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Federal Court of Australia |
Last Updated: 6 January 2000
Cabal v United Mexican States [2000] FCA 7
EXTRADITION - release from custody pending hearing - meaning of "special circumstances' whether period of detention is a special circumstance - conditions of detention and transportation as special circumstances - arbitrary and discriminatory treatment during transportation.
WORDS & PHRASES - "special circumstances"
Extradition Act 1988 (Cth): s 21(6)
Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 considered
Wu v Attorney-General of the Commonwealth (1997) 79 FCR 303 cited
Bertran v Minister for Justice [1999] FCA 1117; (1999) 165 ALR 155 considered
Holt v Hogan (No 1) (1993) 44 FCR 572 cited
Kingdom of Thailand v Saxena (1998) 129 CCC (3d) 518 cited
CARLOS CABAL PENICHE & MARCO PASINI BERTRAN v UNITED MEXICAN STATES & ANOR
V 728 of 1999
GOLDBERG J
MELBOURNE
4 JANUARY 2000
IN THE FEDERAL COURT OF AUSTRALIA |
|
VICTORIA DISTRICT REGISTRY |
1. The application by each of the first applicant and the second applicant by way of interim relief, filed on 17 December 1999, for an order pursuant to s 21(6)(f)(iv) of the Extradition Act 1988 (Cth) that they be released on bail until the review sought by their application herein has been conducted is dismissed.
2. Liberty is reserved to the applicants to apply further for release on bail consistently with the reasons for this judgment.
3. The issue of the costs of the hearing be reserved for further consideration.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA | |
VICTORIA DISTRICT REGISTRY |
BETWEEN: |
CARLOS CABAL PENICHE First Applicant MARCO PASINI BERTRAN Second Applicant |
AND: |
UNITED MEXICAN STATES First Respondent LISA HANNAN M Second Respondent |
JUDGE: |
GOLDBERG J |
DATE: |
4 JANUARY 2000 |
PLACE: |
MELBOURNE |
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, Carlos Cabal Peniche ("Mr Cabal"), was a person eligible for surrender to the first respondent United Mexican States ("Mexico") in relation to the extradition offences of:
* Being an employee and officer of a credit institution who authorised transactions, being aware that such transactions will result in loss to the institution to which he renders his services, contrary to Article 112 section V of the Law of Credit Institutions of Mexico (six counts);
* Being an employee and officer of a credit institution who granted credit to individuals or corporations whose insolvency condition is known to him, if it is foreseeable, at the moment of execution of the transaction, that the individual or corporation lacks the financial capacity to pay or who is responsible for the total of the credited sums, deriving in economic loss to the institution, contrary to Article 112 section V(c) of the Law of Credit Institutions of Mexico (five counts);
* Being an employee and officer of a credit institution who renewed partially or totally overdue credits to individuals or corporations referred to in Article 112 section V(c) of the Law of Credit Institutions of Mexico, contrary to Article 112 section V(d) of the Law of Credit Institutions of Mexico (four counts);
* Being an employee and officer of a credit institution who knowingly allowed a debtor to divert the total of the credit to his own benefit or that of third parties, and as a consequence, resulted in economic detriment to the institution, contrary to Article 112 section V(e) of the Law of Credit Institutions of Mexico (five counts);
* Being an employee and officer of a credit institution who intentionally omits to register transactions carried out by the institution or who alters the registers so as to conceal the true nature of transactions carried out thereby affecting the state of assets, liabilities, contingent accounts or profits, contrary to Article 113 of the Law of Credit Institutions of Mexico (two counts);
* Being an employee and officer of a credit institution who either by himself or through an intermediary, unduly receives from his clients a benefit as a determining condition to carry out a transaction, contrary to Article 114 of the Law of Credit Institutions of Mexico (one count); and
* Fraud, contrary to Article 386 of the Federal Criminal Code in Matters of Common Law for the Federal District and in Federal Matters for the Republic of Mexico (three counts);
* Tax Fraud Comparable, contrary to Article 109 section I of the Federal Tax Code of Mexico (two counts);
* Falsely Declaring Losses, contrary to Article 111 section IV of the Federal Tax Code of Mexico (one count);
* Being an employee and officer of a credit institution who granted credit to individuals or corporations whose insolvency condition is known to him, if it is foreseeable, at the moment of execution of the transaction, that the individual or corporation lacks the financial capacity to pay or who is responsible for the total of the credited sums, deriving in economic loss to the institution, contrary to Article 112 section V paragraph (c) of the Law of Credit Institutions of Mexico (one count);
* Money Laundering, contrary to Article 115 Bis section I paragraph (b) of the Federal Tax Code of Mexico (one count).
The Magistrate was satisfied that the supporting documents in relation to those offences, within the meaning of s 19(3) of the Act, had been produced to her. The Magistrate was also satisfied that if the conduct or conduct equivalent to the conduct of Mr Cabal constituting the offences in relation to Mexico had taken place in Victoria at the time at which the extradition request in relation to Mr Cabal was received, the conduct or equivalent conduct would have constituted an extradition offence in relation to Victoria. The Magistrate was not satisfied that there were substantial grounds for believing that there was an extradition objection in relation to the offences.
2 The Magistrate, pursuant to s 19(9) of the Act, by warrant ordered that Mr Cabal 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, 17 December 1999, the Magistrate determined pursuant to s 19(9) of the Act that the second applicant, Marco Pasini Bertran ("Mr Pasini"), was a person eligible for surrender to Mexico in relation to the extradition offences of:
* Wilfully helping Mr Cabal to commit the following crime: being an employee and officer of a credit institution who granted credit to individuals or corporations whose insolvency condition is known to him, if it is foreseeable, at the moment of the execution of the transaction, that the individual or corporation lacks the financial capacity to pay or who is responsible for the total of the credited sums, deriving in economic loss to the institution, contrary to Article 112 section V(c) of the Law of Credit Institutions of Mexico in connection with Article 13, section VI of the Federal Criminal Code in Local Matters for the Federal District and in Federal Matters for the Republic of Mexico (one count);
* Wilfully helping Mr Cabal to commit the following crime: being an employee and officer of a credit institution who knowingly allowed a debtor to divert the total of the credit to his own benefit or that of third parties, and as a consequence, resulted in economic detriment to the institution, contrary to Article 112 section V(e) of the Law of Credit Institutions of Mexico in connection with Article 13, section VI of the Federal Criminal Code in Local Matters for the Federal District and in Federal Matters for the Republic of Mexico (one count); and
* Concealment contrary to Article 400, section II of the Federal Criminal Code in Local Matters for the Federal District and in Federal Matters for the Republic of Mexico (one count).
The Magistrate was satisfied that the supporting documents in relation to those offences, within the meaning of s 19(3) of the Act, had been produced to her. The Magistrate was also satisfied that if the conduct or conduct equivalent to the conduct of Mr Pasini constituting the offences in relation to Mexico had taken place in Victoria at the time at which the extradition request in relation to Mr Pasini was received, the conduct or equivalent conduct would have constituted an extradition offence in relation to Victoria. The Magistrate was not satisfied that there were substantial grounds for believing that there was an extradition objection in relation to the offences.
4 The Magistrate pursuant, to s 19(9) of the Act, by warrant ordered that Mr Pasini 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.
