Marco Pasini
49 On 20 January 1999, the Third District Judge in Criminal Matters in the State of Mexico granted a provisional stay on warrants of arrest "issued by the judicial authorities indicated as responsible and identified at 3.1 and 3.2 in the claim", directed to the authorities responsible for their execution. The stay granted on 20 January 1999 did not list the Magistrate of the Third Unitary Court of the First Circuit, who had in fact issued the warrants, as a responsible authority. On 23 February 1999, the same judge granted a second provisional stay. That stay recited that, "besides the authorities already mentioned as responsible in the initial claim, it is also held as responsible the authority designated as Magistrate of the Third [Unitary] Court of the First Circuit, who is requested to submit a preliminary report". The stay relevantly read:
Based on the provisions of Section 136 of the Amparo Law, it is hereby granted the provisional stay of the claimed acts since this does not imply any damage to the social interest and it does not infringe any provisions of public order. … [F]or the sole purpose that things remain as they presently are and by reason of the claimed acts …: the claimant [Pasini] be not deprived of his personal liberty and he shall remain at the disposal of this Third District Court … in regard to his personal liberty, and at the disposal of the acting judge or judges for the continuation of the corresponding criminal procedure.
This determination remains in force until the moment when the responsible authorities are notified of the interlocutory judgment to be awarded upon resolution of this incidental proceeding.
…
In the understanding that the suspensory decision (stay) awarded produces effects from the moment when the claimant enters into national territory … .
The provisional stay was subject to the same kind of conditions, as to the provision of a bond, the making of a preparatory statement before the relevant criminal judge etcetera, as were set in the other stays considered above. The judge granted a definitive stay of the warrants for the arrest of Pasini on 29 March 1999 on substantially the same terms as the provisional stay.
Construction of ss 6(a)(i) and 16 of the Act
50 The foregoing is the context in which the question, "did the Minister act on an erroneous construction of s 6(a)(i) in forming her opinion under s 16(2)(a)?", is said by the applicants to arise. The answer to that question necessarily turns, however, on the terms of the Australian Act and the proper construction of the expression "warrant … in force for the arrest of a person" in s 6(a)(i).
51 The power under s 16 is a discretionary one that can be exercised only if the conditions in s 16(1) and (2)(a) are met and the condition in s 16(2)(b) is not. Amongst other things, the Attorney-General must have received an extradition request from an extradition country (s 16(1)) and be of the opinion that the person whose extradition is sought is an extraditable person in relation to the extradition country (s 16(2)(a)(i)). In this case, Mexico is the extradition country: see s 5 of the Act and reg 4 of the Regulations. Section 6 sets out exhaustively the criteria for determining whether a person is an "extraditable person" for the purpose of s 16(2)(a)(i). These criteria require the Minister to form an opinion about, amongst other things, whether there is a warrant in force for the arrest of the person whose extradition is sought in relation to an (extradition) offence that the person is accused of having committed. (I return to the concept of extradition offence below.) That is, in order to satisfy the criteria in s 6(a)(i), there must be a warrant that is (i) in force; (ii) for the arrest of a person; and (iii) in relation to an (extradition) offence against the law of a country that the person is accused of having committed.
52 In construing s 6(a)(i), it is, of course, necessary to consider the objects and the terms of the Act as a whole. A principal object of the Act is, as we have seen, to enable Australia to carry out its obligations under extradition treaties with other countries that adopt criminal procedures different from our own: see ss 3(c), 11(1)(a) and (1C) of the Act and reg 5 of the Regulations. Plainly enough, the provisions of the Treaty must also be borne in mind. The Treaty itself is to be interpreted "in accordance with the ordinary meaning to be given to [its] terms in their context and in light of its objects and purpose": see Vienna Convention on the Law of Treaties ("Vienna Convention"), art 31; also Commonwealth of Australia v Tasmania (1983) 158 CLR 1 at 222-3; Thiel v Commissioner of Taxation (1990) 171 CLR 338 at 349, 356; and Kainhofer at 562.
