I also accept that a grant of bail under s 15(2) is not, when made according to law, inconsistent with Australia's obligations under the Treaty, performance of which is ensured by the Act and the Regulations made pursuant to it. The Act itself provides for a person facing surrender proceedings to be released on bail (although the special circumstances requirement in s 15(6) must first be met): cf s 21(6)(f)(iv).
32 I do not, however, accept the applicant's submission that the magistrate misconstrued the relevant statutory provisions and failed to ask himself the correct question, or that his worship so misapplied a relevant criterion that his exercise of discretion wholly miscarried. I cannot discern, in the magistrate's reasons, any failure to direct himself to the relevant criteria, including what might be called broad community standards. On the contrary, in rejecting the proposition that the circumstances of the applicant's case gave rise to "an issue of equality of justice", the magistrate was, it seems to me, directing his mind to the very proposition which the applicant has advanced in this Court. That is, that it offends community standards to deny the applicant bail when he would, or most probably would, be at liberty in Mexico. Further, having rejected that proposition, his worship went on to consider the other matters relied upon by the applicant (mentioned earlier). Those matters (which, it will be recalled, included the conditions and anticipated period of the applicant's incarceration) were covered by and relevant to the criterion of broad community standards. I think it tolerably clear that the magistrate was aware of the test he had to apply. The magistrate considered each of the matters relied upon by applicant and measured them against relevant criteria.
33 The only basis for a conclusion that the magistrate misdirected himself is (1) the absence of any express reference to broad community standards in his reasons, as recorded in the notes of Mr Defteros's Articled Clerk; (2) (as the applicant would have it) his worship's rejection of the two circumstances presently in question; and (3) the absence of any express reference to those circumstances being considered in the aggregate or with reference to the general discretion which fell to be exercised.
34 I do not accept that error is shown simply because the magistrate failed to use the same language as French J in Schoenmakers. It was unnecessary for him to do so. It was enough that his reasons disclosed, as I think they did, that, in making his decision, he directed his mind to the correct question and relevant criteria.
35 Secondly, I reject the proposition that the magistrate was bound to find that an entitlement to bail in Mexico in respect of the underlying offences, or that orders in the nature of the stay orders, established special circumstances.
36 If it matters, I am of the view that, generally speaking, an entitlement to bail of the kind relied on by Mr Pasini would not constitute a special circumstance justifying remand on bail under s 15(2) of the Act. The Commonwealth Parliament has determined to meet its obligations to Mexico under the Treaty by means of the regime established by the Act and the Regulations made under it. That much is reflected in the principal objects of the Act which include enabling Australia to carry out its obligations under extradition treaties and providing for proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited: s 3 of the Act. In the context of extradition proceedings, a primary concern is to ensure that a person eligible to be extradited is delivered to the requesting country, providing the requirements of the Act and Regulations made under it are satisfied. In this case, Mexico has requested Mr Pasini's return to Mexico in order that he can stand trial. The fact that he would be entitled to bail in Mexico where he would be subject to the law of Mexico and the jurisdiction of its courts is, it seems to me, of limited relevance to his application, under s 15(2), for bail in Australia. Similarly, it seems to me to be of limited relevance to the matters raised by subs 15(2) and subs 15(6) that, if he were to return to Mexico, then he would enjoy the benefit of a stay of execution of the arrest warrants (assuming he complied with the conditions of the stay orders). The fact is that Mr Pasini is not in Mexico and is resisting his return to that country where he is required to stand trial.
37 It is unnecessary to decide whether, and, if so, when, an entitlement to bail in an extradition country in respect of an extraditable offence, or stay orders like those in this case, would combine with other factors to constitute "special circumstances" for the purpose of s 15(6) of the Act. An occasion might arise when, for example, stay orders of the kind made in Mexico in Mr Pasini's case would, when considered with other relevant matters, amount to such circumstances. Whether, in a given case, special circumstances are established depends on the entirety of the facts apposite to the application.
38 Comparison with decisions in the United States, which the applicant invited the Court to make, showed that there was no unanimity in that country on the principal issue raised in this case. The best that might be said was that the availability of bail in respect of underlying offences might contribute to a finding of special circumstances: see Morales. The reasoning in Siegmund and Rouvier would seem to foreclose even that possibility.
39 Subject to the availability of judicial review (as to which I say nothing) it is for the magistrate to whom application under s 15(2) of the Act is made to determine whether or not special circumstances are established for the purpose of s 15(6) of the Act. The Act commits that determination to him. In so doing, the magistrate has necessarily to evaluate all the factors apposite to the application by reference to the criteria to which I have referred. It was, I think, open to his worship to form the view in the present case that the only special circumstance, for the purpose of s 15(6), was Mr Pasini's anticipated length of incarceration.
40 Finally, it is not, I think, to be concluded that, having found there was a relevant special circumstance, the magistrate failed to have regard to the totality of the facts apposite to Mr Pasini's case simply because he failed to say expressly that he had done so. At the start of his reasons, his worship specifically set out the matters relied on by the applicant fairly and concisely. It is, in my view, scarcely likely that he did not turn his mind to them, especially when he came to consider his general discretion. The very generality of his prefatory question (did the special circumstance overcome the presumption against granting bail) might be said to point the other way. So too, it might be said, does the fact that his eventual conclusion was reached, having regard to the other evidence before him. Mr Pasini was, his worship found, "trying to avoid detection by Mexican authorities". His worship's findings indicated that he considered that there was a real risk of flight. That was plainly a relevant consideration and the applicant did not submit otherwise in this Court.
41 To adapt what was said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 in a different context, the reasons given by the magistrate are not to be scrutinised over-zealously to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: see also Commissioner for Corporate Affairs v Bracht [1989] VR 821 at 826 per Ormiston J and Cross v McHugh [1974] 1 NSWLR 501 at 503 per Hardie, Reynolds and Glass JJA. This is particularly so when no transcript of the magistrate's reasons is kept; the magistrate evidently gave an abbreviated summary of what he perceived to be the relevant findings; and there is no affidavit (or any other material) from him concerning his reasons.
42 I do not consider that there is any basis shown upon which it might be concluded that the magistrate misdirected himself by misconstruing s 15(2) and s 15(6), or that he so misapplied a relevant criterion that his exercise of discretion wholly miscarried. Accordingly, I would not grant the relief sought by the applicant, whether or not I have jurisdiction to do so. Subject to what counsel may say are the appropriate orders, I would dismiss the motion dated 29 March 1999 with costs.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.