Cabal v United Mexican States

[2000] FCA 1892

Federal Court of Australia|2000-12-20|Before: Gray J

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Court

Federal Court of Australia

Decision date

2000-12-20

Before

Gray J

Source

Original judgment source is linked above.

Judgment (26 paragraphs)

[1]

THE COURT ORDERS THAT:

The applicant Marco Pasini Bertran be admitted to bail on the following conditions: (a) That he enter into a recognisance in the sum of $500,000.00 in a form to be approved by the Director of Public Prosecutions with Margaret Mary Davies and Michael John Hunter Davies as sureties, the amount to be secured by a charge on their house and land at 190 Church Street, Brighton, Victoria. (b) That he surrender all passports and other travel documents, whether in his own name or in any other name, and whether genuine or otherwise, in his possession or control. (c) That he not carry, or have in his possession or control, any document of identity other than a document of identity in his own name. (d) That he not apply for, or otherwise seek to obtain, any passport or other travel document, whether in his own name or any other name, and whether genuine or otherwise. (e) That he reside with his spouse, Montserrat Pasini, at her home at 7 Harold Street, Middle Park, Victoria or at such other address as may be approved in writing by the Director of Public Prosecutions, such approval to be obtained prior to taking up such residence. (f) That he not travel outside a radius of fifty kilometres from the Commonwealth Law Courts building at 305 William Street, Melbourne, Victoria. (g) That he not attend within one kilometre of the Melbourne Airport at Tullamarine, Victoria, or any other airport or airfield, or attend at any port of international departure. (h) That he refrain from communication, direct or indirect, with Carlos Cabal Peniche, his spouse, Teresa Pasini Cabal, and their children. (i) That he refrain from receiving from Carlos Cabal Peniche, or from Teresa Pasini Cabal, directly or indirectly, any money, property or other benefit, other than a weekly living allowance not exceeding $750.00. (j) That he report twice daily, once between the hours of 6.00 am and 8.00 am, and once between the hours of 6.00 pm and 8.00 pm, to the Officer-in-Charge, Australian Federal Police, 383 Latrobe Street, Melbourne, Victoria, or to some other person at some other place agreed in writing by the Director of Public Prosecutions. (k) That he attend at the Federal Court of Australia on the occasion of the delivery of judgment by the Full Court of the Federal Court of Australia on the applicants' appeal in proceeding no. V 700 of 2000 and surrender himself into the custody of the Court. 2. Liberty be reserved to the United Mexican States or the Minister for Justice to apply as a matter of urgency for the revocation of bail or the change of any of the conditions in paragraph 1 of this order in the event of any threatened or impending breach of any condition, or any change of circumstances giving rise to a risk that the applicant Marco Pasini Bertran will not appear on the delivery of judgment by the Full Court.

[4]

The history of the application 2 Carlos Cabal Peniche (who uses the surname "Cabal") and Marco Pasini Bertran (who uses the surname "Pasini"), to whom I shall refer as "the applicants", are citizens of the United Mexican States ("Mexico"). On 11 November 1998, Mr Cabal was arrested pursuant to a provisional arrest warrant issued under the Extradition Act. He was taken before a magistrate and remanded in custody. On 31 December 1998, Mexico made a formal request for the extradition of Mr Cabal in respect of a number of alleged offences relating to the operation of a bank and other offences relating to fraud, taxation and money-laundering. 3 Also on 11 November 1998, Mr Pasini was taken into custody by the Department of Immigration and Multicultural Affairs. On 27 November 1998, he was arrested pursuant to a provisional arrest warrant under the Extradition Act. He was also taken before a magistrate and remanded in custody. On 20 January 1999, Mexico made a formal request for the extradition of Mr Pasini in respect of two alleged offences relating to the operation of a bank and one of concealment. 4 On 11 February 1999, Mexico made a further formal request for the extradition of Mr Cabal in respect of further alleged offences. 5 A hearing before a magistrate pursuant to s 19 of the Extradition Act did not commence until 27 July 1999. The delay was due largely to requests for preparation time by the applicants, proceedings taken by them to challenge the validity of notices by the Minister for Justice and Customs pursuant to s 16 of the Extradition Act, and adjournments of earlier hearing dates to assist the applicants in preparation for the hearing. 6 The hearing before the magistrate proceeded, with various adjournments until 1 December 1999. On 17 December 1999, the magistrate made orders pursuant to s 19 of the Extradition Act. The magistrate determined that the applicants are eligible for surrender in relation to eleven offences in the case of Mr Cabal and three in the case of Mr Pasini. Her Worship signed two warrants pursuant to s 19(9) in respect of Mr Cabal and one in respect of Mr Pasini. Each warrant ordered the committal of the relevant applicant to the Melbourne Assessment Prison or Port Phillip Prison to await surrender under a surrender warrant or temporary surrender warrant, or release pursuant to an order under s 22(5) of the Extradition Act. Pursuant to those warrants, the applicants have been held in prison since that time. The total period of their imprisonment is two years. Since August 1999, they have been held in a unit of the Port Phillip Prison called Sirius East. That unit is used to house prisoners who are considered to require protection from others within the prison. The applicants were moved to Sirius East because they were believed to have been targeted for extortion in other parts of the prison. 7 Pursuant to s 21(1) of the Extradition Act, the applicants applied to the Federal Court of Australia for a review of the magistrate's order. By s 21(6)(f)(iv) the Court is empowered, if there are "special circumstances" justifying such a course, to order the release on bail of persons who have been ruled eligible for surrender and are seeking review, on such terms and conditions as the Court thinks fit until the review has been conducted. 8 The applicants applied to the Court to be released on bail. On 4 January 2000, Goldberg J dismissed their application. See Cabal v United Mexican States [2000] FCA 7. At [69], his Honour said: "For reasons to which I shall refer I am not satisfied that the incarceration of the applicants in Sirius East or the manner in which they are transported to and from Port Phillip Prison are either singly, or when taken cumulatively with the other matters relied on by the applicants, special circumstances which warrant the release of the applicants on bail. However the longer the applicants are kept in Sirius East in their present condition and transported in shackles in the manner to which they have referred the more pressing is their claim that special circumstances exist which warrant their release on bail." 9 His Honour reserved to the applicants liberty to apply further for release on bail consistently with his reasons for judgment. The applicants did so apply. In a further judgment on 15 March 2000, Goldberg J examined the question of the role of the Court in dealing with a second bail application pursuant to s 21(6)(f)(iv) of the Extradition Act. In Cabal v United Mexican States (No 2) [2000] FCA 295, at [34], his Honour said: "I consider that a further application for bail after an earlier application has been refused requires special circumstances to exist which are circumstances which did not exist at the time the earlier bail application was made. Putting the matter another way, I consider that the special circumstances required in the subsequent or succeeding bail application must be circumstances which are, in effect, a change in the circumstances which existed at the time of the earlier bail application or are circumstances which have arisen since that time." At [37], his Honour said: "I have reached the conclusion that where information or knowledge of circumstances is available to an applicant and such information or knowledge is not used at the time of a bail application to support a particular ground relied upon for the application, it is not appropriate that information or knowledge of circumstances be relied upon as constituting special circumstances for the purposes of a subsequent bail application under s 21(6)(f)(iv)." 10 After considering the applicants' further bail application, Goldberg J also dismissed it on 20 April 2000. His Honour examined the circumstances of the imprisonment of the applicants in Sirius East, as they had changed from the date of his Honour's earlier judgment. In Cabal v United Mexican States (No 5) [2000] FCA 525, at [65], his Honour said: "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." 11 By separate application, to which the Secretary of the Department of Justice of the State of Victoria was a respondent, the applicants sought relief in the nature of orders consequent upon a writ of habeas corpus and declaratory orders, contending that their imprisonment in Sirius East was in contravention of the Extradition Act. On 14 July 2000, in Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 949, I dismissed the application, holding that the applicants were lawfully detained under the Extradition Act. 12 In the meantime, the applicants' application for review of the magistrate's decision was heard by French J in April 2000. On 29 August 2000, his Honour delivered judgment, in which he upheld the magistrate's order. See Cabal v United Mexican States (No 3) [2000] FCA 1204. The applicants filed a notice of appeal from that judgment on 12 September 2000. The appeal was heard by the Full Court of the Federal Court of Australia on four days, beginning on 27 November 2000. The Court has reserved its judgment on the appeal. By notice of motion, filed in the appeal proceeding, on 20 November 2000, the applicants seek to be admitted on bail. Again, the source of the power is s 21(6)(f)(iv) of the Extradition Act, under which the Federal Court of Australia has power, if there are "special circumstances" justifying such a course, to order the release on bail of the applicants on such terms and conditions as the Court thinks fit until the appeal has been heard.