53 Pursuant to art 1 of the Treaty (set out above), Australia and Mexico agree to extradite to each other "persons against whom criminal proceedings have been initiated … for an extraditable offence". The object of the Treaty is, plainly enough, to give effect to that agreement. That object is reflected in the documents that, in accordance with art 16, the requesting party must send with an extradition request. That is, pursuant to art 16.1(b) (also set out above), the requesting party must include:
the original or authenticated copy of the warrant of arrest … or any other judicial order made under the laws of the Requesting Party which authorizes the arrest of the person and from which the existence of the offence and its commission by the person sought may be reasonable inferred.
The reason for requiring the production of these documents is, so it seems, to enable the recipient of the request to determine whether the person sought fits the description (in art 1) of a person whom the parties have agreed to extradite.
54 The focus of the Treaty, at this point, on the initiation of criminal a proceeding, which is evidenced by the arrest warrant, conforms to the history of extradition. As Gummow J observed in Kainhofer, nineteenth century authorities were particularly concerned with questions about the initiation of foreign criminal proceedings and the existence of foreign arrest warrants against those whose extradition was sought : see 185 CLR at 559-562. It was not, however, until the Extradition (Foreign States) Act 1966 (Cth) that there was any statutory requirement for the production to a magistrate of a foreign arrest warrant: see ss 4(1), 16(1), 17(6) of that Act. There was no such requirement in its statutory predecessor, the Extradition Act 1870 (Imp) (33 and 34 Vict c 52), although as Gummow J noted in Kainhofer at 557:
[I]t was usual for the executive to require "some prima facie evidence of guilt" (Clarke, A Treatise Upon the Law of Extradition, 2nd Ed (1874), p 177) and in some cases the treaty stipulated production of a warrant of arrest "or other equivalent judicial document". (The extradition treaty of 1876 between Great Britain and France so provided; see R v Governor of Brixton Prison [1911] 2 KB 82 at 83, where the text is set out.)
Though the role of the Attorney-General under s 15 of the Extradition (Foreign States) Act 1966 was similar to that under s 16 of the current Act, the Attorney-General was not required under the former Act to consider whether there was a foreign warrant in existence. Subject to one matter, where there was a requisition for the surrender of a "fugitive" and a warrant for the apprehension of the "fugitive" had been issued by a magistrate in an Australian court, the Attorney-General had power to issue a notice similar in terms to a notice issued under s 16 of the current Act. The term "fugitive" was defined in s 4 of the 1966 Act as
a person accused of an extradition crime that is alleged to have been committed, or convicted of an extradition crime that was committed, at a place in foreign State or within the jurisdiction of, or part of, a foreign State.
The Attorney-General was not to give such a notice if "of the opinion that the fugitive is not liable to be surrendered to the foreign state": see ss 12 and 13 of the 1966 Act. The requirement for the production of a duly authenticated foreign warrant was contained in s 17(6) of the 1966 Act. Pursuant to that provision, the foreign warrant was to be produced at the extradition proceeding conducted before the magistrate.
55 The introduction of the expression "extraditable person" in place of the word "fugitive" was effected by the current Act. The explanatory memorandum that accompanied the Extradition Bill 1987 stated, in relation to cl 6:
This clause defines "extraditable person" as a person accused or convicted of an extradition offence regardless of when the offence was or was alleged to have been committed. The definition links the person to a country whose laws have been or are alleged to have been breached and requires that the person is believed to be outside the requesting country.
Parliament did not intend, so the explanatory memorandum indicates, to work any significant change in substituting the term "extraditable person" for the term "fugitive" and in shifting from the concept of "accusation" to the criterion of "warrant in force". The latter expression was, so it would seem, merely intended to provide an objective touchstone for determining whether a person had been accused of a criminal offence and whether that accusation had led to the initiation of criminal proceedings. The criteria for "extraditable person" in s 6(a)(i) can be understood as reflecting these two historically recognised concerns in extradition law.
56 A further reason for the introduction of the "warrant in force" requirement may have been to secure some minimal assurance that the evidence against the suspect at the time of the extradition request justifies a trial under the law of the requesting state. In these cases, the evidence shows that the Mexican arrest warrants have been issued against the applicants following decisions of Mexican judges that the evidence against them is sufficient, at this stage at least, to place them on trial. In this way, the "warrant in force" requirement may have been intended to compensate, in part, for the elimination, by the Extradition (Foreign States) Amendment Act 1985, of the prima facie case requirement in the 1966 Act: see s 17(6) of the 1966 Act.