5 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 decision of the Magistrate to commit the applicants to prison.
6 The grounds of review relied upon by the applicants are, in general terms, that:
(a) the Magistrate should have found that Mr Cabal was not eligible for surrender on the grounds that in relation to each of the extradition offences a duly authenticated warrant and a duly authenticated statement in writing setting out the conduct constituting each of the extradition offences had not been produced to the Magistrate, that the supporting documents were not duly authenticated in accordance with s 19(7)(a)(b) of the Act, that the requirement of dual criminality set out in s 19(2)(c) had not been met in relation to each of the extradition offences and that there were substantial grounds for believing that there was an extradition objection under s 7(b) and/or alternatively s 7(c) in relation to all of the extradition offences;
(b) the Magistrate should have ruled that in a proceeding under s 19 of the Act a magistrate is not bound by the rules of evidence and can inform himself or herself as he or she thinks fit;
(c) the Magistrate should have admitted and considered certain evidence in support of the applicants' claim to an extradition objection pursuant to s 7(b) or s 7(c) of the Act, which evidence was set out in the application;
(d) the Magistrate should have granted leave for further evidence to be called concerning the current constitutional controversy in Mexico involving access to documents relating to Mr Cabal's bank, Banco Union and held by the National Banking Commission of Mexico;
(e) the Magistrate should have made certain findings in relation to the issue of "political opinion" in s 7 of the Act.
7 Orders are sought pursuant to s 21(2)(b) of the Act quashing the orders committing the applicants to prison to await surrender and directing their release. The applicants seek 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 orders. Section 21(6) is, relevantly, in the following terms:
"(6) Where the person or the extradition country:(a) applies under subsection (1) for a review of an order;
(b) ...
(c) ...
the following provisions have effect:
(d) the court to which the application or appeal is made shall have regard only to the material that was before the magistrate;
(e) if, because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has been released - the court to which the application or appeal is made may order the arrest of the person;
(f) if:
(i) because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has been released; or
(ii) the person has been arrested under an order made under paragraph (e);
the court to which the application or appeal is made may:
(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) ..."
The legislation
8 Section 3 of the Act sets out the principal objects of the Act, one of which is "to enable Australia to carry out its obligations under extradition treaties". In its original form s 21(6)(f)(iv) did not require the threshold of the existence of "special circumstances" to be overcome before an applicant or an appellant could be released on bail. It simply allowed the Court to "order the release on bail of the person on such terms and conditions as the court thinks fit". Section 15(6) as originally enacted did contain a requirement for "special circumstances". It provided:
"A magistrate shall not remand a person on bail under this section unless there are special circumstances justifying such remand."
The Explanatory Memorandum relating to the Extradition Bill 1987 contained the following statement in relation to the requirement for "special circumstances" in cl 15(6):
"Subclause (6) provides that a person shall not be granted bail unless there are special circumstances. Such a provision is considered necessary because experience has shown that there is a very high risk of persons sought for extraditable offences absconding. In many cases the person is in Australia to avoid arrest in the country where he is alleged to have committed the offence, ie the person left the jurisdiction to avoid justice."
The Explanatory Memorandum which accompanied the Extradition Amendment Bill 1990 said in relation to the amendment which introduced the requirement of special circumstances into s 21(6)(f)(iv):
"The purpose of this clause is to extend the presumption against bail which presently prevents a Magistrate remanding a person on bail `unless there are special circumstances justifying such remand' (subsections 15(6) and 32(3)). The presumption is also to apply to the Supreme Courts of the States or Territories, the Federal Court or the High Court in the exercise of the power conferred by sub-paragraph 21(6)(f)(iv) to order the release on bail of a person who applies for a review of a Magistrate's order, or who appeals against an order made on that review or on any subsequent level of appeal."
9 In Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 at 74 French J presumed that the policy underlying the requirement of "special circumstances" in s 21(6)(f)(iv) was the same as the policy underlying "special circumstances" in s 15(6). I would, with respect, agree with this observation.
10 The manner in which the expression "special circumstances" is to be construed has been considered in a number of cases. In Schoenmakers v Director of Public Prosecutions (supra) French J said, in relation to "special circumstances" at 74:
"The reference to `special circumstances' in the context of this legislation imports a presumption against the grant of bail and puts the onus on the applicant to demonstrate that an order for bail would be justified. There are two stages in the decision-making process under s 21(6)(f). The first involves the threshold question whether there are special circumstances of the kind contemplated by the section. If that question is answered in the affirmative, the court must then consider whether, in the exercise of its discretion, it should make an order for release of the applicant on bail and, if so, upon what terms or conditions.The first question, whether there are special circumstances, involves a value judgment about which of the range of circumstances favouring the grant of bail are to be regarded as special and which are not. That is a judgment to be made by reference to two criteria; the general purpose of the provision imposing the requirement and broader community standards. The purpose of the special circumstances requirement imposed by s 21(6)(f) is apparent from the nature of the legislation and the terms of the explanatory memorandum relating to the 1987 Bill and the equivalent provisions in s 15. It is to reduce what is perceived as `the very high risk of persons sought for extraditable offences absconding'. It looks in particular to the case where a person is in Australia to avoid arrest in the country in which he is alleged to have committed the offence."
In Wu v Attorney-General of the Commonwealth (1997) 79 FCR 303 the applicant claimed that the request for her extradition was an abuse of procedure and invalid. Burchett J granted bail pending the hearing of her application. His Honour was not exercising power under s 21(6)(f)(iv) of the Act but was rather exercising the Court's inherent power to grant bail independently of statute. His Honour observed that the provisions of bail in s 15 and s 21 of the Act reflected legislative adherence to the common law principle and continued at 306-307:
"It seems to me that the common law's `extreme care and caution' and the statute's `special circumstances' are each intended to reflect the same matter - a high risk that a fugitive from his own country may fail to answer bail. This was expressly held to be the basis of the statutory provisions in Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 at 73-74, a decision of French J. It is a consideration which should be applied bearing in mind the importance of the international obligation undertaken by Australia when it enters into extradition treaties ..."
Burchett J then considered decisions relating to expressions such as "special reasons" and "special circumstances" and said:
"These expositions of comparable uses of `special circumstances' support the view, which I hold, that the expression refers to circumstances different, in some way that provides a ground for considering a grant of bail more favourably, from those of the ordinary case of a fugitive remanded in custody."
11 In Bertran v Minister for Justice [1999] FCA 1117; (1999) 165 ALR 155, Sundberg and Merkel JJ cited this passage with approval and said at 161:
"In our view that is what the phrase `special circumstances justifying such remand' in s 15(6) means - circumstances different in some way that provides a reason for a more favourable view of the grant of bail than that attending the ordinary run of extradition cases where a person might be expected to be remanded in custody."
As I observed recently in von Arnim v Federal Republic of Germany [1999] FCA 1747 at [17], some care must be exercised in applying authorities in relation to s 15(6) of the Act to circumstances under s 21(6) of the Act. However, in my opinion, these observations of Sundberg and Merkel JJ apply to the expression "special circumstances" in s 21(6)(f)(vi) of the Act. Indeed at 164 Sundberg and Merkel JJ were generally in agreement, inter alia, with the observations of French J in Schoenmakers v Director of Public Prosecutions (supra) to which I have referred in par 10 above.