[6]

(iii) order that the person be kept in such custody as the court directs; or (iv) if there are special circumstances justifying such a course, order the release on bail of the person on such terms and conditions as the court thinks fit; until the review has been conducted or the appeal has been heard; (g) if the court to which the application or appeal is made determines that the person is eligible for surrender, within the meaning subsection 19(2), in relation to an extradition offence or extradition offences - the court shall include in its judgment on the review or appeal a statement to that effect specifying the offence or offences." 14 This application for bail is made by motion in the proceeding that is the appeal from French J's judgment on the review of the magistrate's decision. The Full Court has already heard argument and reserved its judgment. By s 21(6)(f), the power of the Court in these circumstances is limited to a power to grant bail until the appeal has been "heard". Unless the word "heard" can be construed as meaning "heard and determined", the Court has no power to deal with the application. 15 Neither the researches of counsel, nor my own, have revealed any authority that assists in determining the meaning of the word "heard" for this purpose. On the one hand, "heard and determined" is a time-honoured phrase. The use of "heard" alone might be taken to suggest that the legislature had made a deliberate choice to permit bail to be granted only until the conclusion of a hearing, and not until judgment was delivered, if that should be delayed for any reason. It must be said, however, that no reason for such choice is apparent. There is no logic to requiring that a person who has been admitted to bail must be incarcerated again once the hearing of an appeal has been completed, whatever the length of time required for the Full Court to deliver judgment on the appeal. That the legislature contemplated that there would be a judgment on an appeal is clear from s 21(6)(g), which requires that the judgment include a statement specifying the offences in relation to which the person concerned is eligible for surrender. 16 It is also necessary to remember that the word "heard" is to be construed in the context of s 21(6). The power to release on bail is one of two powers that may be exercised until the appeal has been "heard". The other is the power in s 21(6)(f)(iii) to order that a person be kept in such custody as the court directs. It would be an absurd result if a person ordered to be kept in custody pending an appeal being heard was required to be released as soon as the hearing was completed, without a determination of it. Such a construction would result in a clear breach of Australia's obligations under various extradition treaties to secure persons whose extradition is requested until the processes consequent upon requests for extradition can be completed. It would therefore not accord with the purpose of the Extradition Act. Section 15AA of the Acts Interpretation Act 1901 (Cth) requires that: "In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object." 17 The word "heard" is used in s 21(6)(f) in relation to an appeal. Section 21(6) also makes provision for the conduct of a review. In relation to a review, the powers to order a person to be kept in custody, and to order the release on bail of a person, are exercisable until the review has been "conducted". The word "conducted" is apt to encompass the finalisation of the review by delivery of judgment on it, and not merely the conduct of a hearing on the review. Again, it would be an absurd result if the powers to order a person to be kept in custody and to release a person on bail could be exercised until the finalisation of a review, but only until the completion of the hearing of an appeal. 18 For these reasons, I am of the view that the word "heard" in s 21(6)(f) must be taken to mean "heard to conclusion", or "heard and determined". Accordingly, I am satisfied that I have power to deal with this application. 19 It is also necessary for me to determine the nature of my task in dealing with an application for bail when a previous application for bail has been made, but in a different proceeding. As I have said, the two previous bail applications dealt with by Goldberg J were made in the proceeding which was the application to review the decision of the magistrate and pursuant to the power granted to the reviewing Court by s 21(6)(f)(iv). This application is made in the proceeding which is the appeal from the decision on the review. The appeal is a separate proceeding. The power I am to exercise is the power given to the Court to which the appeal is made. 20 In his judgment in Cabal v United Mexican States (No 2) [2000] FCA 295, at [22] - [30], his Honour examined the provisions of the common law relating to bail and concluded that it allowed for successive applications for bail to be made by the same person to different courts and to different judges of the same court. At [35], his Honour appears to have accepted that, at common law, successive bail applications could be made on the same grounds, and based on the same facts, as previous bail applications. The rationale for the common law must have been that a grant of bail was an exercise of discretion by a court or a judge. Since it was possible that different courts, and different judges, could exercise the discretion differently on the same facts, successive applications could be permitted. As Goldberg J recognised, however, the introduction of the requirement of "special circumstances" in s 21(6)(f)(iv) brought about a change. As I have said, his Honour held that successive applications to the same Court in relation to the same proceeding for review of a magistrate's decision were permitted, but only with respect to circumstances which had changed since the previous bail application. 21 There can be no doubt that the Court to which an appeal has been made from a judgment given on a review of a magistrate's decision has a fresh power to hear a bail application. This does not mean, however, that an applicant for bail in such circumstances is at large as to the facts to be relied on. It appears to me that, once a determination has been made on the question of "special circumstances", as at a particular date, that determination is binding on the parties to the proceeding as to the circumstances at that date. Even in another proceeding, in my view, the parties remain bound by that determination on the question of "special circumstances". In my view, an issue estoppel exists as to such a determination, so that the facts as they existed at the date of the earlier determination cannot be reopened and grounds which were not argued in respect of the earlier application cannot now be relied upon. Conversely, if a Court has once determined that "special circumstances" do exist, successive applications can be made to different courts or different judges for the exercise of the discretion to grant bail, without the need to re-establish on each such application that "special circumstances" exist. Only if the "special circumstances" have ceased to exist could a Court decline to consider the exercise of its discretion. 22 If my conclusion as to issue estoppel is incorrect, I should nevertheless consider the situation to be as follows. Unless I were to be of the view that the judgments of Goldberg J on the previous bail applications were fundamentally wrong, I should follow them and take the view that they establish that, on the dates on which they were given, the conditions under which the applicants were imprisoned did not amount to "special circumstances" for the purposes of s 21(6)(f)(iv) of the Extradition Act. In my view, the judgments of Goldberg J are correct. 23 For these reasons, I informed counsel for the applicants that I would deal with the application for bail upon the footing that it was incumbent on them to establish that circumstances had changed since 20 April 2000, the date of Goldberg J's judgment on the second bail application, to the extent that it could now be said that the changed circumstances now constitute "special circumstances" justifying the exercise of the discretion whether to grant bail. 24 It is unnecessary for me to examine the authorities in which comments have been made about the meaning of the phrase "special circumstances" in the context of s 21(6)(f)(iv) of the Extradition Act. Goldberg J in Cabal v United Mexican States [2000] FCA 7, at [8] - [18] looked carefully at the authorities. I respectfully agree with his Honour's conclusion at [12] that the test is: "whether the circumstances relied upon are 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."