Must a warrant be immediately executable in the requesting state to be "in force" for purposes of the Act?
57 If the foregoing approach is correct (and in my view it is), there is little significant difference between the notion of a "warrant in force for the arrest of a person" in s 6(a)(i) and "a duly authenticated warrant … for the arrest of the person" in s 19(3) of the Act. The words "for the arrest, etc" are in both instances merely descriptive of the warrant. That is, the warrant must authorise arrest. The "due authentication" requirement in s 19(3), which is not found in s 6(a)(i), simply reflects the fact that the requirement for formal proof is postponed until a more advanced stage in the extradition process. On this approach, the expression "a warrant in force for the arrest of a person" refers to a warrant that is valid (or, which is the same thing, operational or effective). The fact that a valid warrant is stayed (for a limited time and purpose and upon conditions designed to secure the suspect's presence in the criminal proceeding initiated against him) does not deprive the warrant of relevant "force".
58 Returning to the Treaty, this construction of s 6(a)(i) is consonant with the obligation assumed by Australia under art 1, namely, to extradite persons against whom criminal proceedings have been initiated. The applicants submitted that:
The basis of extradition law and treaties is that a requested state is asked to do that which the requesting state could do but for the absence of the subject from its jurisdiction.
…
A construction of s 6 broad enough to embrace warrants merely issued or in existence would frustrate the purpose of the Act and allow unwarranted interference with the liberty of the accused.
The applicants' argument came down to this: if they cannot, on their return to Mexico, be immediately arrested, because execution of the relevant warrants is stayed, then Australia cannot act upon the basis that it is doing for Mexico what Mexico cannot do for itself by reason of the applicants' absence from the Mexican jurisdiction. If Australia proceeds with the extradition process in these circumstances, there is an unwarranted interference with the applicants' liberty. I reject these submissions.
59 There is a plain difference between, on the one hand, the competence of a state to arrest within its territory persons who are suspected of criminal offences against its laws and, on the other, the competence of a state to apprehend a person who happens to be within its territory in order that it may fulfil its treaty obligations by returning him to a foreign state to be dealt with according to its laws. There is no question of Australia's executing a Mexican arrest warrant. The applicants' submission fails to take account of the fact that a principal object of the Act is to give effect to Australia's treaty obligations, in this case, with Mexico. The true reference point is the Treaty.
60 Under the Treaty, the fact that a warrant, though valid, cannot, for some reason, be executed immediately is not to the point if, by reason of the warrant, a criminal proceeding is initiated against the person sought. This is, in fact, the case in Mexico, as the evidence establishes. Furthermore, the stays, whether provisional or definitive, are not designed to impede the criminal process. On the contrary, the evidence before me clearly shows that the stays are, as a matter of Mexican law, granted in such terms that the relevant criminal proceedings are not impeded and are, to an extent, facilitated by the amparo judges. More to the point, the terms of art 16.1(b) indicate that the issue of an arrest warrant (or a like instrument) is the procedure that has been selected by the parties to the Treaty for establishing that relevant criminal proceedings have begun.
61 Of course, it cannot be denied that considerations of personal liberty are at stake in extradition proceedings. There are, however, not only the interests of the person whose extradition is being sought to be considered, there are also the interests of Mexico and Australia to be borne in mind. As Gummow J observed in Kainhofer at 555, Part II of the Act strikes
a balance between the interests of the extradition country in retrieving those whose return it seeks in respect of offences against its laws, those of Australia in upholding its dominion over those presently on its territory and those of the alleged extraditable persons.
62 I cannot accede to the submission that there is any improper interference with the applicants' liberty by construing s 6(a)(i) to cover a valid warrant which, though stayed, is stayed upon terms that are designed to facilitate the criminal proceedings which concern the applicants. The amparo judges in Mexico refused to stay the extradition process. If the applicants are returned to Mexico, they will enjoy the protection of the stays there, subject to their compliance with the terms of the stays, which includes submission to the authority of the judge in charge of the criminal proceedings. I accept, as the Minister submitted, that it would impede compliance with Australia's Treaty obligations to exclude from the concept of a warrant "in force" a valid warrant that is stayed in a Mexican amparo proceeding, especially when the stay is not intended to impede the criminal proceeding and will cease once the amparo proceeding is resolved.
