Cabal v United Mexican States

Federal Court of Australia|2000-04-20|Before: Goldberg J

Introduction 1 On 17 December 1999 Ms L A Hannan, a Magistrate in Victoria, determined pursuant to s 19(9) of the Extradition Act 1988 (Cth) ("the Act") that the first applicant ("Mr Cabal") and the second applicant ("Mr Pasini") were persons eligible for surrender to the first respondent ("Mexico") in relation to a number of extradition offences. 2 The Magistrate, pursuant to s 19(9) of the Act, by warrant, ordered that the applicants be committed to the Melbourne Assessment Prison or Port Phillip Prison to await, in relation to the offences the subject of her determination, surrender under a surrender warrant or release pursuant to an order under s 22(5) of the Act. 3 On the same day as the Magistrate issued the warrants, the applicants filed an application in the Federal Court pursuant to s 21 of the Act for a review of the Magistrate's decision to commit the applicants to prison. In that application the applicants sought by way of interim relief orders pursuant to s 21(6)(f)(iv) of the Act that they be released on bail pending the review of the Magistrate's decision. I heard that application for interim relief on 22 and 23 December 1999. On 4 January 2000 I published my reasons for dismissing the application for bail by each of the applicants: Cabal v United Mexican States [2000] FCA 7. I also ordered that liberty be reserved to the applicants to apply further for release on bail consistently with my reasons for judgment. In par 112 of my reasons I said: "As I have observed earlier in these reasons I am reserving liberty to the applicants to renew their application for bail if the conditions under which they are kept in Port Phillip Prison deteriorate or if the conditions under which they are transported and detained while outside the prison, whether in shackles or otherwise, are such as to warrant further consideration." Background 4 On 9 February 2000 the applicants filed a notice of motion for orders pursuant to s 21(6)(f)(iv) of the Act that they be released on bail until the review of the Magistrate's decision has been determined. The applicants filed and served a number of affidavits in support of that motion which related, inter alia, to issues other than those in respect of which I had reserved liberty to apply. On 15 March 2000 I ruled (Cabal v United Mexican States (No 2) [2000] FCA 295). that I would not allow into evidence, for the purpose of the application for bail, affidavits which were either sworn, or prepared for the purposes of swearing, prior to the conclusion of the earlier bail hearing or evidence relating to: · The applicants' personal and business circumstances and activities prior to the earlier bail hearing; · Refutation of Mr Kelly's evidence that Sirius East is a safe environment and that the applicants were transferred there for their own protection; · Refutation of the evidence that the decision to place the applicants on the high security transport list was based on the reason that Mr Cabal had offered a prisoner money to assist an escape; · The applicants' state of mind when they determined to remain outside Mexico and the reasons why they sought to avoid arrest by the Mexican authorities; · The contention that the applicants' legal and political status in Mexico is now significantly different than was the position in 1994, which position would be undermined if they chose to abscond; · Australia's obligations under the International Covenant on Civil and Political Rights to persons incarcerated for the purpose of extradition proceedings; · The conditions under which the applicants were kept in custody prior to the earlier bail hearing; · The submission that Mr Cabal was not at relevant times a director or employee of Banco Union. 5 The applicants rely upon a number of circumstances which have arisen since 23 December 1999 which they submit constitute special circumstances within s 21(6)(f)(iv) of the Act warranting the Court exercising its discretion to grant bail. Those circumstances, generally, fall into the following categories: · multiple, unnecessary and invasive cavity searches; · painful shackling and manacling; · transport in a van without windows and whose inside walls are smeared with excrement; · being placed with prisoners who are seriously ill with communicable diseases; · constant frustration of, and interruption of, their communications with family and legal advisers; · members of their families have been exposed to unpleasant scenes at the prison; · pointless, petty and cruel implementation of rules designed to deny them the most basic human exchanges with their wives and families during visits; · unexplained and discriminatory cancellation of medical examinations; · being confined constantly, and in close quarters, with prisoners introduced into the Sirius East Unit since 23 December 1999, who have been convicted of serious crimes, including murder, armed robbery and rape. It is alleged that two of these persons have been involved as aggressors in male rape in Sirius West. 6 In the reasons which I published for dismissing the earlier bail applications by the applicants I considered the legislative history of s 21(6)(f)(iv) of the Act and examined a number of the authorities which had considered the content of the expression "special circumstances" found in s 21(6)(f)(iv). I do not propose to repeat those observations and I incorporate them by reference in these reasons. As I noted in those earlier reasons, I approach the question whether special circumstances exist for the purposes of s 21(6)(f)(iv) by asking, consistently with the authorities referred to in those reasons, whether the circumstances relied upon by the applicants 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. It is also important to emphasise, having regard to the issues presently before me and as I observed in my earlier reasons, that the determination whether "special circumstances" exist must be considered by reference, not only to circumstances which are "special" in the sense to which I referred in my earlier reasons, but which also must take into account broad community standards. 7 I also repeat that a court should take an overall view of the circumstances which attend upon an application for bail when considering whether there are relevant special circumstances. As I observed earlier, individual or special circumstances may not, of themselves, be special in any relevant way but an accumulation of non‑special circumstances may well build up into a special circumstance or into special circumstances. There may also be an inter‑relationship between different circumstances which will heighten the significance of each individual circumstance. 8 If special circumstances be found, it is then necessary to determine whether, as an exercise of discretion, bail should be granted: Bertran v Minister for Justice (1999) 165 ALR 155 at 163. As Cooper J pointed out in Holt v Hogan (No 1) (1993) 44 FCR 572 at 580: "If special circumstances are identified, then the next question is whether as a matter of discretion bail ought to be granted. The primary consideration in the exercise of this discretion is whether the circumstances of the applicant and the appropriate conditions of bail are such as to satisfy the Court with a reasonable level of certainty that the applicant will remain available for extradition in the event that any appeal by unsuccessful." 9 It is necessary to consider, in some detail, the factual basis underpinning the applicants' further application for bail as some of the matters relied upon represent a continuum of circumstances which existed and were operative on 23 December 1999. 10 But before doing so, it is important to note that I am not considering an application for bail at large, but rather an application which requires a consideration of what has occurred since 23 December 1999 and whether any circumstance which has arisen since that date is an exacerbation of a circumstance which existed prior to that date. I am not considering de novo, or afresh, matters which were canvassed before me on the earlier bail application or matters which had arisen before the earlier bail application and could have been the subject of submissions on that application. Some of the applicants' submissions fall into these categories. For example, the applicants submitted that as they had not been convicted of any crime it was inappropriate that they should be housed with convicted criminals and that they should not be detained in a prison environment. That issue was canvassed at the earlier hearing as was the nature of the general conditions existing in the Sirius East Unit of Port Phillip Prison. The issue to be addressed is whether there have been any changes in circumstances since 23 December 1999 or deterioration in conditions which existed at that time which qualify as "special circumstances" for the purposes of s 21(6)(f)(iv) of the Act. 11 The applicants filed affidavits by themselves, their wives, their solicitors, an inmate of Sirius East and Mr Cummins, a psychologist. Mexico filed affidavits by Mr Dennis Roach, the Manager of the Security and Emergency Service Group ("SESG") of CORE the Public Correctional Enterprise and Mr Shane Kelly, the Head of Operations at Port Phillip Prison. In relation to a number of incidents deposed to by the applicants and their witnesses, Mr Roach and Mr Kelly responded on the basis of information and belief, the information being based on what they had been told by prison officers and SESG officers. The applicants submitted that wherever there was conflict between the evidence of the applicants and evidence on behalf of Mexico I should accept the evidence of the applicants as it was direct evidence and not given on the basis of information and belief. Although a number of matters are controversial between the parties I do not consider that any issue of credit or credibility of witnesses arises. The applicants submitted that Mr Kelly did not take a fair approach to questions put to him in cross‑examination, but that criticism was not warranted. In a number of respects Mr Kelly gave evidence about matters which were later shown to be incorrect but I do not consider that any issue of credit arises as a result of these inconsistencies. I do not consider that he exhibited any bias or animus against the applicants. Insofar as it is necessary to consider competing versions of incidents which have occurred, I undertake that consideration when considering the specific incidents.