[8]

27 His Honour then went onto refer to Magna Charta and to the International Covenant on Civil and Political Rights ("the ICCPR"). 28 French J cannot be taken to have laid down a rule of law. It is true that there is a powerful presumption against deprivation of liberty without just cause. It is also true that persons detained pending extradition are to be regarded as persons who have not been convicted of the offences alleged against them, and are to be treated accordingly. Nevertheless, the lapse of time must be viewed in context. In the present case, much of the last two years has been taken up with the period leading up to the hearing by the magistrate, which was extended to suit the convenience of the applicants themselves, and the subsequent consideration of review and appeal proceedings instituted by the applicants. Of course, the applicants have a right to seek review of the magistrate's decision and to appeal from the judgment on that review. Under no circumstances should there be a penalty of imprisonment attached to the exercise of such a right. Nevertheless, it must be recognised that the relevant minister has been prevented from making a decision whether or not to surrender the applicants for extradition by the continued attempts of the applicants to overturn the decision of the magistrate that they are eligible for extradition. At no stage of the proceedings in respect of the review or the appeal could it be said that the Court has been unreasonably slow. The issues raised by the applicants in the review were many and complex. The hearing of the review took eight days. The judgment of French J is 125 pages long and has its own index. It was not unreasonable for a judge of the Court to take eighteen weeks to prepare a reserved judgment on such issues. The appeal was heard a little over two months after the filing of the notice of appeal. In the ordinary course, it is to be expected that the Full Court will give its judgment on the appeal without unnecessary delay. In the circumstances, I cannot regard the time spent by the applicants in prison as a special circumstance justifying the grant of bail.

[10]

The applicants' fears for their safety in Sirius East 30 The applicants contend that Sirius East is a dangerous place, because of the other prisoners held there, and that they fear for their safety while they are held there. It may be accepted that other prisoners held in Sirius East are serving sentences of imprisonment in respect of serious offences, often involving violence. It may be accepted that some of those prisoners suffer from fatal, communicable diseases. In these respects, however, nothing has changed from the previous bail applications. The precise identities of the other prisoners may be different, but the character of Sirius East is the same. Indeed, it is, according to evidence accepted by Goldberg J, a safer unit than other parts of Port Phillip Prison in which the applicants might otherwise be held. 31 Since Goldberg J's second judgment, two specific instances are alleged to have occurred, in which the applicants were or felt threatened. One was an incident on 30 May 2000, in which Mr Pasini told the occupant of a neighbouring cell to turn down the volume of the music he was playing. The applicant of that cell later had a conversation with the two applicants, during which he showed them a weapon with a narrow blade. The prisoner's cell was searched and that weapon and another were located. The prisoner was moved from Sirius East. More recently, on 26 October 2000, in the exercise yard, two prisoners indicated that they wished to speak to Mr Cabal and began to approach him. They were intercepted by prison officers who searched them. One was found to be carrying a pair of scissors. 32 In addition, Mr Cabal deposes to a belief that a fight occurred on or about 20 October 2000 between inmates of Sirius East and Sirius West in an exercise yard shared by them. He swears to having been informed by other inmates of Sirius East that knives were present at the scene. The two men actually involved in fighting were transferred to another unit for punishment, but one of them was returned to Sirius East a few days later. There is also an allegation that narcotic drugs are available within Sirius East. One inmate who was found to be attempting to smuggle drugs in from the visit centre of the prison has been sent elsewhere for punishment and has since returned to Sirius East. Mr Cabal swears that he is aware of drug use in Sirius East because of significant differences in the attitudes and demeanour of