63 I am fortified in my view that a "warrant in force" for the purposes of s 6(a)(i) may include a valid warrant subject to a stay by the approach taken in Australian courts to cognate questions. Plainly enough, the sense of phrases such as "in force", "of force and effect", "put in force" etcetera depends very much on the context in which they are used. For this reason, none of the cases to which the applicants referred on this matter proved to be of assistance. The circumstances of those cases were too far removed from the present case. The applicants referred to Freer v Murray [1894] AC 576, Tower Justices v Chambers [1904] 2 KB 903 and In re London & Devon Biscuit Co (1871) LR12Eq 190. Freer v Murray concerned a licence for the sale of beer that had expired by reason of the effluxion of time. The Tower Justices Case concerned a beerhouse licence that was forfeited by reason of the holder's conviction for selling spirits without a licence. In both cases, the licence at issue was not merely suspended but ceased to exist. In the last mentioned case, a creditor had obtained judgment in an action against a company and had placed a writ of execution in the hands of the sheriff just three hours before a winding-up petition was presented against the company. It was held in that case that the execution was not "put in force" within the meaning of s 163 of the Companies Act 1862 until possession was actually taken. The point of construction in that case is very different from that which arises in the present case.
64 The Minister referred to L Joseph Pty Ltd v Gray (1939) 56 WN (NSW) 190; Pikor v Smith [1982] Tas R 240 and Gray v Minister for Immigration, Local Government & Ethnic Affairs (1992) 38 FCR 351. None of these cases concerns the effect of a stay upon an arrest warrant. Each concerns stays on a different matter. Nonetheless, the cases show that, in Australia at least, a stay, without more, does not undo or invalidate that which has been legally done prior to the stay. A stay simply preserves things as they are. A stay stops anything from being done which would relevantly alter the position of the parties.
65 L Joseph Pty Ltd v Gray concerned the effect of a stay of proceedings under the Moratorium Act 1932 (NSW) on a writ of fieri facias. Bavin J rejected a submission that, after the sheriff had received notice of the stay, his continued possession of the goods earlier taken under the writ was unlawful. His Honour said at 195-6:
A stay of proceedings, as I understand it, does not require anything to be undone that has been legally done. It does not require the party against whom it operates, to alter the legal position that has already been created. It merely prevents anything from being done that would in any way alter that position.
…
I think the effect of the stay is to leave the position in fact, just as it is, and to forbid the Sheriff to take any steps which would alter the legal position.
66 In Pikor v Smith, Cox J held at 243 that a warrant of arrest under s 78(4) of the Justices Act 1959 (for non-payment of a fine) was valid, even though issued pursuant to proceedings that were stayed after the warrant issued.
67 Gray v MILGEA relevantly concerned the effect of a stay on a deportation order. The applicant, who had been arrested under the deportation order prior to the grant of a stay pending an appeal from the Administrative Appeals Tribunal to this Court, contended that since the deportation order had been stayed pending appeal, it was not "in force" within the meaning of s 93(1) of the Migration Act. Burchett J said at 353:
But that is to mistake the effect of a stay. Although the Minister must temporarily hold his hand, the order has not ceased to be in force. Its ultimate operation is merely suspended.
This general understanding of the effect of a stay upon a judicial order or administrative direction is also reflected in the ordinary meaning attending the words "stay" and "in force". The Oxford English Dictionary (2nd Edition) supplies the following definitions:
Stay 25. To stop, arrest, delay, prevent (an action or process, something which is begun or intended).
Force. 8c. in force: operative or binding at the time.
The Macquarie Dictionary gives similar guidance.
68 Under Australian law, the ordinary position would seem to be that a mere stay upon an instrument in the nature of an arrest warrant would not impugn whatever had been done under its authority prior to the stay and would not invalidate the warrant. The effect of a stay is merely to stop anything being done that would materially alter things from the status quo at the time the stay was granted. This means that, subject to the relevant statutory provisions, a warrant for the arrest of a person would ordinarily be said to remain "in force" though subject to a stay. Hence, it would ordinarily be said that a valid warrant, though stayed, is in force. This was, in my view, what Parliament intended by the expression "warrant … in force for the arrest of a person" in s 6(a)(i) of the Act. The warrant would, of course, cease to be in force if it were revoked, quashed, or annulled. If the applicants' amparo proceedings in Mexico ultimately succeed, the result may well be that the warrants cease to be in force. This had not happened at the time the s 16 notices issued.
