Bail decision of Gray J, 20 December 2000
28 By a notice of motion filed in the appeal proceeding on 20 November 2000 the applicants sought to be admitted to bail pending the hearing and determination of the appeal. On 20 December 2000 Gray J granted bail to Mr Pasini but dismissed the application of Mr Cabal: Cabal v United Mexican States [2000] FCA 1892. Consistently with the view which Goldberg J had taken, Gray J held (at par 21) that while successive bail applications could be made, once a determination had been made on the question of "special circumstances" as at a particular date that determination was binding on the parties to the proceeding as to the circumstances at that date. His Honour thought an issue estoppel existed. If not, he thought he should take the view that Goldberg J's judgments established that, on the dates they were given, the conditions under which the applicants were imprisoned did not amount to "special circumstances", unless those judgments were "fundamentally wrong". In his Honour's view, the judgments of Goldberg J were correct.
29 His Honour noted that he had informed counsel for the applicants that he would deal with the application on the footing that it was incumbent upon 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 constituted "special circumstances" justifying the exercise of the discretion whether to grant bail.
30 His Honour agreed with Goldberg J's construction of the expression "special circumstances" quoted at par 5 above. His Honour then proceeded to deal with the matters said by the applicants to constitute changed circumstances. The first was the lapse of time, by now two years, and the view expressed by French J in Shoenmakers 30 FCR 70 at 74-75 that imprisonment for a year, the period in that case, could never be regarded as anything other than a "special circumstance". Gray J said that French J cannot be taken to have laid down a rule of law. Lapse of time in the present case had to be viewed in context. While the applicants' exercising their legal rights was clearly not a matter for penalty, nevertheless the relevant Minister had been prevented from making a decision whether or not to surrender the applicants for extradition by their continued attempts to overturn the decision of the magistrate. It could not be said the proceedings in respect of review or the appeal were unreasonably slow having regard to their complexity. In the circumstances his Honour could not regard the time spent by the applicants in prison as a "special circumstance".
31 As to continued detention in Sirius East, his Honour accepted that conditions were "extremely difficult" for the applicants but nothing had changed since their earlier bail applications where the same conditions were held not to have constituted "special circumstances". It was not open to his Honour now to hold that these conditions constituted changed circumstances.
32 As to their fears for their safety in Sirius East, although the identities of the prisoners may be different the character of Sirius remained the same. Since the second judgment of Goldberg J two specific incidents were alleged to have occurred. One was on 30 May 2000 in which Mr Pasini told the occupant of a neighbouring cell to turn down the volume of his radio. The prisoner later spoke to the two applicants and showed them a weapon with a narrow blade. The prisoner was moved from Sirius East. More recently on 26 October 2000 in the exercise yard two prisoners indicated they wished to speak to Mr Cabal and began to approach him. They were intercepted by prison officers who searched them and found one to be carrying a pair of scissors. In addition Mr Cabal deposed to a belief that a fight occurred on or about 20 October 2000 in an exercise yard shared between Sirius East and Sirius West. Mr Cabal was informed by the inmates that knives were present at the scene. The two men were transferred to another unit for punishment but one returned to Sirius East a few days later. There were drugs available in Sirius East. Gray J noted that the correctness of those assertions was not necessarily accepted by the prison authorities. Nevertheless, even accepting them for present purposes, Gray J found their effect very limited. It was always the applicants' case before Goldberg J that they feared for their safety and that Sirius East was a dangerous and unhealthy place. Even if accepted as true, the incidents only supplied example of cause of the applicants' fears and feelings. The incidents also served to show that despite the nature of Sirius East and its inmates, the applicants have so far survived without harm. His Honour was of the view that the circumstances had not changed significantly since Goldberg J examined them.
33 Further, a number of judges had expressed concern as to the conditions under which the applicants were incarcerated. The judges include Goldberg J, a member of the Full Court that heard the appeal from French J, and Gray J himself. Gray J considered that if conditions remained the same, the expressions of opinion about them could not affect their character. It was said there had been a failure to change the conditions despite the expressions of opinions. Gray J thought in the light of s 53 there was no scope for the Australian Government to direct the government of a State to do something otherwise than in accordance with the law of that State or Territory.