[14]

Allegations of breach of human rights 39 In Cabal v United Mexican States (No 2), at [42], Goldberg J ruled that he would not allow into evidence, for the purposes of the second bail application, evidence relating to Australia's obligations under the ICCPR to persons incarcerated for the purpose of extradition proceedings. The reason for this was that it was open to the applicants to rely on such arguments at the first bail application and they had not done so. 40 The effect of the ICCPR was very much the subject of my judgment in Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 949. In that case, the applicants contended that the word "prison", when used in the Extradition Act, should be construed as relating only to places of detention, and not to places of correction. In part, this argument was based on the proposition that a construction of the word "prison" in the Extradition Act that included correctional facilities would place Australia in breach of its obligations under Article 10 of the ICCPR. For relevant purposes, Article 10 provides: "1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. 2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons; ..." 41 In my judgment, I found that Australia is a signatory to the ICCPR and has ratified it, subject to certain reservations. One reservation, still maintained, is: "Article 10 …In relation to paragraph 2(a) the principle of segregation is accepted as an object to be achieved progressively…" 42 I held that the effect of this reservation was that, at the time when the Extradition Act was passed, Australia did not have an absolute international obligation to ensure the segregation of unconvicted prisoners from convicted prisoners. Because of its expressed reservation, at all relevant times, Australia has not had such an absolute obligation. In providing for the treatment of prisoners awaiting extradition according to the regime for dealing with prisoners awaiting trial, Parliament has complied with Australia's obligations. See Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 949, at [28]. 43 The applicants appealed from my judgment in that case. The Full Court delivered its judgment in the appeal on 30 August 2000. See Cabal v Secretary, Department of Justice (Victoria) 2000 FCA 1227. At [4], the Full Court expressed the view that I was correct in rejecting each of the arguments that had been advanced by the applicants, for the reasons that I stated. The applicants then sought special leave to appeal to the High Court of Australia. On 28 November 2000, the High Court of Australia refused special leave to appeal on the ground that the decision of the Full Court was correct. It must therefore be assumed that it has been established that the failure to segregate the applicants from convicted prisoners is not a breach of Australia's international obligations under the ICCPR. 44 In the meantime, the applicants made a complaint to the Human Rights and Equal Opportunity Commission ("HREOC"). One of the functions of HREOC is prescribed in s 11(1)(f) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOC Act") as follows: "to inquire into any act or practice that may be inconsistent with or contrary to any human right, and: (i) where the Commission considers it appropriate to do so - to endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry; and (ii) where the Commission is of the opinion that the act or practice is inconsistent with or contrary to any human right and the Commission has not considered it appropriate to endeavour to effect a settlement of the matters that gave rise to the inquiry or has endeavoured without success to effect such a settlement - to report to the Minister in relation to the inquiry…" 45 By section 27 of the HREOC Act, HREOC is required not to furnish a report to the Minister in relation to an act or practice until it has given a reasonable opportunity to the person who did the act or engaged in the practice to make oral or written submissions. 46 Some terms relevant to the construction of s 11(1)(f) of the HREOC Act are defined in s 3(1) of that Act as follows: "act means an act done: (a) by or on behalf of the Commonwealth or an authority of the Commonwealth; (b) under an enactment; (c) wholly within a Territory; or (d) partly within a Territory, to the extent to which the act was done within a Territory … Commonwealth enactment means an Act or an instrument … made under an Act, and includes any other legislation applied as a law of the Commonwealth, to the extent that it operates as such a law… Covenant means the International Covenant on Civil and Political Rights, a copy of the English text of which is set out in Schedule 2, as that International Covenant applies in relation to Australia … enactment means a Commonwealth enactment or a Territory enactment … human rights means the rights and freedoms recognised in the Covenant, declared by the Declarations or recognised or declared by any relevant international instrument … practice means a practice engaged in: (a) by or on behalf of the Commonwealth or an authority of the Commonwealth; (b) under an enactment; (c) wholly within a Territory; or (d) partly within a Territory, to the extent to which the practice was or is engaged in within a Territory." 47 By a document dated 9 November 2000, Professor Alice Tay, as a delegate of the Human Rights Commissioner, expressed what she described as "Preliminary Findings" in relation to the applicants' complaint. The precise status of Professor Tay's findings is unclear. It does appear that submissions were made on behalf of the State of Victoria, but not that any were made on behalf of the Australian Government. Professor Tay's preliminary findings are as follows: "1 (i) From 11 November 1998 Mr Cabal and Pasini have been held in detention on remand under the provisions of the Extradition Act 1988 (Cth). (ii) The Commonwealth has retained ultimate responsibility for the conditions under which Mr Cabal and Mr Pasini are detained. In particular, the Commonwealth is responsible for providing humane conditions of detention. (iii) From 4 January 1999 the complainants have been incarcerated in Port Phillip Prison, a state prison operated by Group 4, a private contractor for the Government of the State of Victoria. (iv) The State of Victoria holds remand prisoners in the same units as convicted prisoners and has no separate prisons or facilities for unconvicted prisoners. (v) The complainants are placed in restraints when travelling to and from the prison and the court. (vi) The complainants are strip and cavity searched when travelling to and from the prison and the court. They are also strip searches (sic) when they see visitors at the prison. (vii) The decision to detain the complainants has been reviewed by the Victorian Magistrate's Court and the Federal Court of Australia on three occasions. Both courts have decided that there are no extenuating circumstances that would lead to the complainants being released on bail. 2 The complainants state that they are held with convicted prisoners. The respondent agrees with this claim. Article 10(2)(a) of the ICCPR requires that, except in "exceptional circumstances", an unconvicted person will be segregated from convicted persons. Article 10(2)(a) also requires that an unconvicted person be subject to "separate treatment appropriate to their status" as an unconvicted person. I am of the preliminary view that in the complainants' case, there were not "exceptional circumstances" which left the Commonwealth with no alternative but to detain them at Port Phillip Prison in the Sirius East Wing. I am of the preliminary view that there are other detention facilities in Australia in which the complainants could be detained and kept segregated from convicted prisoners. There is nothing in the Extradition Act 1988 that provides that a complainant must be incarcerated in the same State in which they were apprehended while awaiting extradition. Therefore, I am of the preliminary view that the Commonwealth's action in detaining Mr Cabal and Mr Pasini with convicted prisoners breaches their human rights under Article 10(2) (a). 