12 In Bertran v Minister for Justice (supra) Finkelstein J concurred with the majority in dismissing the appeal but took what may be regarded as a view narrower than the majority in his approach to "special circumstances". His Honour said at 168:
"However, in recognition of the fact that detention may cause an arrested person to suffer injustice, bail may be granted `in special circumstances'. In my opinion this does not mean that the arrested person need only show something that does not exist in an ordinary case. It means more than that. To justify the grant of bail the arrested person must establish circumstances that are of sufficient weight to overcome the important reason why bail should ordinarily be refused. Accordingly bail will ordinarily be refused unless the arrested person would suffer serious injustice if remanded in custody. What will constitute serious injustice must be determined on a case by case basis. It will include circumstances as diverse as a risk of serious deterioration of health if the arrested person is remanded in custody and cases where it is highly probable that the arrested person is not eligible for surrender."
There is force in his Honour's observation but it does not, in my respectful opinion, pay sufficient regard to the fact that in order for something to be "special" there must be established some norm or fact by reference to which it can properly be characterised as "special". It seems to me that this approach does not pay sufficient attention to the content of "special". For example, in Jess v Scott (1986) 12 FCR 187 the Full Court in considering the content of the expression "special reasons" in O 52 r15(2) of the Federal Court Rules which allows the Court to extend the time for filing a notice of appeal said at 195:
"It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served."
I therefore approach the question whether special circumstances exist for the purposes of s 21(6)(f)(iv) by asking, consistently with the authorities to which I have referred, 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.
13 The applicants submitted that I should construe "special circumstances" somewhat differently. They pointed out that in The Shorter Oxford English Dictionary 3rd ed "special" had a number of meanings including:
"1. Of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality, or degree...
3. Marked off from others of the kind by some distinguishing qualities or features; having a distinct or individual character ..."
The applicants submitted that in construing "special circumstances" in s 21(6)(f)(iv) I should adopt the latter definition of "special" and ask what marks off the circumstances from other circumstances and what are their distinguishing features or qualities. I do not, however, consider that this approach is consistent with the authorities to which I have referred.
14 The authorities establish that the determination of whether bail should be granted under s 21(6)(f)(iv) involves a two-step process. In essence, the establishment of special circumstances is a threshold but once overcome there is a residual discretion in the Court. As the majority (Sundberg and Merkel JJ) said in Bertran v Minister for Justice (supra) at 163:
"Special circumstances must exist before bail can be granted, but there is a discretion to be exercised after special circumstances are found. It is not inappropriate to describe the first step as a condition precedent to the exercise of the jurisdiction to grant bail: see Holt (at FCR 379) and Kainhoffer (at FCR 13). It is a condition precedent in the sense that it is a requirement that must be satisfied, though its satisfaction does not conclude the decision-making process because there is still a discretion to be exercised."
15 What are "special circumstances" will vary from case to case and there is no rigid demarcation between what circumstances are special and what circumstances are not. In Holt v Hogan (No 1) (1993) 44 FCR 572 Cooper J considered the requirement of the existence of special circumstances and said at 579 that it involved a consideration:
"... whether the circumstances are such as to displace the ordinary rule against bail because the personal and other public interests underlying the proven circumstances outweigh the statutory interests and concerns evident in ss 3 and 21(6)(f)(iv) of the Act. Certain matters which touch a particular applicant, for example the time already spend in custody and the time the applicant faces in custody until the Court can determine the merits of the appeal, are matters that may be given considerable weight although in themselves they may not be decisive of the outcome in any particular case."
In Schoenmakers v Director of Public Prosecutions (supra) French J said at 74-75:
"In my opinion it can never be regarded as anything other than a special circumstance that a person should have to spend a year in prison unconvicted of any offence."
In that case his Honour found two special circumstances which justified the release of the appellant on bail pending the hearing of his appeal, namely his particular connection with Australia and the fact that there was no evidence to suggest that he was in Australia as a fugitive and secondly, the length of time that he would have spent in prison without trial if he was not released pending the appeal. That period was in excess of one year.
16 The determination of whether "special circumstances" exist must be considered by reference not only to circumstances which are "special" in the sense to which I have already referred but which must also take into account what French J referred to in Schoenmakers v Director of Public Prosecutions (supra) as "broad community standards". In Holt v Hogan (No 1) (supra) Cooper J took a similar approach and said at 578-579:
"In my view the correct approach is to start by identifying the policy and public interest underlying the provisions of the Act. The principal objects of the Act are set out in s 3 ...Additionally, one bears in mind the concern of the legislature, in providing that special circumstances be established before bail is considered, as reflected in the Explanatory Memorandum which accompanied the Extradition Bill in 1987, namely that experience has shown that there is a very high risk of persons sought for extraditable offences absconding. As Foster J said in Schoenmakers (No 2), these circumstances dictate that the Court approach the matter with an attitude of circumspection.
Against these matters one then identifies and weighs the particular circumstances of the applicant for bail keeping in mind broad community standards including a predisposition against unnecessary or arbitrary detention in custody. In considering the circumstances of a particular applicant for bail one does not exclude those circumstances which ordinarily would fall for consideration on an application for bail where a person is charged domestically for the commission of a crime in this country. All personal circumstances are taken into consideration, notwithstanding that some or all of them will again fall for consideration if special circumstances are established as a condition precedent to the exercise of a jurisdiction to grant bail.
The special circumstances which the applicant for bail must establish are those which satisfy the Court that it is justified in departing from the presumption implicit in s 21(6)(f)(iv) of the Act that ordinarily bail is not to be granted. This is the same approach taken at common law where `special' or `exceptional' circumstances must be demonstrated (see for example R v Ladd; R v Murphy (1958) 75 WN (NSW) 431 at 432-433). Of course, unless the Court was satisfied that it as not probable that the applicant would abscond, it is hard to imagine any situation where special circumstances would be made out. But in assessing that probability regard may be had to the personal circumstances of the applicant and the ability of the Court to impose conditions which maximise the likelihood that an applicant will answer bail. It is not in my view that the circumstances are so exceptional or special that it is not probable that the applicant will abscond which is the sole or appropriate test required by s 21(6)(f)(iv), but rather whether the circumstances are such as to displace the ordinary rule against bail because the personal and other public interests underlying the proven circumstances outweigh the statutory interests and concerns evident in ss 3 and 21(6)(f)(iv) of the Act. Certain matters which touch a particular applicant, for example the time already spend in custody and the time the applicant faces in custody until the Court can determine the merits of the appeal, are matters that may be given considerable weight although in themselves they may not be decisive of the outcome in any particular case."
17 In Bertran v Minister for Justice (supra) the majority of the Court agreed with these observations, as they had with the observations of French J in Schoenmakers v Director of Public Prosecutions (supra) as to the manner in which the Court should approach the issue of special circumstances under s 21(6)(f)(iv). The majority then made observations in relation to s 15(6) of the Act which, in my opinion, are also applicable to s 21(6)(f)(iv) of the Act. Their Honours said at 164:
"Under s 15(6) one starts with the presumption implicit in the subsection, and explicit in the explanatory memorandum, that ordinarily bail is not to be granted. One then asks whether an applicant has established the existence of special circumstances which displace that presumption. One does not ask whether there are special circumstances in the abstract but whether there are `special circumstances justifying such remand'. In answering the question it is appropriate to take into account the particular circumstances of the applicant together with the broad community standards including a predisposition against unnecessary detention in custody."