Conditions under which the applicants are held in prison 12 A number of the matters of which the applicants complain have occurred not because of any claim that discriminatory action or conduct has been taken against the applicants but rather as an incident of the applicants being detained in prison. An example is what occurred on 1 January 2000 when Mrs Cabal went to the prison with three of her children to visit Mr Cabal. When they arrived at the reception area they saw that a female visitor had been detected by prison officers attempting to take syringes and medicine bottles into the prison. The woman was arguing with the prison officers and a loud altercation occurred between the woman and the prison staff which was observed by Mrs Cabal and her children. Mrs Cabal said that the prison staff were threatening to lock down the prison and her children were frightened that they would not be able to leave. The children, understandably, were very disturbed by the incident. Mr Kelly said that he had made enquiries about the incident which disclosed that prison staff and the visitor were not yelling at each other nor were prison staff threatening to lock down the prison. I accept Mrs Cabal's evidence on this incident; it is an eye witness account. As a result of the incident Mr Cabal's two youngest children have not visited him since. It was unfortunate that the children observed the incident but it did not occur as a result of any particular action or conduct taken in relation to Mr Cabal or Mr Pasini. It was an incident which occurred in the course of the general running of the prison. Although it has had an indirect effect in relation to Mr Cabal it does not constitute a relevant "special circumstance". 13 Another incident involving one of Mr Cabal's children occurred on 7 February 2000 when Mrs Cabal visited the prison with her son and her daughter Sophia. Sophia was wearing a hairclip which registered electronically as she passed through security gates. A prison officer asked her to remove the hairclip and Mrs Cabal told the officer that Sophia had worn the hairclip on almost every occasion on which she had visited the prison and it had not been a problem. The prison officer insisted that Sophia remove the hairclip and this caused Sophia significant distress. Mr Kelly said that prison staff had on a number of occasions earlier asked Sophia not to wear the metal hairclip but Mrs Cabal denied that this had occurred. In the event Sophia removed the hairclip and it was placed in a locker whilst she visited her father. She has not visited her father since this incident. I accept Mrs Cabal's evidence that she and her daughter had not been previously warned about wearing the hairclip. Although the incident was unfortunate and distressing for Mr Cabal's daughter, Sophia, it occurred in the context of a general prison security issue. Even accepting, as Mrs Cabal said, that on other visits her daughter had entered the prison wearing the same type of hairclip I do not consider this to be discriminatory conduct or action directed against Mr Cabal. It was a matter which was incidental to security checks generally made in the prison. It does not a constitute relevant "special circumstance". 14 Complaint is made of what are said to be multiple, unnecessary and invasive cavity searches. As I understood the issue, the complaint was rather about cavity inspections rather than cavity searches. After each visit to the applicants, whether social or professional, the applicants are strip searched and undergo an inspection of various parts of their body. No intrusion is made by officers into cavities; there is only an inspection. Because the applicants from time to time may have more than one visit in a day from their families and their professional legal advisers, the strip search and inspection procedure will, on some days, occur on more than one occasion. The applicants said that there is no suggestion that they are involved with drugs. They said they are in extradition detention and they object to the strip searches and cavity inspections. Port Philip Prison is a high security prison and every inmate of the prison is strip searched and undergoes a cavity inspection after every visit, whether personal or professional. The applicants are not the subject of discrimination in this respect. I accept that the applicants find these procedures embarrassing and humiliating but that factor does not constitute a relevant "special circumstance". In any event the nature of the strip searching procedure has not changed from that which occurred prior to 23 December 1999. 15 Mr Cabal has complained that he has been unable to sleep because of loud "heavy metal" music played by another inmate. Mr Kelly said that no complaint has been made by Mr Cabal. Although this is a matter of irritation to Mr Cabal, it is a matter to be dealt with, in the first instance, by the prison authorities. It appears that the prison authorities are able to deal with such a situation as Mr Kelly said that complaints about loud music are usually dealt with by prison staff, who can overhear the music, tell the inmate to turn the music down or if the loud music persists isolate power to the inmate's cell. This complaint by Mr Cabal is not a relevant "special circumstance". 16 Mr Cabal has been denied the opportunity to use a plastic chair with a back rest whilst he is participating in a visit in the Visit Centre. Such chairs are approved for use by prisoners with medical certificates. During the visit on 1 January 2000 Mr Cabal was reminded by a prison officer in a rude manner and without reason that he was still unable to use the plastic chair. These are matters of annoyance and irritation to Mr Cabal but do not constitute a relevant "special circumstance". 17 Another matter of which complaint is made by the applicants is that their cells are searched on a weekly basis. They contend that this is a recent occurrence. Mr Kelly said that the cells of inmates on the high security list are included in the allocated search list on a weekly basis and that this has been the case for approximately twelve months. Whether or not this is a recent occurrence I do not consider that this matter is a relevant "special circumstance". It is part and parcel of general prison procedure and it is not directed specifically at the applicants. 18 These incidents and circumstances to which I have referred, and a number of other separate and discrete incidents which have occurred, are no doubt causing the applicants irritation, frustration, humiliation and inconvenience. They have arisen out of, or are related to, circumstances which occur as part of the every day running of the prison. They are not matters which arise out of incidents or circumstances directed against Mr Cabal or Mr Pasini. I have considered them separately but I also consider that when they are taken cumulatively they are not sufficiently 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. 19 Both Mr Cabal and Mr Pasini complain that their living conditions and general treatment are identical to the living conditions and general treatment of all the other prisoners detained in Sirius East. They refer, for example, to the food they eat, the times at which they eat, the place at which they eat, the prison visit uniform they wear, the strip search procedures they have to undertake, their recreational facilities and the telephone and visit facilities available to them. I refer to the issues relating to the telephone and visit facilities later in these reasons. Consistently with principle, I do not regard these matters to which the applicants refer as constituting relevant special circumstances. Although the applicants have not been convicted of any offence, it is an inevitable part of being detained in prison under the provisions of the Act that they have to conform to the particular procedures laid down by the prison authorities for the proper and secure running of the prison. The applicants find a number of the procedures to which they are subject, together with the other prisoners, demeaning and humiliating but the evidence does not disclose that they are singled out for special or particular treatment in any of these respects. The fact that they are subjected to the same prison regime as the other prisoners detained in Sirius East, even though they have not been convicted of any offence, is not a relevant "special circumstance" as that is the general position one would expect to occur when a person is in custody pending extradition proceedings. 20 In general response to the applicants' submissions about the conditions under which they are detained in Port Phillip Prison, counsel for Mexico referred to s 53 of the Act which provides: "The laws of a State or Territory with respect to: (a) the conditions of imprisonment of persons imprisoned in that State or Territory to await trial for offences against the law of that State or Territory; (b) the treatment of such prisoners during imprisonment; and (c) the transfer of such persons from prison to prison; apply, so far as they are capable of application, in relation to persons who have been committed to prison in that State or Territory under this Act." Mexico relied upon this provision in support of the submission that the fact that in Victoria persons on remand are detained in the same facility as convicted prisoners does not, of itself, constitute a special circumstance. The applicants submitted that s 53 of the Act does not justify the matters of which they complain as there are no laws which permit Port Phillip Prison to expose the applicants to dangerous prisoners or to persons with serious communicable diseases or to conduct which they say is humiliating, such as strip searches. The applicants rightly point out that one has to distinguish between policy and practices which are implemented in the prison and the law relating to the conditions of imprisonment. 21 I do not consider that s 53 of the Act is of any assistance in resolving the issues in controversy between the parties. Substantially, the matters of which the applicants complain are not matters which are dictated or required by statutory provisions but are rather matters which arise at an administrative level within the prison as to the manner in which security and prison discipline is to be maintained. In any event, as a matter of principle, the fact that the law of a State may impose some condition as to the imprisonment of persons does not mean that, in an appropriate case and in relevant circumstances, it may not become a relevant "special circumstance".