3 I am also of the preliminary view that the conditions under which Mr Cabal and Mr Pasini are detained, including being held in a maximum security prison where they are held with convicted prisoners and subject to a highly restrictive regime, is inappropriate for their status as unconvicted prisoners. Therefore, I am of the preliminary view that the conditions of detention under which they are held breaches the complainants' human rights under Article 10(1) of the ICCPR. 4 I am also of the preliminary view that being subject to shackling with 12-link or 17-link shackles from before leaving the prison until arriving at the court, being strip and cavity searched, constitutes inhuman and degrading treatment. I am also of the view that this would infringe the complainants' right to be treated with humanity and dignity while in detention. I am of the view that the complainants' unconvicted status makes this treatment all the more serious. I am not satisfied that the shackling and strip and cavity searching is justified by security concerns. Therefore, I am of the preliminary view that this treatment of the complainants also breaches their human rights under Articles 7 and 10(1) of the ICCPR. 5 I am also of the preliminary view that being kept in the cell described as a "cage" on 17 December 1999 for one hour, as agreed by the parties, would constitute an infringement of the complainants' right to be treated with humanity while in detention. Therefore I am of the preliminary view that this breached the complainants' human rights under Article 10(1) of the ICCPR. 6 In relation to the complainants' allegations that they were subjected to pushing, shoving and general violence by the prison officers, in the absence of a response to this allegation, I am of the preliminary view that if the complainants have been subjected to the actions as they allege then this may constitute a breach of Article 10(1) of the ICCPR. 7 Overall, I am of the preliminary view that the actions of the Commonwealth and of the Commonwealth's agent, the State of Victoria, in the incarceration of the complainants in Port Phillip Prison and various aspects of the conditions and treatment they have been subjected to during their detention has breached their human rights under Articles 7 and 10 of the ICCPR." 48 A number of points can be made about the preliminary findings. Perhaps the most important is that Professor Tay appears to have been uninformed as to the authorities. Although the preliminary opinion is dated 9 November 2000, there is no mention in it of my judgment in Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 949 or the judgment of the Full Court on appeal from that judgment in Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 1227. It appears that the applicants' legal advisers did not acquaint HREOC with those authorities. As I have said, they establish that the fact of non-segregation of the applicants from convicted prisoners cannot be relied upon as an infringement of Australia's international obligations under the ICCPR. To the extent that the definition of "human rights" in the HREOC Act depends upon the ICCPR, it depends upon the ICCPR as it applies in relation to Australia; this follows from the terms in which the word "Covenant" is defined. As I found, because of the reservation in respect of Article 10(2)(a) of the ICCPR, Australia's obligations with respect to the segregation of convicted and unconvicted prisoners are not absolute. The applicants' legal advisers do not appear to have informed HREOC of the existence of the reservation. 49 The element of non-segregation from convicted prisoners pervades the preliminary findings. It is the subject of par 2, which is directed specifically to Article 10(2)(a) of the ICCPR. A finding in those terms is unsustainable in the light of the authorities to which I have referred. Non-segregation is mentioned again in par 3, with reference to Article 10(1). Given that Australia does not have an absolute obligation under the ICCPR to segregate convicted and unconvicted prisoners, it is difficult to tell what would be the view of HREOC, preliminary or otherwise, as to Article 10(1), if non-segregation were not to be taken into account. Unless the level of human rights to be afforded to a person depends on whether that person has or has not been convicted of an offence, par 3 amounts to a preliminary finding of breach of the human rights of all prisoners held in maximum security prisons and subject to highly restrictive regimes. A similar comment might be made about par 4, in which the unconvicted status of the applicants is mentioned again, in relation to Articles 10(1) and 7 (which refers, relevantly, to torture and to cruel, inhuman or degrading treatment or punishment). 50 Pars 5 and 6 of the preliminary findings relate to some specific instances of ill treatment of the applicants and express the view that those incidents involve infringements of the applicants' human rights. It is unlikely that such specific instances could constitute "special circumstances" for the purposes of s 21(6)(f)(iv) of the Extradition Act. They are incidents that should not have occurred. Unless they can be shown to be part of the systematic treatment of the applicants, they would not be held to be "special circumstances". 51 In addition, the notion that the Commonwealth has retained ultimate responsibility for the conditions under which the applicants are detained and is responsible for providing humane conditions of detention is at least doubtful, in the light of s 53 of the Extradition Act. 52 In respect of the specific instances of abuse of the applicants, and Professor Tay's preliminary findings about the general treatment of the applicants, the preliminary findings relate to matters which have been held by Goldberg J not to constitute "special circumstances" for the purposes of s 21(6)(f)(iv) of the Extradition Act. The question therefore arises whether the preliminary opinion can have any effect in relation to the determination of the question whether "special circumstances" now exist. It would seem to be an odd proposition that breaches of human rights would not amount to "special circumstances" for the purposes of an application for bail. The question for the Court in a proceeding such as this, however, is not whether breaches of human rights have occurred, but whether "special circumstances" exist. If the conditions in which the applicants are kept and the manner in which they have been treated do not amount to "special circumstances", they cannot be converted into "special circumstances" by reason of the expression of an opinion, or a mere allegation, that they involve infringements of human rights. This Court would not ordinarily undertake the task of determining whether breaches of human rights had occurred in the context of an application for bail under the Extradition Act. At best, it might take account of the standards laid down in human rights instruments, as they apply to Australia, as a guide to what are "broad community standards", in determining whether there are "special circumstances". In many respects, the provision of the ICCPR are expressed in terms so general that any attempt to apply them would be likely to distract the Court from its primary task.