Of course, under s 21(6)(f)(iv) one is not concerned with "special circumstances justifying such remand" but rather whether there are "special circumstances justifying such a course", namely the course of ordering "the release of [the applicant or appellant] on bail on such terms and conditions as the court thinks fit."
18 It is important, in my view, to take an overall view of the circumstances which attend upon the applicants' applications for bail when considering whether there are relevant circumstances. Individual or specific circumstances may not, of themselves, be special in any relevant way but an accumulation of non-special circumstances may well build up into an overall special circumstance or special circumstances. Further there may be an inter-relationship between different circumstances which will heighten the significance of each circumstance.
Background to extradition proceedings
19 Both applicants are citizens of Mexico. It is not necessary to rehearse the events and circumstances which led up to August 1994 but at the end of that month both applicants left Mexico and have not returned since. Mr Pasini is the brother-in-law of Mr Cabal who married Mr Pasini's sister. Mr Cabal was the owner of the Banco Union and another bank in Mexico. Between August 1994 and February 1997 the applicants lived in a number of countries such as France, Spain, Italy and the Dominican Republic. The applicants and members of their families were issued with Dominican Republic passports under assumed names and they travelled to Australia under these passports. Between 31 August 1994 and 15 May 1998, according to the Magistrate, thirteen warrants of arrest were issued by Mexican judges for the arrest of Mr Cabal. He was arrested on 11 November 1998 in Melbourne pursuant to a provisional warrant issued on 10 November 1998 under s 12 of the Act and was remanded in custody.
20 By diplomatic notice dated 31 December 1998 Mexico requested his extradition in respect of extradition offences contrary to the Law of Credit Institutions of Mexico (twenty-three offences) and the Federal Criminal Code in Matters of Common Law for the Federal District and in Federal Matters for the Republic of Mexico (three offences). The documents relied upon by Mexico to satisfy the requirements of "supporting documents" for the purposes of s 19 of the Act were received by the Commonwealth of Australia on 6 January 1999 and on 7 January 1999 the Minister for Justice and Customs signed a notice pursuant to s 16(1) of the Act. Between 13 April 1998 and 7 January 1999 four additional warrants of arrest were issued by Mexican judges for the arrest of Mr Cabal. By diplomatic notice dated 11 February 1999 Mexico requested Mr Cabal's extradition in relation to these additional four warrants. On 19 February 1999 Mr Cabal was brought before the Magistrate pursuant to a second provisional arrest warrant which was issued on 16 February 1999 and on 30 March 1999 the Minister for Justice and Customs signed a notice pursuant to s 16(1) of the Act.
21 On 18 January 1996 and 29 August 1996 two warrants for the arrest of Mr Pasini were issued by Mexican judges. On 11 November 1998 Mr Pasini was taken into immigration detention and on 27 November 1998 he was arrested in Melbourne pursuant to a provisional warrant of arrest issued on 26 November 1998. He was remanded in custody. By diplomatic notice dated 20 January 1999 Mexico requested Mr Pasini's extradition in respect of extradition offences contrary to the Law of Credit Institutions of Mexico in connection with the Federal Criminal Code in Local Matters for the Federal District and in Federal Matters for the Republic of Mexico (two offences) and the Federal Criminal Code in Local Matters for the Federal District and in Federal Matters for the Republic of Mexico (one offence). On 21 January 1999 the Minister for Justice and Customs signed a notice pursuant to s 16(1) of the Act in relation to Mr Pasini.
22 There is presently a proceeding before the Federal Court challenging the validity of the s 16(1) notices and it is anticipated that this proceeding will be heard in February 2000.
23 After Mr Cabal and Mr Pasini were taken into custody their legal representatives issued proceedings in Mexico known as "incidental suspension proceedings" in conjunction with what are known in Mexico as "Amparo Proceedings" which are proceedings challenging the lawfulness of the arrest warrants. On 20 January 1999, and in order to correct an error again on 23 February 1999, a Mexican court made interim orders that the execution of the arrest warrants against Mr Pasini be stayed upon the conditions that within three days of returning to Mexico he provide a bond in the sum of 500,000 Pesos ($US50,000) and within 48 hours of returning to Mexico he appear before a criminal judge and the District Court. Similar orders have been made in respect of the arrest warrants issued against Mr Cabal with the exception of the third arrest warrant in the second request which includes an offence of money laundering for which an accused, under Mexican law, cannot be released from custody. On 3 March 1999 another Mexican court made a declaration to the effect that the warrant issued on 18 January 1996 against Mr Pasini was still in force and pending for execution.
Activities of applicants
24 Mr Cabal came to Australia in February 1997 with his wife and four children presently respectively aged 17, 15, 13 and 8 years. Mr Pasini married his wife in December 1995 and has no children. They came to Australia in April 1997. Mr Cabal's children have attended schools in Melbourne and have become involved in numerous sporting and cultural activities.
25 When the applicants arrived in Melbourne Mr Cabal established a food importing business and Mr Pasini worked in that business. Mrs Cabal worked in the business part-time and Mrs Pasini enrolled as a full-time student in a University course.
Mr Cabal's movements between 1994 and 1997
26 Mr Cabal says that prior to August 1994 he was a very successful businessman in Mexico with significant political standing. He had supported a presidential candidate who was assassinated in March 1994 and he says it was expected that he would support the candidate who was elected President in August 1994 but he did not do so. In August 1994 Mr Cabal and his family were holidaying in Europe for four weeks. Mr Cabal was told to attend a meeting with the Finance Minister in Mexico on 31 August 1994, which he did. He was told there were financial irregularities in the trading positions of his two banks and he was instructed to meet with the head of the National Banking Commission on 1 September 1994. He told the psychologist Mr Cummins that he reassured the head of the National Banking Commission that there were no financial irregularities in the trading positions of his banks and said he would return to Europe to complete his holiday with his family but would make himself available to return to Mexico to assist the Finance Minister and the head of the National Banking Commission if required and if given twenty-four hours notice. He then returned to holiday with his family in France leaving Mexico late on 1 September or early on 2 September 1994 after having met with a criminal lawyer.
27 Mr Cabal went to the United States of America on 2 September 1994 and France on 3 September 1994. He learned on 5 September 1994, through watching CNN News on television that the head office of his bank, Banco Union, had been surrounded by police, that the bank was under some form of administration, that there were charges against him and that he was a fugitive from justice.
28 Mr Cabal told Mr Cummins that he became frightened for his life and lives of his wife and children because of the change in the political climate and he arranged for his wife and children to live in France. Later the family lived in Spain. Whilst the family was living in France Mr Cabal's wife and Mr Pasini were interviewed by Mexican police and told that they and the children would suffer serious consequences if Mr Cabal did not give himself up to Mexican authorities. Mr Cabal then went to Italy where he was joined shortly afterwards by his wife and children. They remained in Italy for approximately one year. Mr Cabal went to the Dominican Republic and in or about September or October 1996, whilst living in the Dominican Republic, Mr Cabal and his wife and children were provided with new birth certificates and Dominican Republic passports under assumed names. It was under these documents that Mr Cabal and his family entered Australia in October 1996 for one month and then after returning to Italy for a short time returned to Australia in February 1997 where they have remained. Since leaving Mexico Mr Cabal has travelled to the United States of America, Switzerland, Japan, France, United Kingdom, Italy and Belgium.