34 His Honour referred to a claim which alleged breach of Australia's obligations under the International Covenant of Civil and Political Rights (ICCPR). In Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 949 Gray J held that the word "prison" in the Act did not, as the applicants contended, refer only to places of detention and not to places of correction. His Honour found that obligations under Art 10 of ICCPR, which provided for accused persons to be kept segregated from convicted persons, were not applicable because Australia's adherence to the treaty was subject to the reservation that the principle of segregation was to be achieved progressively. Australia did not have an absolute international obligation to ensure the segregation of unconvicted prisoners. The Full Court dismissed an appeal from his Honour's judgment: Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 1227. Special leave to appeal to the High Court was refused. In the meantime the applicants made a complaint to the Human Rights and Equal Opportunity Commission (HREOC). On 9 November 2000 Professor Alice Tay as a delegate of the Human Rights Commissioner made "preliminary findings" in relation to the applicants' complaints. No submissions had been made on behalf of the Australian Government. Gray J noted that Professor Tay was apparently uninformed of his decision, upheld on appeal, as to the application of ICCPR. The issue of non-segregation from convicted prisoners (held to be not unlawful in those judgments) appeared to his Honour to pervade the "preliminary findings". His Honour concluded that if the conditions in which the applicants were kept and the manner in which they have been treated do not amount to "special circumstances" they could not amount to "special circumstances" by reason of the expression of an opinion, or a mere allegation, that they involve infringement of human rights.
35 As to events in Mexico relating to the charges, Gray J referred to a considerable body of evidence to the effect that the proceedings taken by the applicants in Mexico to have the charges quashed had achieved some success. One warrant relating to tax offences and another relating to money laundering offences against Mr Cabal had been quashed in an Amparo Court. This is apparently a court in the Mexican judicial system which makes rulings as to the validity of legal process. However those decisions were subject to appeals. Some "parallel proceedings", that is charges not the subject of the extradition requests, had been discontinued. This was said to be because of the acceptance by the prosecuting authorities that there was no evidence of an element in those charges that Mr Cabal was in a particular decision-making position within Banco Union. The same element appeared in the charges which were the subject of the extradition request. Counsel for Mexico had objected to the introduction of such evidence and counsel for the applicants said that its only relevance was to establish that the applicants had great confidence that the charges against them would be quashed in due course. This confidence was said of itself to constitute a changed circumstance and to be a factor reducing the risk of flight if they were to be released on bail. Gray J found that to the extent that there has been a change in the basis for optimism and increased confidence of the applicants that they would be exonerated, that was a change in the circumstances since the last decision of Goldberg J, but it was not however a "special circumstance". As a matter of legal formality the applicants still faced all of the charges the subject of the extradition requests. Mexico did not concede that they would be exonerated in respect of any of those charges. His Honour concluded it was not appropriate for an Australian court to investigate the likelihood of acquittal of charges in the country to which extradition is sought.
36 As to the effect on the Cabal family, his Honour referred to psychological evidence from Mr Cummins. His Honour concluded that the difficulties suffered by the Cabal family were not significantly greater than those suffered by most families with one parent in prison.
37 As to the psychological state of the applicants themselves, his Honour was satisfied that Mr Cabal's condition was within the normal range liable to be suffered by someone of his background incarcerated in the way that he had been. The psychologist said Mr Cabal had a "major depressive disorder or major anxiety disorder". Mr Cabal was a dominant person and a leader. His Honour thought this a critical distinction between the two applicants. Because of his personality and because of his lesser role, Mr Pasini was more drastically affected by the condition identified by Mr Cummins. In his view the psychological condition of Mr Cabal did not constitute "special circumstances" but that of Mr Pasini did.
38 In summary his Honour concluded that even if all of the matters raised by the applicants were viewed cumulatively, they did not, with the exception of the psychological condition of Mr Pasini, amount to "special circumstances".
39 His Honour then turned to the discretion whether to grant bail. This involved balancing the risk that a person on bail would 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. His Honour said that if he decided that "special circumstances" did exist in the case of Mr Cabal, he would, like Goldberg J, not have exercised his discretion in favour of granting bail. His Honour said (at par 70):
"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 is admitted to bail if unacceptable."
40 His Honour went on to deal with the situation of Mr Pasini and found that his risk of absconding was significantly less.