Telephone calls 22 There was considerable evidence about the ability Mr Cabal and Mr Pasini have to make telephone calls within and outside Australia and the circumstances under which those telephone calls are made. The procedure adopted for telephone calls for prisoners is that they have to lodge a written request with the prison authorities that they be allowed to telephone a particular person at a particular number. The prison authorities then telephone that person at that number and ask that person whether he or she is prepared to accept telephone calls from the prisoner. If the answer is in the affirmative then the prison telephone system (called "Arunta") is programmed with that telephone number and the prisoner can make the telephone call to that person at that number by pressing predetermined numbers on the telephone by reference to an identification number allocated to that prisoner. In the ordinary course prisoners are allowed to place ten telephone numbers on their list of calls which they wish to make. Because of Mr Cabal's need to make a considerable number of telephone calls to a considerable number of persons he has been allowed to submit two sets of ten numbers for telephone calls rather than the one set of ten telephone numbers normally given to prisoners. 23 Although Mr Cabal and Mr Pasini complain about the restrictions and limitations placed upon their ability to make telephone calls, they have the opportunity, in Mr Cabal's case to call twenty persons, and in Mr Pasini's case to call ten persons without inhibition so long as they keep within the financial limits currently imposed by the prison. Initially the number of telephone calls which could be made were unlimited but since a date in January 2000 the prison authorities have imposed a limit of a maximum amount prisoners can deposit in their telephone account of $50 per month. The decision to limit prisoners' telephone calls was made as a result of a concern that the accounts into which the money for the telephone calls was lodged might be used for money laundering purposes. It is not suggested that Mr Cabal and Mr Pasini have so used their telephone accounts. Because of Mr Cabal's particular situation he has been allowed, and continues to be allowed, to place $400 into his telephone account per week. Mr Pasini is allowed to place $50 per week into his telephone account. Since 1 September 1999 and the end of March 2000, according to the telephone records produced by Mr Kelly, Mr Cabal has made in excess of 2600 telephone calls and Mr Pasini has made in excess of 1600 telephone calls. These calls were both personal and professional. Some of the calls were interrupted and cut off due to faults in the system but a substantial number of the calls appear not to have been interrupted. I do not regard the issue of the telephone calls as a quantitative issue but I refer to the number of telephone calls made to demonstrate that the applicants have had ready access to the telephone. 24 A number of incidents have occurred which have caused the applicants difficulties in using the telephone. Mr Cabal requested that his secretaries in Mexico, Marie Carmen Mezquita and Elba Ruiz, be placed on his list of authorised telephone calls. It took a considerable time for these persons to become authorised for Mr Cabal to call. Mr Kelly said that prison records disclosed that initially prison staff could not contact these persons because they could not speak English. The prison staff were subsequently able to contact them and they are now both on Mr Cabal's authorised telephone list. Mr Cabal said that both his secretaries could speak English and there was no reason why they could not be contacted immediately. I have some concern about the long period of time it took to have these two persons placed on Mr Cabal's authorised telephone list. It is important for persons in the position of Mr Cabal and Mr Pasini to be given the opportunity to contact those persons who are necessary to enable them to prepare their legal cases in relation to their Mexican proceedings and their Australian proceedings. Although I have some reservations about the prison's explanation as to why it took so long for these persons to be placed on Mr Cabal's authorised telephone list, the evidence does not suggest that there was any deliberate steps taken to disadvantage Mr Cabal. Both persons have now been on Mr Cabal's authorised telephone list since February 2000. 25 The applicants also complain that from time to time telephone calls have been suddenly terminated due to a fault in the telephone system. Mr Kelly said that there have been ongoing issues with the system and that Telstra is presently upgrading the system. It was not suggested that the faults only occurred with the applicants' telephone calls. 26 All personal telephone calls made by prisoners are monitored, in the sense that they are recorded but not necessarily listened to. Mr Kelly said that calls which are registered, or noted, as being telephone calls to legal advisers are not monitored or recorded. However it became apparent from the telephone records which were produced by Mr Kelly that some telephone calls made by Mr Cabal to his legal advisers had been monitored and recorded. Nevertheless, I am not satisfied that this was a deliberate act on the part of the prison authorities to record calls by Mr Cabal to his legal advisers; rather it appeared to be an aberration or hiccup in the system. 27 Because Mr Cabal and Mr Pasini are detained in prison it is inevitable that they will not be able to make telephone calls whenever they like. There are only two telephones in the Sirius East Unit and the applicants have to share these telephones with the other Sirius East inmates. I do not consider that Mr Cabal and Mr Pasini are being discriminated against or are suffering substantial disadvantage in the use they are given of the telephone system in the prison. In particular Mr Cabal is given much greater latitude than any other prisoner and although Mr Pasini is not given the same latitude it appears that Mr Cabal is the moving force of the two applicants in relation to the giving of instructions to legal advisers and the seeking of legal advice from them. 28 The applicants have been able to make telephone calls required in order to prepare the cases for their Mexican and their Australian proceedings. In particular, Mr Cabal appears to have the carriage of the Mexican proceedings and the telephone records show many telephone calls made to legal advisers. Mr Cabal said that he anticipates that in the future he will need to make telephone calls which will cost in excess of $400 per week having regard to the stage his Mexican proceedings are about to reach. Since the policy of restricting telephone calls was introduced Mr Cabal has nevertheless one some occasions exceeded $400 per week in the costs of calls he has made because of the balance in his telephone account. I would expect that if particular circumstances arose in the future which necessitated telephone calls over and above the limit presently imposed on Mr Cabal and Mr Pasini, the prison authorities would give proper consideration to allowing such telephone calls having regard to the unusual situation that Mr Cabal and Mr Pasini are not only contesting legal proceedings in Australia but are also contesting legal proceedings of a substantial nature in Mexico. 29 Although Mr Cabal said that he has found it increasingly difficult to communicate with his Mexican lawyers with respect to his legal proceedings due to "arbitrary reduced access to the telephones available for use by the prisoners in Sirius East", the telephone records show that he has made many telephone calls to legal advisers in Mexico. Mr Cabal maintained that the new policy limiting prisoners' telephone accounts to $400 per week "severely hampers" his ability to conduct his defence in Mexico. An examination of the telephone records shows that since January 2000 both Mr Cabal and Mr Pasini exceeded their weekly limit on occasions without apparent restriction. 30 Mr Pasini's limit of $50 per week, it is said, makes it virtually impossible for him to assist in the operation of his defence in Mexico. Mr Pasini said that several times this year he has had to stop calling his Mexican lawyers or his brother because he did not have enough money in his account. An examination of the telephone records produced by Mr Kelly shows that on a number of occasions he has made telephone calls during a week at a cost in excess of $50 because of the balance in his telephone account. For example, on 16 March 2000 he made two telephone calls to his brother which cost $60 and $12.40 and another call which cost $20. Two days later he made a call costing $11.20. For the week beginning 13 March 2000 the cost of Mr Pasini's telephone calls was no less than $130. 31 Mr Kelly said that when the telephone policy was changed he had a meeting with Mr Cabal and Mr Pasini, as a result of which it was agreed to allow Mr Cabal a secondary telephone allocation and an allowance for $400 per week for telephone calls. Mr Kelly said that the applicants agreed that this proposal would satisfy their needs as they utilised the same legal resources. Mr Kelly's understanding of the agreement reached with the applicants was recorded in a letter to the applicants' solicitors on 14 February 2000 in which Mr Kelly stated: "During the meeting, Mr Cabal stated that by initiating the additional phone account and money allowance, this would effect [sic] both he and Mr Pasini as they both utilised the same legal resources. Mr Pasini agreed with this process, in that the one additional account would subsidise their needs". This account was not contradicted or contested by the applicants. 32 In all the circumstances I consider that the issues which have arisen in relation to telephone calls by the applicants, their ability to make telephone calls and the current limits placed on their telephone calls are not such as to constitute relevant "special circumstances".