29 Mr Cabal told Mr Cummins that the new birth certificates were issued because he was regarded as a political refugee and that the passports were issued on "humanitarian grounds". These assertions were not otherwise verified and for present purposes I give them little weight. What is relevant about this documentation is that it shows Mr Cabal's ability and willingness to obtain false identities and false travel documentation.
30 It is important to note that whilst living in France and Spain Mr Cabal was not living with his wife and children for some time. Mr Cabal says that the reason for this was the he was concerned he could have been arrested by Mexican authorities. This is relevant because it bears upon the submission he makes that there is a low risk of him absconding because of, inter alia, his ties to Melbourne through his wife and children and his placing the interests of his children ahead of his own safety or ability not to be detected by Mexican authorities.
31 The Dominican Republic passport was issued to Mr Cabal on 1 April 1996 in the name of Rafael Certi Merritt. This passport discloses that between 27 June 1996 and 24 August 1998 Mr Cabal used the passport to travel to Dominican Republic, Italy, Argentina, Uruguay, Australia, New Zealand, Indonesia, Singapore, Hong Kong, South Africa, Malaysia, Thailand, Japan and The Phillipines.
32 The Dominican Republic passport was found at Mr Cabal's house in Brighton on 11 November 1998, the day he was arrested pursuant to a provisional arrest warrant. At the same time two other Dominican Republic passports were found in the house. Both were in the name of Rafael Certi Merritt and contained a photograph of Mr Cabal as the holder of the passport. One passport shows a date of issue of 28 June 1996, an expiry date of 28 June 1998 and shows that it has been used for travel to the Dominican Republic. The other passport shows a date of issue of 17 September 1998 and does not show any sign that it has been used. Its expiry date appears to be 17 September 2004. There were also discovered at the same time a Republic of Uruguay driver's licence and international driver's licence in the name of Rafael Certi Merritt and a number of credit cards in the same name.
33 Mexico has also produced a copy of a Republic of Uruguay identity card in the name of Rafael Certi Merritt which appears to bear a photograph of Mr Cabal as the photograph is similar to photographs of Mr Cabal on other documentation.
34 On 15 October 1996 Mr Cabal, in the name of Rafael Certi Merritt, applied to the Department of Immigration and Multicultural Affairs for a long stay temporary business visa. The application included his wife and children under assumed names and shown as citizens of the Dominican Republic. His wife was named Natalia Certi and his children were named, Luis, Claudia, Mirian and Teresa. The application was approved on 25 March 1997. Mr Cabal made an application in Australia for refugee status but it was made after his arrest on 11 November 1998.
35 In the course of the proceeding before the Magistrate Mr Cabal said he became aware in 1994 and 1995 that requests had been made by Mexico for his provisional arrest by a number of countries although he had no difficulty in renewing his visa in France in January 1995.
36 On 11 November 1998 officers of the Department of Immigration and Multicultural Affairs and the Australian Federal Police, as well as finding the Dominican Republic passports and the other documentation in the name of Rafael Certi Merritt, also found at Mr Cabal's home the following documents:
* Dominican Republic passports in assumed names for each of Mr Cabal's wife and four children and the family nanny. The names on the passports respectively were Natalia Righi de Certi, Natalia Righi Cusine, Luis Certi Righi, Claudia Certi Righi, Mirian Certi Righi, Teresa Certi Righi and Esther bel Fernandez;
* Republic of Uruguay identity cards in assumed names for each of Mr Cabal's wife, four children and brother-in-law Pedro Pasini, the assumed names being respectively Natalia Righi de Certi, Natalia Righi Cusine, Luis Certi Righi, Claudia Certi Righi, Mirian Certi Righi, Teresa Certi Righi and Cesar Del Rosario Mercado Fernandez;
* Dominican Republic identity card and driver's licence in an assumed name for Mr Cabal's wife, the assumed name being Natalia Righi Cusine.
37 Between 24 and 26 October 1995, whilst Mr Pasini was living in France, he was questioned by French police officers in the presence of a Mexican police officer. In the course of that questioning Mr Pasini said that Mr Cabal was known to people in Spain as César Vigil and in France as Mr Pierre and that some people Mr Pasini met in France knew Mr Pasini as Mr Paul.
38 On 11 November 1998 officers from the Department of Immigration and Multicultural Affairs and the Australian Federal Police seized bank statements in the name of "Mr Rafael Certi Merrit New York Investment Limited" from Mr Cabal's home. These statements disclosed that between 26 March 1997 and 19 October 1998 amounts in excess of $2.5 million were transferred into the account from overseas. In the course of the proceeding before the Magistrate Mr Cabal said that on 30 August 1994 he organised a personal line of credit from a bank in Switzerland in the sum of approximately $110 million. The evidence does not disclose whether that credit line is still available or whether Mr Cabal has ever drawn down on that facility.
Mr Pasini's movements between 1994 and 1997
39 Mr Pasini left Mexico on 31 August 1994 and has not returned since that date. Mr Pasini says that he left Mexico to help support his sister and to look for work in Europe. He says that he spent time in France and Spain and when he was interviewed by police while in Spain he was made aware of the warrant for his arrest. He was warned against associating with his sister and was told that if he returned to Mexico he would be killed. Mr Pasini then moved separately from his sister and in November 1995 Montserrat Karras joined him in Spain and they were married in Argentina in December 1995. Mr Pasini says he carried on business in parts of South America and in mid-1997 went to the Dominican Republic and obtained passports under an assumed name and joined his sister in Australia. He worked for Mr Cabal in Australia. On the day he was taken into immigration detention on 11 November 1998 a number of travel documents were identified by him to officers of the Department of Immigration and Multicultural Affairs and the Australian Federal Police. One was a Mexican passport in his name which showed that between 31 August 1994 and 2 August 1996 he travelled to France, United States of America, Spain, Portugal, Argentina, Chile and Uruguay.
40 Another travel document Mr Pasini produced to the officers on 11 November 1998 was a passport issued by the Dominican Republic on 22 May 1996 in the name of Gregorio del Montero with a photograph of Mr Pasini as the holder of the passport. The passport discloses that Mr Pasini used the passport between 18 July 1996 and 8 August 1998 to travel to the Dominican Republic, Argentina, Uruguay and Australia. The passport also contains a visa allowing the holder to remain in Australia until 4 September 2001.
41 Mr Pasini also handed to the officers the following documents:
* A Dominican Republic passport issued on 22 May 1996 in the name of Aracelis Pichardo de Montero with a photograph of Mr Pasini's wife as the holder of the passport;
* Copies of Dominican Republic birth certificates in the names of Gregorio Montero and Aracelis del Carmen;
* Copies of Republic of Uruguay identity cards in the names of Gregorio de Jesus Montero Montero and Aracelis del Carmen Pichardo Diaz.