[16]

Events in Mexico relating to the charges 56 The applicants produced a considerable quantity of evidence to the effect that proceedings taken by them in Mexico to quash the charges against them are having an effect. A warrant relating to tax offences alleged against Mr Cabal and a warrant relating to the money-laundering offence alleged against Mr Cabal, as well as warrants relating to the offences alleged against Mr Pasini, have been quashed by a judge in a proceeding known as Amparo. The Amparo proceedings are presently subject to pending appeals, so there is a possibility that the warrants will be reinstated. The effect of quashing the warrants is that, in respect of those offences, if the applicants were to return to Mexico, they would each be required to lodge a bond and would be entitled to be set at liberty. 57 In respect of the financial institution offences and the fraud offences alleged against Mr Cabal, the applicants say that those prosecutions will be abandoned. A prosecutor in Mexico has already abandoned other charges (ie. charges not the subject of any extradition request) against Mr Cabal. According to the applicants, the reason for the abandonment of these other prosecutions is acceptance by the prosecutor that there is no evidence that Mr Cabal was in a decision-making position within the bank with respect to the decisions made about the relevant transactions. The applicants say that the charges against Mr Cabal, which are the subject of the extradition requests, also depend upon allegations that Mr Cabal was a member of the high credit committee of the bank, or in a position to influence the decisions of the high credit committee of the bank, with respect to which the offences are alleged to have been committed. It has been accepted, so they say, for the purposes of the prosecutions that have been terminated, that Mr Cabal was not a member of the high credit committee of the bank, and was not in a position to influence its decisions. Further, the abandoned prosecutions related to alleged offences on dates which span the majority of the charges against Mr Cabal in respect of which extradition is sought. Indeed, one of the abandoned prosecutions related to an offence alleged to have been committed on the same day as some of the alleged offences in respect of which extradition has been requested. The applicants say that, if Mr Cabal was not in a relevant decision-making position for the purposes of the abandoned prosecutions, he was not in such a position for the purposes of the alleged offences in respect of which extradition is requested. 58 Leading counsel for Mexico objected to the introduction of this evidence. She said that she had not had the opportunity to obtain instructions as to whether Mexico desired to produce any evidence in relation to the abandoned prosecutions and the effect of the abandonment, if any, on the alleged offences relevant to this proceeding. Counsel for the applicants said that the only relevance of this evidence was to establish that the applicants have great confidence that the charges against them will all be quashed in due course. This great confidence was said of itself to constitute a changed circumstance, and to be a substantial factor in reducing the risk of flight if the applicants were to be released on bail. 59 The applicants have always expressed great optimism that the charges against them would eventually fall away. They have claimed that they are victims of political persecution and that a change of government in Mexico would lead to their complete exoneration. The change of government has taken place, from 1 December 2000, but has so far not led to any developments in relation to the charges the subject of the extradition requests. The expressed optimism of the applicants appears now to be based less on political developments and more on the legal developments to which I have referred. 60 To the extent that there has been a change of the basis for optimism, and an increase in the confidence of the applicants that they will be exonerated, there has been a change in the circumstances since the last bail application dealt with by Goldberg J. I am not satisfied, however, that the changed circumstances amount to "special circumstances" for the purposes of s 21(6)(f)(iv) of the Extradition Act. As a matter of legal formality, the applicants still face all of the charges the subject of the extradition requests. Mexico does not concede that they will be exonerated in respect of any of those charges. It is not appropriate for a court in a country from which extradition is requested to investigate the likelihood of acquittal of charges in respect of which extradition is sought. It would be a rare situation, in my view, that confidence on the part of a person whose extradition is sought of exoneration in respect of the charges the subject of the extradition request would amount to "special circumstances".

[17]

The effect on the Cabal family 61 Teresa Pasini Cabal is married to Mr Cabal. They have four children, ranging in age from sixteen to nine. An attempt was made to establish that the family was suffering serious psychological damage by reason of the continued incarceration of Mr Cabal. Jeffrey Elwood Cummins, a consulting clinical and forensic psychologist, was called to give evidence on behalf of the applicants. He has interviewed Mr Cabal on a number of occasions, as well as Teresa Cabal and the children. The family is steeped in a culture in which the husband and father is expected to play a dominant role. While Mr Cabal is imprisoned, he is unable to perform this role. Teresa Cabal has had the assistance of a nanny, who has left recently. Teresa Cabal is having difficulty coping with the children without the nanny, and in the absence of her husband. The children miss their father. They are ambivalent about visiting him. On the one hand, they miss him when they do not see him. On the other, they become upset by his circumstances. The children appear to engage in activities normal for their ages, particularly sporting activities organised by their schools. They are unsettled, because of the uncertainty about their future in Australia, and consequently are having difficulty making choices about school subjects or activities for the coming year. There is apparently some tension between the desire of the children, or some of them, to engage in social activities of the kinds that their school-mates engage in, and the "Spanish-Mexican" culture of the family, which seeks to impose a greater strictness on them. The absence of both Mr Cabal and the nanny is causing problems for Teresa Cabal. In the children's eyes, she is assuming the role of head of the family, a position which ought to be occupied by Mr Cabal. She is also having problems coping with discipline. In the view of Mr Cummins, "she has effectively reached her wit's end" and presents with symptoms of agitation and anxiety, as well as from some symptoms of depression. Mr Cummins diagnosed her as suffering from reactive agitation and generalised anxiety disorder. 62 In my view, the difficulties suffered by the Cabal family are not significantly greater than those suffered by most families from which one parent is in prison. In such situations, there is always likely to be difficulty in maintaining the standards of discipline which are a normal part of the family life. There is also likely to be a sense of deprivation. Children are likely to miss the imprisoned parent, but also to become upset by that parent's circumstances if they visit. These effects will always vary and, to some extent, they will depend upon the strength and nature of the culture in which the family has lived. I do not think that the variations produced by the culture of the Cabal family is such as to amount to "special circumstances". To the extent to which the children are troubled by the uncertainty of the future, this must also be the fate of the family members of any person in respect of whom extradition is sought.