Transportation to and from prison 33 Further incidents have arisen in relation to the manner in which the applicants are transported to and from the prison. On 4 January 2000, the day on which I delivered my reasons for refusing the first bail application, the applicants were transported to the Federal Court for the hearing. The applicants said that the manacles were fastened on their wrists too tightly and that on the journey to the Court Mr Pasini was shackled with a twelve link chain and Mr Cabal was shackled with a longer chain. On the return visit to prison Mr Cabal was shackled with a twelve link chain and Mr Pasini with the longer chain. The applicants remained manacled and shackled until they reached the security room adjacent to the courtroom. They say that on previous occasions the manacles and shackles have been removed at the Federal Court reception area. On the return journey to the prison Mr Cabal said that his manacles were fastened too tightly and after some dialogue with a prison officer the manacles were loosened a little. The applicants also said that the security van in which they were carried had excrement smeared on the walls. 34 Mr Roach did not dispute that a twelve link chain was used. He issued an instruction effective from 7 January 2000 that only seventeen link chains were to be used on high security escorts. Mr Roach also said that enquiries he had made of officers conducting the escort on 4 January 2000 disclosed that Mr Cabal failed on three occasions to comply with instructions to put his hands out in front of him so that the handcuffs could be applied. Mr Cabal denied that he failed to comply with any instruction. Mr Pasini did not see Mr Cabal being told to comply with any instruction. 35 Mr Roach said that the practice adopted with respect to the transportation of high security prisoners to courts is that restraints on them are not removed until the person is placed in a holding cell. There are two holding cells at the Federal Court, one in a secure area for the reception of prisoners and one adjacent to the courtroom. If a person is taken straight to court level the shackles remain on until the person is placed in the holding cell at the court level. If the person is not taken straight to the court level but is held at the reception level, the shackles are removed at that point and when it is time for the person to go to the court level only handcuffs are applied. Mr Roach inspected the vehicle used on 4 January 2000 to transport the applicants to and from the Court and said that there are small rust stains in the vehicle which are not made from faeces. Mr Pasini maintained that the marks in the vehicle were not rust spots but were faeces. 36 On the same day, 4 January 2000, before leaving for Court Mr Pasini had put a bandaid on the rear of his heel to protect a blister. The bandaid was removed as part of the prison exit strip search. It had to be discarded and Mr Pasini was not given another bandaid. Mr Roach said that the bandaid was removed for security reasons and that he would have expected the bandaid to be replaced. He said he would remind his officers to replace bandaids in the future so as to minimise discomfort. 37 Further incidents occurred on 12 January 2000 when the applicants were transported to and from the Federal Court for a hearing. Although seventeen link shackles were applied to the applicants instead of twelve link shackles, the seventeen link shackles were heavier. Mr Roach said that this is due to the increased number of links which allow more freedom and movement. The weight of the shackles including the seventeen link chain and padlock, according to Mr Roach, is two kilograms and protective carpet has been placed on the inside of the shackles so that they do not rub the ankles of the wearer. 38 The applicants say that on 12 January 2000 no lunch was provided to them over the luncheon adjournment at the Federal Court. There is an issue as to what occurred thereafter. The applicants say that the officer supervising them said that the applicants' lunch had been left in the security van and that they were not offered any food or water although the officers ate their lunch in front of the applicants at twelve noon. Mr Roach said that he has been informed that the supervising officer, when he became aware that there were no lunches, returned to the transit van and discovered that the lunches had not been left in the van and that he asked the applicants whether he could obtain some lunch for them but they declined. He arranged for them to have lunch on their return to the prison which occurred just before 2.00pm. 39 Mr Roach said that as a result of considering the issues raised by the applicants he has directed that certain procedures be implemented to ensure that the treatment received by the applicants is appropriate. Mr Roach said that he has directed that an officer of the rank of supervisor be the officer‑in‑charge of each transport assignment involving the applicants and that that person will bring to his attention any issue raised by the applicants. 40 I accept the applicants' evidence as to what occurred in relation to these transportation issues. Their direct evidence was not contradicted by any of the officers said to have been involved in the incidents. Mr Roach's evidence was based on information supplied to him and is less cogent than the applicants' evidence. 41 I do not consider that these incidents either separately or cumulatively amount to relevant special circumstances. I accept that these incidents and issues have caused the applicants irritation, inconvenience and discomfort. They occurred on only two occasions and I am prepared to accept that Mr Roach is genuine in his proposal to put in place procedures which will ensure no further transportation issues arise in the future. It is clear from Mr Roach's affidavit that he is very much alive to the issue of ensuring that the applicants are transported under appropriate conditions. I would expect that the procedures he has implemented are designed not only to ensure, as he says, that "the integrity of the SESG is not sullied by allegations that have no substance", but are also designed to ensure that proper, appropriate, humane and non‑discriminatory steps are taken to ensure that the applicants are transported to and from court in a proper manner.