It should also be noted that Mr Pasini said in evidence before the Magistrate that he had not applied for political asylum in any country he had visited prior to 11 November 1998.
42 It is necessary to set out in some little detail what Mr Pasini did on 11 November 1998 as it is relied upon by him in support of his submission that there is a low risk of him absconding if he is granted bail. On the morning of 11 November he was ready to go to work when he received a telephone call from Mr Cabal's son, Carlos Junior, who told him that Mr Cabal was missing and that someone had telephoned their house, spoken in Spanish with a Mexican accent and asked for his mother by her real name Theresa, although she was known in Australia as Natalie. Mr Pasini believed they had been discovered but went to Mr Cabal's home because Carlos junior had sounded scared and his parents were not at home. By this time Mr Cabal had been arrested. Mr Pasini told his wife to go to the university as she would normally and he went to Mr Cabal's house because it seemed the police might be there. When he reached Mr Cabal's house it was surrounded by people and cars but there were no police in the house. He telephoned the emergency telephone number to see if there had been a report of an emergency at the house but nothing had been reported. He left Carlos junior and the family's nanny at the house and drove towards the nearest hospital to see if something had happened to Mr Cabal. A short distance away he was detained by the police. After he was detained Mr Pasini telephoned his wife at their flat, told her to wait for an immigration officer to come and that she should go with him, which she did. Later in the day he went to the flat with police and an immigration officer. They did not have a search warrant but Mr Pasini gave the immigration officer their passports and he allowed the police to search the house.
Chronology of Australian proceedings
43 As one of the special circumstances relied upon by the applicants is the length of time they have spent in custody it is necessary to understand what has occurred since they were first taken into custody.
44 On 15 February 1999 the s 19 hearing was listed to commence on 15 June 1999. Counsel for Mexico was prepared to commence earlier but the date was fixed for the convenience of the applicants. The Magistrate directed that particulars of the applicants' extradition objections be served on or before 27 April 1999.
45 On 19 March 1999 the applicants commenced a proceeding in the Federal Court challenging the s 16(1) notices signed by the Minister for Justice and Customs on 7 and 21 January 1999. Subsequently Mr Cabal instituted a similar proceeding in respect of the s 16(1) notice signed on 30 March 1999.
46 On 11 May 1999 the applicants applied to the Magistrate for an adjournment of the s 19 proceeding sine die on the ground that the s 16(1) proceeding in the Federal Court should be finalised first and that they did not have sufficient time to prepare their case in respect of their extradition objections. The application was opposed by Mexico and dismissed by the Magistrate. Counsel for Mr Cabal estimated the hearing would take eight weeks instead of the three weeks for which the hearing had been set down initially and the Magistrate fixed a new commencement date of 19 July 1999 and directed the applicants to serve their particulars of extradition objections by 27 May 1999 and their affidavits by 18 June 1999.
47 On 18 June 1999 Mr Cabal unsuccessfully sought an adjournment of the hearing sine die pending the decision of the Federal Court in respect of the s 16 proceeding. The applicants were given until 21 June 1999 to serve their affidavits. On 12 July 1999 the applicants successfully applied for a one week adjournment and the s 19 hearing commenced on 27 July 1999. Mexico presented its case in respect of the supporting documents and the dual criminality issue between 28 July 1999 and 24 August 1999 and the applicants presented their case in respect of their extradition objections between 24 August 1999 and 19 November 1999. There was an adjournment between 14 September and 5 October 1999 when the Magistrate was unavailable. Final submissions were presented between 26 November and 1 December 1999. The Magistrate delivered her reasons and made her orders on 17 December 1999.
Other proceedings
48 Other proceedings have been instituted by the applicants. On 1 June 1999 the applicants applied to the Supreme Court of Victoria for a declaration that the application of restraints or shackles on them when being transported between prison and the Court was unlawful. On 18 June 1999 O'Bryan J dismissed the application holding that the requisite approval for the restraints had been given under the relevant regulations by the required person: Peninche [sic] and Another v McDonnell and Secretary to the Department of Justice [1999] VSC 221. His Honour also held that the relevant prisoner governor had formed a belief on reasonable grounds that the application of the restraints to the applicants was necessary to prevent their escape. As the applicants rely upon the conditions in which they are transported to and from prison and court and their treatment by officers during that transportation as a special circumstance warranting the grant of bail, it is desirable to set out O'Bryan J's reasons for his conclusion that it had not been shown that the Governor's belief had been formed unreasonably and that the use of the restraints in the circumstances was lawful. His Honour said at [50]-[50-7]:
"It is not the function of the court to determine for itself whether the application of restraints was and is necessary to prevent the escape of the applicants. The court has a more limited role of reviewing Mr Allgood's belief. The court may determine whether it is reasonable for Mr Allgood to believe on reasonable grounds that restraints are necessary to prevent escape but may not determine the question for itself.It was not suggested by Mrs Hampel that Mr Allgood is not acting in good faith. Her argument was that there are no reasonable grounds upon which Mr Allgood could reasonably form the requisite belief.
Mr Allgood relies upon three principal grounds:
1. Past history of evading the law.
2. Access to considerable funds to effect an escape with assistance.
3. Prison intelligence showing that money has been offered by the applicants or their agents to assist and support an escape attempt.
Was Mr Allgood's belief so unreasonable that no reasonable Governor would have formed such a belief? The question may be answered by inquiring whether Mr Allgood took into account all relevant matters or gave too much weight to information provided to him or failed to take into account a relevant matter.
It was not suggested that Mr Allgood failed to take into account some relevant matter. Rather it was suggested that he gave too much weight to `prison intelligence'.
In my opinion, Mr Allgood was required to evaluate the prison intelligence in the circumstances that the applicants were a step ahead of police officers all around the [world] for four years, that they have the financial means to effect an escape and that during transport from prison to court and return the opportunity to escape lawful custody is increased. In these circumstances, `prison intelligence' has great credibility and may more readily be acted upon by a person in Mr Allgood's position of responsibility as manager of the Security and Emergency Services Group.
The decision-making power is entrusted to Mr Allgood and this court may not intervene unless it is shown that he has formed the requisite belief unreasonably. This has not been shown, in my opinion.
The use of restraints is an extreme measure in the case of persons who have not been convicted of any crime in this country and are awaiting extradition proceedings in custody. The use of restraints in the case of the applicants is not for the purposes of punishment but simply for security reasons. Their use, in the circumstances is lawful."
Bail applications
49 On 16 February Mr Cabal filed an application for bail under s 15 of the Act. A preliminary point, argued before a Magistrate on 19 February 1999, was determined against Mr Cabal and the bail application was withdrawn.
50 On 23 February 1999 Mr Pasini applied to a Magistrate for bail. The hearing commenced on 2 March 1999 and bail was refused on 5 March 1999, the Magistrate holding that there were no special circumstances that justified remand on bail. On 29 March 1999 Mr Pasini applied to the Federal Court to review the Magistrate's decision. On 23 April 1999 Kenny J found that the Magistrate had not misdirected himself by misconstruing ss 15(2) and (6) of the Act and her Honour dismissed the application. Mr Pasini appealed to the Full Court and on 17 August 1999 the Full Court dismissed the appeal: Bertran v Minister for Justice (supra).