[18]

The psychological state of the applicants 63 Mr Cummins also gave evidence about the psychological state of the applicants. He has interviewed them on a number of occasions whilst they have been in Sirius East. He has diagnosed each of them as suffering from reactive agitated depressive disorder. This condition is distinct from chronic depression or anxiety, which Mr Cummins described as "a major depressive disorder or a major anxiety disorder". The condition suffered by the applicants is a reaction to their incarceration and their general predicament. Both applicants have suffered from it for some time, although, as time passes and they remain in prison it has worsened. In the case of Mr Cabal, Mr Cummins described his condition as "moderately severe". He expressed the view that Mr Pasini is now "severely depressed". 64 In cross-examination, Mr Cummins conceded that a reactive agitated depressive disorder is the sort of condition likely to be suffered by people who are incarcerated, especially by people sentenced to imprisonment or remanded in prison in respect of "white-collar" offences. Such people are forced to associate closely with prisoners with violent tendencies, drug addictions, and other problems and attitudes not normally encountered by those who have committed, or who are alleged to have committed, "white-collar" crimes. In the case of Mr Cabal, I am satisfied that his condition is within the normal range liable to be suffered by someone of his background incarcerated in the way that he has been. Mr Cabal is a dominant personality. Of the two applicants, he is the leader. He has taken charge of dealing with the lawyers who represent the applicants in their endeavours to secure their freedom and meet the charges levelled against them in Mexico. 65 Mr Pasini, on the other hand, is a follower. Mr Cummins described him as "absolutely crushed by his current circumstances". Mr Pasini feels that he has been caught up in events beyond his control. He feels left out of the process of instructing lawyers. He resents the fact that he is treated in the same way as Mr Cabal, when Mr Pasini is charged with a smaller number of offences, and his alleged offences are subsidiary to some of those alleged against Mr Cabal. Because of his personality, and because of his lesser role, Mr Pasini is more drastically affected by the condition identified by Mr Cummins. He continues to attend to his own basic needs, so far as prison discipline permits him to do so. He has, however, withdrawn from activity to a considerable degree. He tends to spend much of each day lying on his bed in his cell, even when the cell is open and he is free to move around the common areas and the exercise yard. He has entertained ideas of suicide, although Mr Cummins says he has done so only to a "minimal" extent. 66 In my view, the psychological condition of Mr Cabal does not constitute "special circumstances". I am persuaded, however, that the more severe condition of Mr Pasini does amount to "special circumstances", for the purposes of s 21(6)(f)(iv) of the Extradition Act.

[20]

The discretion whether to grant bail 70 If "special circumstances" exist for the purposes of s 21(6)(f)(iv) of the Extradition Act, it is then necessary for the Court to consider whether, in its discretion, it should admit a particular person to bail. This involves balancing the risk that a person on bail will abscond against the personal circumstances of the person, in the light of the presumption that an unconvicted person should not be deprived of his or her liberty without good reason. If I had decided that "special circumstances" did exist in the case of Mr Cabal, like Goldberg J in Cabal v United Mexican States [2000] FCA 7, at [108], I would not have exercised my discretion in favour of granting bail to him. Mr Cabal has a considerable history of living as a fugitive. He and his family have assumed false identities. He has been able to obtain identity documents and travel documents in those false identities, apparently without great difficulty. The charges against him are serious and involve allegations that he has committed offences involving extremely large amounts of money. In the past, he has certainly had access to substantial financial resources. It is to be expected that the time that will elapse before the Full Court gives its judgment in relation to the appeal will not be inordinately long. In my view, the risk of Mr Cabal absconding if admitted to bail is unacceptable. 71 The risk of Mr Pasini absconding is significantly less. As I have said, the offences with which he is charged are fewer in number than those of Mr Cabal, and are subsidiary to those alleged against Mr Cabal. He has much less at stake. 72 Shortly prior to the arrest of Mr Cabal on 11 November 1998, someone telephoned the home in which the Cabal family was living, and asked to speak to Mrs Cabal, using her real name. Alerted by this, one of Mr Cabal's children rang Mr Pasini. Instead of taking flight, Mr Pasini went to Mr Cabal's home, to investigate. 73 Mr Pasini has also lived as a fugitive, under assumed identities, and has been in possession of passports and other identity documents in such assumed identities. I am satisfied, however, that he has behaved in this way primarily because of the initiative of Mr Cabal and using the resources available to Mr Cabal. Mr Pasini is Teresa Cabal's brother. The family relationship has been a powerful factor in his behaviour. Whilst living in Australia, he has been employed by Mr Cabal in a business owned and managed by Mr Cabal. In my view, the risk of Mr Pasini absconding whilst on bail is quite low, if Mr Cabal remains in prison. It can hardly be to Mr Cabal's advantage in dealing with the charges against him if he is found to have facilitated the flight of Mr Pasini. I am satisfied that Mr Pasini would need both the initiative and the resources of Mr Cabal to organise an escape. If stringent conditions are imposed, the likelihood of this occurring will be diminished significantly. 74 In deciding to admit Mr Pasini to bail, I have been influenced to a high degree by the evidence of Margaret Mary Davies. She first met Teresa Cabal because their sons were at school together. In about November 1998, Ms Davies met Marco Pasini and his spouse, Montserrat Pasini. She was motivated by a Christian desire to assist the Pasinis when they were placed in immigration detention. She has since formed a close friendship with Montserrat, who drives a car lent to her by the Davies family and visits the Davies home at 190 Church Street, Brighton, regularly for meals. Ms Davies has also befriended Mr Pasini. She accompanies Montserrat on two or three occasions each week to visit Mr Pasini in prison. Ms Davies and her husband, Michael John Hunter Davies are prepared to act as sureties for Mr Pasini and, if necessary, to put up their house as security. Their house is said to be worth in excess of a million dollars. It has been their family home for some years. Of their three children, one who is now an adult and one who is at school live in the house with them. 75 I have been very impressed by Ms Davies. She is a sensible person, who does not appear to me to be a party to any arrangement with Mr Cabal, or to have been carried away by any romantic notions about the plight of Mr Pasini. She does believe in Mr Pasini's innocence and accepts that he has been caught up in events beyond his control. She is, however, level-headed enough to have considered the question whether she has been duped by Mr Pasini. The fact that Ms Davies and her husband have sufficient confidence in the likelihood that Mr Pasini will not abscond whilst on bail has weighed heavily in my decision to admit him to bail. 76 Accordingly, I propose to admit Mr Pasini to bail, subject to a number of stringent conditions.