Personal and professional visits 42 Another major complaint made by the applicants relates to the visits that they are entitled to receive. On a number of occasions visitors have not been able to see the applicants. For example, Mr Pedro Collantes from Mexico was refused the opportunity to visit Mr Cabal on 8 January 2000. Ms Debra Counsell was unable to see Mr Cabal on 23 March 2000 and Mrs Teresa Cabal has been unable to see her husband at the same time as he sees his legal advisers. Notwithstanding the difficulties which have occurred both Mr Cabal and Mr Pasini have been given the opportunity to obtain the maximum number of visits allowed to prisoners in Port Phillip Prison. Normally prisoners have to "earn" a higher level of visits by engaging in full time employment or undertaking educational activities. According to Mr Kelly, Mr Cabal and Mr Pasini were "fast tracked" onto the level of five ninety‑minute contact visits (not including professional visits) per week which position they achieved within five weeks although they did not have to fulfil the normal pre‑requisites of full time employment or undertaking educational activities. Although I am only concerned with circumstances which have arisen after 23 December 1999 the applicants' complaints have to be placed in the context of how their level of visits was achieved prior to that date. It is important to note that there are no limits to the number of professional visits an inmate can have and, in particular, there is no restriction upon the professional visits Mr Cabal and Mr Pasini may have. Special visits over and above the entitlement of five ninety‑minute contact personal visits per week are allowed by the prison authorities and these have been allowed for the applicants in some circumstances. 43 The fact of the limit on personal visits is no doubt a matter of irritation and frustration for the applicants but the restriction, of itself, is not a relevant special circumstance. It is to be expected in a prison regime that there will be some limit on the visits which inmates may be allowed. The point is not that the applicants are entitled to more personal visits than other inmates; nor is the point that they were fast tracked to the upper level of visits without having to comply with the normal pre‑requisites for that level. Rather the point is whether in the particular circumstances which relate to the applicants, it can be said that the restrictions on their visitors are such as to constitute a relevant special circumstance. 44 There has not been any restriction on the extent to which the applicants can see their legal advisers. Ms Debra Counsell was denied access to Mr Cabal on 23 March 2000 as a result of either a misunderstanding by a prison officer or a breakdown in communications between prison officers. Ms Counsell should have been allowed to see Mr Cabal on that day. What occurred was that Mr Cabal was in the middle of a professional visit with Mr Zinser when Ms Counsell arrived. Ms Counsell asked that Mr Cabal be advised that she had come to the prison. She was told, erroneously, that Mr Cabal had been advised that she had come to the prison, that he had said that he would be meeting with Mr Zinser for the rest of the afternoon and could not see her. Ms Counsell wrote to Mr Kelly on 27 March 2000 complaining about what had occurred and asking that the applicants be allowed multiple professional visitors to see them at any one time. On 31 March 2000 Mr Kelly responded by letter saying that the applicants could receive multiple professional visitors so long as the visits were held in the one professional room, or in two rooms, one for Mr Cabal and one for Mr Pasini. The incident which occurred on 23 March 2000 should not have occurred but it was an isolated incident and has not been repeated. It is not a relevant "special circumstance". 45 There have been occasions when Mr Kelly, upon request, has allowed the applicants special visits. Mr Kelly by letter dated 24 March 2000 agreed to such special visits occurring on 28 and 29 March 2000. It was unfortunate that Mr Kelly's letter dated 24 March 2000 was not sent by facsimile transmission until early on 28 March 2000 as it gave Ms Counsell little time to arrange the visit. Mr Kelly could not explain why this occurred. On 30 March Ms Counsell requested professional visitor status for Ms Mezquita and on 31 March 2000 Mr Kelly refused this request but granted Mr Cabal a special visit with Ms Mezquita for 1 April. On 1 April, after further requests, Mr Kelly allowed a second special visit with Ms Mezquita on 2 April 2000. 46 Another problem has arisen because Mr Cabal has sought to have his secretaries and assistants, Ms Mezquita and Ms Ruiz, given professional status so that they may visit as frequently as they wish. However, the policy of the prison, supported by s 40 of the Corrections Act 1986 (Vic), is that only legal advisers or authorised representatives of their firms can be given the status of legal adviser for the purpose of unlimited professional visits. Neither Ms Mezquita nor Ms Ruiz are lawyers or employees of a legal firm. Although the applicants' Melbourne solicitors said, in a letter to Mr Kelly on 3 April 2000, that on at least one of Mr Cabal's telephone application forms he had described Ms Mezquita as a "legal contact", Mr Cabal had referred to Ms Mezquita on the application forms variously as "friend", "secretary" and "assistant". Although it is no doubt more convenient for Mr Cabal that Ms Mezquita and Ms Ruiz be given professional visitor status, it has not been suggested by the applicants that the limits on the personal visits allowed to them has impaired significantly the proper preparation or presentation of their cases for their Mexican and their Australian proceedings. In all these circumstances I do not consider that the restrictions on personal visits presently imposed upon the applicants constitute a relevant special circumstance. 47 Complaint is also made about disruptions which have occurred in Mrs Cabal's visits to her husband. For example, on 1 February 2000 she had to wait 45 minutes before being admitted to visit Mr Cabal. Mr Kelly said that this occurred because if a visitor arrived shortly before 5.00pm the visitor may have to wait until a muster count is finished before the visitor can attend the Visit Centre. Another situation arose when Mrs Cabal was not permitted to bring documents to Mr Cabal. The prison authorities had refused to categorise her as a professional visitor for these purposes. Although she has been permitted on some occasions to bring documents to Mr Cabal the stand taken by the prison authorities is that as Mrs Cabal is a social visitor the appropriate method to bring documents to Mr Cabal is through a professional visitor. Mr Kelly said that the practice of allowing Mrs Cabal to bring in documents cannot be permitted as a matter of course but he also said "prison staff are keen to be flexible and assist visitors to the prison from time to time". I would therefore expect that if specific situations arose where Mrs Cabal needed to bring documents to her husband the prison authorities, if put on notice, would allow Mrs Cabal to do so. This has already occurred on a particular occasion when Mrs Cabal was allowed to see Mr Cabal as a special visitor. 48 Mrs Cabal complained that when she is visiting Mr Cabal she is not able to speak to her brother, Mr Pasini, at the same time. Mr Kelly said that there is no rule that a visitor cannot greet an inmate other than the inmate they are visiting so long as they do not stop at the table at which the other inmate is having a visit. Again, this is a matter of a general prison procedure. 49 The issues which have arisen in relation to personal and professional visits overall have occurred against a background of general prison policy and administration. Although they have caused the applicants inconvenience, I do not consider that taken singly or cumulatively they amount to relevant special circumstances. Health and safety issues 50 One of the major circumstances relied upon by the applicants is that they contend that their health and safety is at risk whilst they are detained in the Sirius East Unit. One incident giving rise to a health issue arose on 4 January 2000 when Mr Cabal went to the prison hospital for treatment. He was taken with other inmates from Sirius East and put with other inmates in what he called a small transit cell around two metres by three metres in size. Mr Cabal said that one of the other prisoners was coughing up blood. After seeing a doctor, Mr Cabal was returned to the transit cell where he had to wait for forty minutes before being returned to Sirius East. As a result of having to wait he was not able to speak to his lawyer before the court hearing commenced. Mr Kelly said that the procedure which is adopted is that Sirius East inmates are escorted to the prison hospital by prison staff on foot and upon arrival are placed, as are all inmates, in waiting rooms until called in to see the doctor. Mr Kelly said there are four waiting rooms of the same size and that inmates are not placed in transit cells. If there is more than one Sirius East inmate they are escorted back to the Unit together. It was unfortunate that Mr Cabal was not able to speak to his lawyer although he was able to speak to his lawyer's office but that, of itself, does not amount to a relevant special circumstance. 51 As with other incidents, this set of circumstances was no doubt irritating and a matter of concern for Mr Cabal. I do not consider that it matters whether Mr Cabal had to wait in a waiting room or a transit cell before being seen by the doctor. It was unfortunate that one of the other prisoners was coughing up blood but that incident arose in a context of prisoners waiting to see the doctor, not in a context of close confinement otherwise. I do not seek to minimise the concern Mr Cabal felt about what occurred not only in relation to the prisoner who was coughing up blood but also in relation to having to wait before being returned to Sirius East with the other Sirius East inmates. However, I regard these matters as incidents or consequences of standard prison procedure and not such as to amount to relevant special circumstances. 52 Mr Cabal has had some difficulties in obtaining a blood test for cholesterol as tests have been scheduled but then cancelled without explanation. Mr Kelly could offer no explanation for the cancellation but as a blood test was conducted on or about 14 January 2000 I do not regard the difficulties that Mr Cabal had as constituting relevant special circumstances. 53 Mr Cabal complained that he has chronic fungal infection on his feet due to standing in bare feet during strip searches on an average of three times per day on carpet contaminated by the unwashed feet of hundreds of other prisoners and that medication given to him for this condition has not been successful. Again, this is a matter of concern to Mr Cabal but treatment is available to him either from the prison doctor, a registered nurse located in the prison or by seeking access to a private medical practitioner. It is not a relevant special circumstance.