51 On 23 August 1999, in the course of the s 19 proceeding before the Magistrate, Mr Pasini applied for bail. The Magistrate stopped the application on the grounds that she was not satisfied there had been a change of circumstances such as to justify her determining the question whether "special circumstances" existed which justified the grant of bail.
52 On 8 November 1999 Mr Cabal applied to the Federal Court for an interlocutory injunction restraining the Minister for Justice and Customs and the Director of Port Phillip Prison from further detaining him in custody pending the hearing and determination of his challenge to the s 16(1) notices then pending before the Federal Court on such conditions and surety as the Court deemed fit. On 3 December 1999 Kenny J dismissed the application holding that the grant of interlocutory relief was not capable of being seen as appropriate in the sense referred to by the majority of the High Court in Jackson v Sterling Industries Limited [1987] HCA 23; (1987) 162 CLR 612.
Psychological reports and opinions
53 The arrest and imprisonment of the applicants has had a significant effect on the applicants and the members of their families. It has affected their physical and mental well-being. In particular Mrs Cabal says the children have found the separation from their father very difficult and they are missing his support and companionship. Mrs Cabal herself has encountered a number of health problems including difficulty in sleeping and constant tension and anxiety. Mr Cabal is worried about the effect his imprisonment is having on Mrs Cabal and his children. Mrs Cabal visits Mr Cabal five times a week and the children visit him once or twice a week. Mrs Pasini has observed emotional and physical changes in Mr Pasini since he was moved into the Sirius East Unit. Mrs Pasini visits Mr Pasini five times a week. She has observed that Mr Pasini has lost weight, become stressed and withdrawn and is depressed. Mrs Pasini herself has been treated for stress and anxiety and has had to give up her studies because of the time it takes to visit Mr Pasini.
54 Psychological reports and opinions have been tendered by the applicants in relation to themselves, their wives and Mr Cabal's children. Those reports have been received and admitted as confidential exhibits and my consideration of them is recorded in Part I of the confidential appendix to these reasons. That appendix is to remain confidential and is not to be published to anyone other than the parties until further order.
Conditions in which the applicants are held in prison
55 When the applicants were first taken into custody they were held at the Melbourne Custody Centre. Their wives were taken into immigration detention and were held at the Maribyrnong Detention Centre for some weeks until around 19 January 1999 when they were issued with bridging visas. The wives and Mr Cabal's children have made applications for protection visas under the Migration Act 1958 (Cth) and there are presently proceedings in the Federal Court seeking to review decisions of the Tribunal refusing to grant them refugee status. Mr Cabal and Mr Pasini have also applied for protection visas.
56 The applicants were held at the Melbourne Custody Centre for a short time and were then transferred to the Melbourne Assessment Prison where they remained until the beginning of January 1999. On 4 January 1999 the applicants were transferred to Port Phillip Prison. The Prison is divided into a number of units and different categories of prisoners including those on remand are kept in different units. There is no separate area to house those on remand. The applicants were placed in the transit unit for some three weeks and then moved into the Scarborough South Unit with mainstream prisoners. There they remained until August 1999 when they were transferred to a maximum security unit used for the protection of prisoners. This unit is called Sirius East.
57 Mr Shane Kelly, the head of operations at Port Phillip Prison and an experienced prison officer, said that the applicants were moved into protective custody in the Sirius East unit because information was received which indicated that their safety would be in jeopardy if they were left in Scarborough South. Mr Kelly's decision was supported by the Correctional Services Commissioner for Victoria. Within the Victorian prison system, there is no viable alternative to detaining the applicants other than in Sirius East. Sirius East is used as a protective unit to house prisoners whose safety may be in jeopardy if they mix within the mainstream population. At the present time there are twenty-two prisoners in Sirius East. Sirius East has less facilities available to the prisoners than are available in Scarborough South. The prisoners in Sirius East are not able to leave the unit unless they have a specific reason for doing so such as a professional visit or a medical visit. Prisoners in the Scarborough Unit have access to the prison library and certain work activities. Whilst the applicants were placed in the Scarborough Unit Mr Pasini worked in the prison library.
58 The conditions in which the applicants are kept in the Sirius East unit is one of the factors relied upon by the applicants as constituting special circumstances or a component of special circumstances so it is necessary to understand the evidence in relation to the conditions in that unit. There is no doubt that the conditions are very difficult and are harsher than the area where mainstream prisoners are kept. Evidence was given about these conditions by Mr Kelly and, in particular, by another prisoner presently housed in the Sirius East unit. The applicants also gave evidence as to the difficulties they were encountering in the Sirius East unit. Notwithstanding the vehemence with which the other prisoner criticised the conditions in the Sirius East unit there is little conflict in the evidence as to the nature and extent of those conditions. As I have noted earlier, Sirius East is a specialist unit which predominantly holds prisoners who are in need of protection from other prisoners. Such prisoners are Crown witnesses who may be subject to threats, prisoners who are at risk because of the nature of their offences such as sex offenders against children, prisoners who have been serving policemen, prisoners who have been attacked by other prisoners and prisoners who have been subjected to extortion because they are perceived to have access to money. Notwithstanding the nature of the occupants Mr Kelly said that Sirius East is a quiet and safe area when compared to the mainstream section of the prison and that there are very few incidents of violence in it.
59 The cells in Sirius East are mainly composed of single person cells measuring two metres by three metres with no natural light or air. The cells are very spartan and they hold a shower, a toilet, a hand basin, a single bed and a small desk and chair. The doors are locked at 7.30 pm each night and are opened at 8.30 am the next morning. The cells run along the perimeter of the room that comprises the common area of the unit which the prisoners can access when the cells are opened in the morning. Adjacent to the common area is an empty yard, six metres by five metres and adjacent to the yard is a small work room where paid work is available of a minor nature involving the screwing of nuts onto bolts. Employment is also available in the stores' section of the prison. The opportunities for employment are less than those in the mainstream area as the protection needs of the prisoners in Sirius East curtail their ability to mix with other prisoners.
60 The prisoners in Sirius East are allowed access to the prison library for a period of one and three quarter hours once a week and they can attend a TAFE course at the Prison Program Centre once a week. These courses are often cancelled.
61 Within the common area outside the cells there are recreational facilities such as a table tennis table and a pool table and some fixed weight equipment. The prisoners in Sirius East also have access to a large exercise yard for approximately two hours a day and this occurs on a roster basis as the area has to be shared with other units in the prison. This exercise area includes a tennis court, basketball court, a running track and a swimming pool.
62 Although it appears that a number of the prisoners in Sirius East have medical conditions including AIDS and Hepatitis C, Mr Kelly said the prisoners are not placed in Sirius East for any reason related to their medical condition or status.
63 The conditions in Sirius East cannot be considered to be stimulating and are not conducive to intellectual activities. I make the observation in this way because it appears from the evidence of the other prisoner and the applicants that they are finding the conditions in Sirius East rather deadening and dampening. For example, the other prisoner describes Sirius East as "a place which resonates with claustrophobia and depression". I refer in Part II of the confidential appendix to other observations of this prisoner.