69 In any event, even if it is correct to say (contrary to my view) that warrants for non-serious offences subject to amparo stays are not "in force" for the purposes of s 6(a)(i) of the Act, the applicants would not show that the Minister acted on an erroneous construction of that provision in either V 120 or V 121. This is because, at the time the Minister gave the notices challenged in those matters, neither she nor her Departmental officers knew about the amparo stays. The question whether the amparo stays deprived the warrants of their force did not arise in either matter. It could only arise in V 222 where the Minister was aware of and took into account the amparo stays.
Have the amparo stays come into effect?
70 Before turning to another ground, I deal with an alternative justification put forward by the Minister. This was as follows: if a stay on the execution of an arrest warrant meant that the warrant was no longer in force, nonetheless, it had not been shown that the Minister had acted on an erroneous construction of s 6(a)(i) when she issued the notice following Mexico's second extradition request for Cabal. This was because the Minister took the view that, as a matter of Mexican law, the stays did not come into effect until the applicants re-entered Mexican territory. The Minister might equally have said that if she acted on an erroneous understanding of the effect of the stays, then that error (as to Mexican law) was merely an error of fact and unreviewable by this Court.
71 The evidence showed that Cabal's solicitors wrote to the Minister by letter dated 24 February 1999, informing her of the amparo stays and asserting that the arrest warrants for non-serious offences were not "in force". The matter was referred to Mexico for comment. Mexico responded by a letter dated 10 March 1999, stating that "the effect of such Suspensions are [sic] conditional upon … Cabal returning to Mexican territory". This information was accepted by the Departmental officers advising the Minister in their memorandum of 22 March 1999. It may be assumed that the Minister accepted their advice. Accordingly, she must have acted on the assumption that the effect of the amparo stays was conditional on Cabal returning to Mexico.
72 At the hearing of these applications, the Minister led evidence (notwithstanding that she maintained an overarching relevance objection to the applicants' evidence of the same kind) that the stays were not yet in effect; and that they would not come into effect until the applicants returned to Mexico. This meant that, in each instance, a warrant, though the subject of a decision to grant a stay, had not actually been stayed at the time the Minister made her decision to issue a s 16 notice.
73 Agustin Acosta Azcon, a lawyer expert in Mexican criminal and amparo law, gave evidence that an amparo stay generally takes effect immediately pursuant to art 139 of the Amparo Law, but that (save in one instance) this is not the effect of the stays upon which the applicants rely. The only stay which took effect when it was granted was, according to Mr Acosta, the provisional stay granted Cabal on 22 February 1999, in respect of a warrant issued on 22 December 1998, made definitive on 22 March 1999. He testified that, in each other instance, a decision to grant a stay had been made but the stay itself would not take effect until the petitioner returned to Mexico. In support of his opinion, Mr Acosta referred to the specific terms of each stay, to the terms of art 136 of the Amparo Law, and to jurisprudence. (I interpolate here that, according to the civil law tradition, legislation is the fundamental source of law in Mexico. Judicial decisions play only a supplemental role. In relation to judicial decisions, binding effect attaches only to what are termed jurisprudencia obligatoria, or jurisprudences. The Mexican Supreme Court and Collegiate Tribunals can establish binding jurisprudence on themselves, lower federal courts, State courts, Administrative Tribunals and Labour Courts.) Mr Acosta said that art 136, which specifically related to criminal amparos, permits an amparo judge to impose a condition that made the stay effective only when the petitioner enters Mexico, bearing in mind that it is not until then that the petitioner can comply with any requirement to attend before the judge in charge of the criminal proceeding. In his view, art 139 does not apply, because art 139 allows only 5 days for compliance with stay conditions and it is clear that the petitioners could not present themselves to the judges in the criminal matters within that time.