The nature of the inmates in Sirius East 54 A critical issue raised by the applicants is that since 23 December 1999 new prisoners have been brought into Sirius East who the applicants submit are detrimental to the health, safety and security of the applicants. The issues raised by the applicants must be seen against the background of the evidence given by Mr Kelly at the first bail hearing that Sirius East is a safe environment. In particular, Mr Kelly said that Sirius East was a safer environment than the Scarborough South Unit in which they had been initially detained. Mr Cabal gave evidence of prisoners who had been placed in Sirius East since 23 December 1999. He identified the prisoners, the offences for which he understood they had been convicted and their sentences. His evidence in this respect was challenged and as a result of documentation sought from the Commissioner of Correctional Services evidence was obtained on a confidential basis as to the offences for which all the inmates presently in Sirius East have been sentenced, their sentences and the health condition of some of them. The Commissioner objected to the production of the documents recording this information but I overruled the Commissioner's objection and ordered the documentation to be produced in an agreed form: Cabal v United Mexican States ( No 4) [2000] FCA 405. I set out the substance of my findings in relation to this evidence in Confidential Schedule "A" to these reasons. That schedule is only to be shown to the persons on whose behalf undertakings were given to the Court on 30 March and 4 April 2000 and to Mr Kelly and to the Commissioner for Correctional Services and her staff. 55 The substance of these findings is that some of the prisoners admitted to the Sirius East Unit since 23 December 1999 have been convicted of serious crimes of violence including murder. Some prisoners suffer from communicable diseases. Since 23 December 1999 two incidents have occurred in Sirius East involving assaults on prisoners. None of these incidents have involved, or potentially involved, the applicants in any way. Nevertheless, the applicants fear that they may be harmed in Sirius East. They also fear, as I understand it, that they may contract a communicable disease from one of the other prisoners. 56 One can understand the apprehension and fear of the applicants being detained in prison in the company of persons convicted of serious crimes including crimes of violence and persons suffering from communicable diseases when, in the past, it has not been part of their personal, business or social activities to associate with such persons. It must also be remembered that they have not been convicted of any offence but are presently being held in extradition detention. In determining whether this situation constitutes a relevant special circumstance, it is important to note that the applicants have been detained in Sirius East since September 1999. They have spent over seven months in Sirius East without becoming involved in any incidents themselves. Counsel for the applicants responded to this observation by saying - do you have to wait until some harm befalls them before it can be said that there are special circumstances? The answer is obviously - no, but it is still necessary to consider the relevant evidence and determine whether it warrants a conclusion that action needs to be taken. Mr Kelly said that to the best of his knowledge the applicants had not made a complaint of any incidents of violence or threatened violence shown to them by any of the inmates in Sirius East and that he had no information which would indicate that any incidents of violence had occurred to the applicants. 57 Mr Kelly said that the applicants have been placed in Sirius East for their own protection and that other prisoners are placed in Sirius East for their own protection. In the case of one of the incidents which occurred in Sirius East earlier this year, the applicants said it was the victim of the attack who was transferred to the Charlotte Unit for his own protection and not the aggressor. This was denied by Mr Kelly. On another occasion a prisoner who had been harassed by another prisoner was transferred to the Charlotte Unit. Mr Kelly said that that prisoner had a psychiatric history, was difficult to manage and had not wanted to remain in Sirius East and that it was for those reasons that he was transferred. Ultimately he was transferred to a psychiatric facility. Although situations may have occurred where, in a particular situation, a prisoner the subject of aggression was transferred from Sirius East and the aggressor was allowed to remain I do not consider that this has created a situation of potential harm for the applicants. None of the incidents referred to in the evidence involved, or potentially involved, the applicants. 58 The applicants rely upon the nature of the offences for which the other inmates of Sirius East have been convicted, the sentences imposed on them and the incidents which have occurred as the grounds for their fear of harm rather than any veiled or overt threat of harm to them personally. Mr Kelly said that persons convicted of murder do not give trouble in prison and are not a management risk. He said that persons convicted of violent crimes are not a risk to those around them as once they come into the prison system they abide by the prison rules. This may be true as a generalisation but I am bound to determine the matter by reference to the situation in which the applicants find themselves in Sirius East and the prisoners with whom they are detained. 59 Notwithstanding the nature of the offences for which the other inmates of Sirius East have been convicted, I am not satisfied that there is a serious risk of harm to the applicants while they remain in Sirius East. They have not made any complaints of any apprehended violence to them nor have any acts of violence been committed against them during a period of over seven months. In these circumstances I do not consider that the nature of the inmates in Sirius East, the crimes for which they have been convicted and the sentences imposed on them constitute relevant special circumstances. 60 I reach a similar conclusion in relation to the health situation. Although some of the prisoners in Sirius East suffer from communicable diseases there is no evidence before me that the nature of the conditions of Sirius East are such that there is a significant likelihood that the applicants are liable to contract any of the communicable diseases from the other inmates.