[21]

The conditions of bail 77 I received very little assistance from counsel on the question of conditions to be attached to any grant of bail. I have therefore composed a list of conditions which I believe are appropriate to the particular circumstances of Mr Pasini's case. To some extent, they are based on the conditions imposed by Cooper J in Holt v Hogan (No 1) (1993) 44 FCR 572, at 586. The conditions I propose in relation to Mr Pasini are as follows: (a) That he enter into a recognisance in the sum of $500,000.00 in a form to be approved by the Director of Public Prosecutions with Margaret Mary Davies and Michael John Hunter Davies as sureties, the amount to be secured by a charge on their house and land at 190 Church Street, Brighton, Victoria. (b) That he surrender all passports and other travel documents, whether in his own name or in any other name, and whether genuine or otherwise, in his possession or control. (c) That he not carry, or have in his possession or control, any document of identity other than a document of identity in his own name. (d) That he not apply for, or otherwise seek to obtain, any passport or other travel document, whether in his own name or any other name, and whether genuine or otherwise. (e) That he reside with his spouse, Montserrat Pasini, at her home at 7 Harold Street, Middle Park, Victoria or at such other address as may be approved in writing by the Director of Public Prosecutions, such approval to be obtained prior to taking up such residence. (f) That he not travel outside a radius of fifty kilometres from the Commonwealth Law Courts building at 305 William Street, Melbourne, Victoria. (g) That he not attend within one kilometre of the Melbourne Airport at Tullamarine, Victoria, or any other airport or airfield, or attend at any port of international departure. (h) That he refrain from communication, direct or indirect, with Carlos Cabal Peniche, his spouse, Teresa Pasini Cabal, and their children. (i) That he refrain from receiving from Carlos Cabal Peniche, or from Teresa Pasini Cabal, directly or indirectly, any money, property or other benefit, other than a weekly living allowance not exceeding $750.00. (j) That he report twice daily, once between the hours of 6.00 am and 8.00 am, and once between the hours of 6.00 pm and 8.00 pm, to the Officer-in-Charge, Australian Federal Police, 383 Latrobe Street, Melbourne, Victoria, or to some other person at some other place agreed in writing by the Director of Public Prosecutions. (k) That he attend at the Federal Court of Australia on the occasion of the delivery of judgment by the Full Court of the Federal Court of Australia on the applicants' appeal in proceeding no. V 700 of 2000 and surrender himself into the custody of the Court. 78 One of the weaknesses of any set of bail conditions is that, in the absence of constant surveillance, there is no guarantee that the person to whom bail is granted will observe the conditions. The force of the conditions, however, is that the person on bail knows that any breach of any condition which comes to light is likely to result in a return to custody. Many of the conditions that I propose to impose in this case are in that category. Mr Pasini must be aware that, if he acts in breach of any of them, he is at risk of a return to Sirius East. 79 The conditions I propose also trespass very significantly upon Mr Pasini's liberty. In my view, they are justified in the present case. I have been troubled about condition (h). I recognise that it is a harsh thing to do to prevent a brother and sister having contact with each other and to prevent contact between an uncle and his nieces and nephews. This is especially so for Christians at Christmas. It appears to me, however, that Mr Pasini will be unlikely to abscond whilst on bail unless his escape is organised and financed by Mr Cabal. For this reason, I have endeavoured to frame conditions that will prevent contact between Mr Cabal and Mr Pasini. If that object is to be achieved, indirect communication must be prevented. The most likely form of indirect communication is through the Cabal family. I am aware of the role played by Mr Cabal's son in warning Mr Pasini that the assumed identity of the family had been revealed on 11 November 1998. I have also framed condition (i) with a view to ensuring that Mr Pasini does not receive from Mr Cabal sufficient funds to facilitate flight. The evidence before me is that Montserrat Pasini currently lives on a weekly allowance paid to her by Teresa Cabal. I do not know the amount of that allowance. I have endeavoured to fix a ceiling sufficient to enable the Pasinis to pay rent and live in reasonable comfort. If I have underestimated the requirements, liberty to apply can be exercised on proper material. 80 With respect to the reporting condition, condition (j), I am of the view that once daily reporting is inadequate. Normal bail conditions impose a requirement of reporting once between a designated hour in the morning and a designated hour in the afternoon on each day. The problem with this is that, if the person concerned is minded to abscond, the length of time which elapses between a report one morning and a realisation that there has been no report after the end of the afternoon on the following day is too great. I therefore propose reporting in both morning and evening. The hours I have nominated would be such as to enable Mr Pasini to engage in ordinary daily activities, including employment if he is permitted by law to work. If the arrangements I propose with respect to reporting are not practicable, they can be altered by the Director of Public Prosecutions.

Cabal v United Mexican States

At a glance

Court

Decision date

Before

Source

Judgment (26 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (9)

Cited By (2)