74 Two other Mexican lawyers, Alberto Conrado Zinser Cieslik and Marco del Toro, both expert in criminal and amparo law, testified that, not only do amparo stays generally have immediate effect by virtue of art 139, but, in each instance, the applicants' stays are expressed to take effect from the date of their grant. Mr Zinser and Mr del Toro gave evidence that the terms of the stays contain only conditions subsequent for their continuation once the applicants return to Mexico. In granting the stays, the amparo judges have not, so they testified, made the commencement of the stay contingent or conditional on any event, such as the petitioner's return to Mexican territory.
75 Messrs del Toro and Zinser referred to the specific terms of the stay orders, which in each instance included words to the effect that "The provisional suspension is granted … maintaining things in their status quo". By virtue of art 139, an amparo stay produces effect, Mr del Toro said, from the moment it is granted, in the sense that from that moment the responsible authorities are required to be notified of the stay and of its "paralysing" effect on the act of authority against which it is directed (here, an arrest warrant). In response to Mr Acosta's evidence that art 136 permits amparo judges to make the effect of a stay conditional upon the petitioner's return to Mexico, Mr del Toro and Mr Zinser said that that provision only dealt with the conditions that might be imposed in criminal matters once a stay had been granted, with a view to ensuring that the criminal process could continue. Article 136 does not, in their view, permit any departure from art 139.
76 There is, as one might anticipate, much common ground between Messrs Zinser and del Toro, called by the applicants, and Mr Acosta, called by the Minister. Their evidence is that decisions to grant stays had been made and that, by virtue of art 139, an amparo stay ordinarily takes effect from the moment it is granted. Moreover, I did not understand Mr Acosta to contest that the decision to grant a stay produces immediate legal consequences, such as the need to notify the responsible authorities of the stay and its terms. Plainly enough, a number of the conditions attaching to the stays are in the nature of conditions subsequent to the applicants' return to Mexico (e.g., the reporting requirements).
77 The matter upon which the experts disagree is whether the operation of the stays is, in each instance bar one, conditional upon the applicants' return to Mexico. I accept Mr Acosta's evidence that there is a debate amongst Mexican lawyers as to whether art 139 or art 136 is applicable in the circumstances in which they made their amparo petitions; and that there is no jurisprudence directly on point. I accept that there is in Mexico respectable opinion that, in the peculiar circumstances of Cabal and Pasini, an amparo judge has the authority, by virtue of art 136, to impose a condition that makes the efficacy of a stay conditional upon the relevant applicant's return to Mexico. I also accept, as Mr Acosta testified, that jurisprudence established by the Supreme Court accords an amparo judge ample discretionary power to formulate measures that may be imposed on amparo stay as conditions of efficacy.
78 I am not satisfied, on the evidence before me, that all the stays took immediate effect upon pronouncement. In each instance bar one, the stay specifically stated "This precautionary measure will only be effective if the complainant, when returning to national territory …". On one view, the pairing of the future tense, "will … be effective", with the conditional clause that follows makes it difficult to say (as the applicants do) that the stays were effective at the moment they were granted. (The exception was a (non-serious offence) warrant, referred to in the second extradition request for Cabal that was the subject of a provisional stay granted on 22 February 1999.) The sentence may, of course, be read as no more than a statement of the plain fact that the stay will not have any practical effect until the applicant's return because an arrest warrant cannot be executed abroad. In light of the text and Mr Acosta's testimony, however, I am not satisfied that the stays were intended to operate as the applicants contended.
79 The failure to exercise jurisdiction has to be shown to support a grant of mandamus: see Re Coldham; ex parte Brideson (1989) 166 CLR 338 at 349; and Re Operative Plasterers Workers Federation of Australia; ex parte Brown (1992) 67 ALJR 179 at 180. I accept, as the Minister contended, that there was no error shown in the formation of her opinion that could have resulted in a constructive failure to exercise jurisdiction. Even if the applicants were correct about the operation of the stays, any consequential mistake on the Minister's part would be in the nature of a mere (non-jurisdictional) error of fact. It could not be said that there was any error amounting to a misunderstanding on the Minister's part of the opinion that she was to form: see R v Connell; ex parte Hetton Bellbird Collieries Ltd [No 2] (1944) 69 CLR 407 at 432; Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420; and Re Boyne Smelters Ltd; ex parte Federation of Industrial Manufacturing & Engineering Employees of Australia (1993) 177 CLR 446 at 457.