Psychological issues 61 The applicants also rely upon the evidence of Mr Jeffrey Cummins, a psychologist. Mr Cummins saw Mr Cabal and members of his family prior to the first bail application and evidence of his assessment was before the Court on that hearing. Subsequent to that application Mr Cummins saw Mr Cabal on two occasions in January 2000 and saw Mrs Cabal and her four children on 3 February 2000. One of the matters discussed with Mr Cummins in detail was the incident which had occurred when Mrs Cabal and three of her children visited Mr Cabal on 1 January 2000 and witnessed an incident in the reception area where another visitor was discovered with syringes and drugs. It is apparent from Mr Cummins' report that this incident, including the threat by a prison officer that they would lock down the prison, had a significant effect on Mr Cabal's children. 62 I refer to some of Mr Cummins' opinions and conclusions in Confidential Schedule "B" to these reasons. 63 Mr Cummins concluded that Mr Cabal's situation, namely continuing to be detained in custody, placed him in a category which is significantly different to that applicable to most other prisoners who are detained on remand for an extended period of time. The admissibility of this opinion was objected to by counsel for Mexico on the ground that the opinion expressed was outside Mr Cummins' field of expertise. It was not clear from Mr Cummins' report on what basis he was able to express an opinion about the position of other remand prisoners. For that reason I would rule that the particular opinion expressed by Mr Cummins is inadmissible. Even if it were admissible I would give it little weight having regard to Mr Cummins' opinion that: "the significant clinical difference relates to the 'political element' of Mr Cabal's situation." It was not clear what Mr Cummins means by this observation. He referred to Mr Cabal and his family having a different cultural background to that of other prisoners. He also referred to the fact that Mr Cabal had never previously been detained in custody and that it was not part of his life to be associating with recognised criminal offenders. I therefore take Mr Cummins to be saying that Mr Cabal is being forced to associate with persons with whom he would not otherwise associate and that he is perceived by his family to be in a situation in which he should not be found. Mr Cummins' reference to the "political element" of Mr Cabal's situation appears to be a reference to Mr Cabal finding himself in a situation which Mr Cabal contends is brought about by political considerations. Any issue as to the political element of Mr Cabal's situation and whether Mr Cabal has a valid extradition objection for the purposes of s 7(b) of the Act is to be dealt with by the review of the Magistrate's decision presently being undertaken by another judge of this Court. 64 Although I can sympathise with the feelings Mrs Cabal and Mr Cabal's children must have as a result of Mr Cabal's forced detention, that is an inevitable result of the extradition process required by the Act and the detention of Mr Cabal unless "special circumstances" can be shown. I am not satisfied that the condition of Mr Cabal and the members of his family to which Mr Cummins refers is such as to constitute relevant special circumstances.

Conclusion 65 For the reasons to which I have referred I am not satisfied that the matters and circumstances which have occurred since 23 December 1999 relied upon by the applicants are special circumstances for the purposes of s 21(6)(f)(iv) of the Act. Where I have earlier referred to a "relevant special circumstance" I have referred to a special circumstance which comes within s 21(6)(f)(iv) of the Act and therefore justifies the release of either of the applicants on bail. I have considered the individual matters relied upon by the applicants. I have also considered whether any combination or cumulative consideration of these matters, when aggregated, amounts to such special circumstances. I have reached the conclusion that they do not. I am not satisfied that all the matters relied upon by the applicants when considered together are substantially different from the circumstances which ordinarily apply where a person is in custody pending extradition proceedings and which by their nature warrant a more favourable view in relation to the grant of bail. Although the applicants have now been held in custody for sixteen months, that period of incarceration must be understood in the light of what has occurred since the applicants were first apprehended. In this respect I would repeat and refer again to what I said in pars 79 and 80 of my reasons for judgment on 4 January 2000. Notwithstanding that a further three and a half months have elapsed since the last bail application, I do not consider that, in the circumstances which have occurred, broad community standards warrant the conclusion that the applicants' length of time in custody is such a special circumstance as to warrant their release on bail. 66 Even if I had reached the conclusion that any of the matters and circumstances relied upon by the applicants did constitute special circumstances for the purposes of s 21(6)(f)(iv) of the Act, I would not have exercised my discretion in favour of granting bail having regard to the conclusion to which I referred in my reasons for judgment on 4 January 2000, that the risk of the applicants absconding on bail is a real risk having regard to the circumstances to which I had referred. In par 108 of those reasons I said: "If I had found that there was special circumstances warranting or justifying the release of the applicants on bail I would not, as an exercise of discretion, have been disposed to have granted bail having regard to the ability and propensity of each of the applicants to move between different countries between 1994 and 1998 and their ability and propensity to obtain travel documentation and identification cards in assumed names. I consider that the risk of them absconding on bail is a real risk having regard to these circumstances. The risk is heightened by the fact that a Magistrate has now determined that they are eligible for surrender to Mexico. I am not satisfied that the statutory presumption against bail is rebutted by relevant special circumstances or matters which warrant me exercising my discretion to grant bail. In my opinion, the applicants now have even greater incentive to try and escape the risk of surrender to face trial in Mexico." I am still of that view. I do not consider that any of the circumstances relied upon by the applicants, taken singly or cumulatively, are such as to outweigh that risk and tip the balance in favour of the grant of bail. 67 The applications for bail will be dismissed. I will hear the parties on the question of costs. I certify that the preceding sixty‑seven (67) numbered paragraphs and the succeeding confidential appendix are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate: Dated: 20 April 2000 Counsel for the Applicants: Mr J Gilmour QC and Mr M D Howard

Counsel for the First Respondent: Ms L Lieder QC and Mr G Gilbert

Solicitor for the First Respondent: Commonwealth Director of Public Prosecutions

Date of Hearing: 28, 29, 30 March, 4, 5 and 6 April 2000

At a glance

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Judgment (12 paragraphs)

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