64 For present purposes I accept the accuracy of these observations and the sincerity with which they are stated. However, I would expect that these observations would apply to any person incarcerated involuntarily in a prison who has had a background and way of life similar to the other prisoner and the applicants. This is not to diminish or belittle the effect of a prison regime on all prisoners but I draw attention to it in this way to demonstrate that it is an inevitable part of prison life that persons with a form or way of life and interests and aspirations like the other prisoner and the applicants will have these feelings which are dictated not only by the conditions in Sirius East but by the fact of being detained in prison. There is no doubt that life in prison can have a significant effect on the psyche and psychological make up of prisoners. This is demonstrated by the observations of the other prisoner in pars 33 to 37 of his affidavit. I have placed little weight on those observations in respect of the issues presently before me. The issues which the conditions in Sirius East do raise is whether they are so out of the ordinary in respect of prison life that they should be regarded as special circumstances for the purposes of s 21(6)(f)(iv) of the Act. The applicants have been placed in Sirius East, not because of anything that they have done or traits they have exhibited, but rather because the prison authorities have formed the view that they need to be protected from other prisoners.
Conditions under which the applicants are transported to and from prison
65 The conditions in which the applicants are transported to and from Port Phillip Prison and their treatment by officers during that transportation are relied upon as constituting special circumstances or as a component of special circumstances. These conditions have caused me considerable concern particularly as a number of matters raised by the applicants have not been denied or explained by those responsible for transporting them in custody or holding them in custody whilst they are away from the prison.
66 The applicants are strip searched and cavity searched every time they leave Port Phillip Prison to go to court and they are strip searched every time they receive a visit. Mr Cabal gave the following evidence:
"7. When I am shackled, different handcuffs are put on me from the usual handcuffs. They are not round. They are solid metal blocks and are very heavy. Sometimes the cuffs are put so tight that they leave marks on my wrists. When the handcuffs are on, a large leather belt with a metal ring in the front is put around my waist. It has a lock on the front and the handcuffs are attached to this. Sometimes then I am asked to sit or to stand for the shackles. The shackles are very thick metal with a hinge in the middle. The two leg shackles are chained together at the ankles. There are different lengths of chain - between 12 and 17 links of chain. With the 12 link chain I cannot walk properly or step into the transport truck, so I am pushed in by the officers. The 12 link chain is used by the officers when I have complained about my treatment, or when there are particular officers on duty. Some officers are better than others and some treat us well but others do not.8. At the beginning, the shackling was done in the prison transport van, which was easier. Now after I have complained, the shackling is done in the prison and sometimes we have to walk to the truck, which can be very uncomfortable and difficult. Sometimes I am left in shackles at the prison waiting for the truck. So that means we can spend more than two hours at a time in shackles.
9. The severity of our treatment depends on the individual officers - who they are and whether they are angry with us. For example, one day during the s 19 proceedings when the officers were pulling me up roughly on the belt, I complained to my lawyers who told the Magistrate in the morning. At lunchtime, instead of being taken to a cell, the officers put both of us in what we called a `cage'. This is the size of a public telephone booth, triangular with solid walls on two sides and on the other side it is metal with small round holes like a bird cage. There is a small built in chair in the corner but with two people there was no room to sit. So we had to stand in that place for a whole hour. The officers gave us lunch but we refused to take it because the conditions were so terrible. The officer laughed at us about this. When we went back to court I explained what happened to the Magistrate. During a break in there [sic] afternoon, the officer pushed and shoved us.
10. After court the officers put us in a big transport truck instead of the small one we are usually transported in. The truck had four or five compartments with other prisoners in the other compartments. I had never seen these prisoners before. They were screaming at us, insulting and threatening us. The officers drove the truck to the prison and left it parked outside Port Phillip for about one hour. It was a very hot day - in the high 30's and there was no ventilation in the truck. The prisoners continued screaming at us. It was very uncomfortable. When the officers came to take us back to our Unit we were told we would now always be taken by belts. And that is what has happened. The attitude of the transport officers has been one of the worst aspects of being in jail. Marco and I have always obeyed their instructions and I find it unacceptable that the officers treat us so badly, and that if we complain they treat us worse. I didn't expect this in Australia."
Mr Pasini gave similar evidence:
"The transport conditions to and from court get worse each time. When we are searched, the officers have broken the interior of my suit and two pairs of shoes. We must travel in a van without windows, and it is impossible to get up into the truck because of the chains on our legs. In the court breaks we have very little time to talk to our lawyers. Being in court means I cannot see my wife, because of the time it takes for us to get back to prison. In the last month the transport officers have become rougher and they pull me up from the belt around my waist and it hurts. We have never been violent, and we have always done what they ask but the officers still use force all the time."
This evidence was not the subject of any answering material and I find it quite disturbing that the applicants are being treated in this way. It is important to remember that the applicants have not been convicted of any offence. True it is they have been found by the Magistrate to be eligible for surrender, but that is no reason for them to be treated in a callous, inhumane and discriminatory manner.
67 I am also concerned about the manner in which the applicants were treated at the Melbourne Custody Centre after the Magistrate handed down her decision on 17 December 1999. Their access to their lawyers was interrupted and inhibited in a manner which was not explained or sought to be justified. Two further incidents on the day the Magistrate handed down her decision exacerbate my concern that they are being subjected to discriminatory and arbitrary treatment for no apparent reason. It is not suggested that they are unruly or difficult prisoners. The Magistrate directed the escort officers to allow Mr Cabal to stay in Court for five minutes to confer with his lawyers. After a few minutes one of the officers said that time was up. There were still issues to be discussed and the lawyers told the officers they would come downstairs straight away and would ask to use the interview room. Mr Cabal's evidence as to what occurred was as follows:
"3. Marco and I were then taken downstairs and put in a cell. After a few minutes, officers came to the cell and shackled us. One of them said that we were to be taken back to Port Phillip Prison immediately. I said that I needed to see my lawyers. He responded that this would not be allowed. Then, someone whom I could not see called the officers away. The officers unshackled us, locked us in the cell, saying that the police (they used the word 'coppers') want to speak with them.4. Marco and I spent about two hours in the cell. There was a toilet in the cell, but no toilet paper. We asked for paper, we were told by an officer that they were not allowed to provide it.
5. After about two hours, the escort officers returned, shackled us, and took us toward the transport truck. The officers had shackled my feet with the shortest variety of chain, the 12-link version. (They had done this one the way to Court that morning as well). I tried to walk as fast as I could to the truck, wearing the 12-link chain. One of the officers said, 'So, you're in a hurry?' I said that I had to urgently call my lawyers, to give them instructions for my appeal. The officers loaded us into the back of the truck at about 3.15 pm, and closed the doors. In the back of the truck, there are no windows, only solid walls and doors. There is no circulation of air. On Friday, as occasionally happens, there was excrement smeared on the walls of the truck. Prisoners sometimes do that in transit. Marco and I remained locked in the stationary truck for about 20 minutes before the truck set off."
When the applicants finally returned to the prison later in the day Mr Cabal gave the following account:
"9. When I returned to my cell, I found that it had been searched, and left in a mess. For example, my religious pictures were thrown on the floor; letters from my children were taken from their envelopes, and thrown on the floor; the innersoles of my shoes had been removed and thrown on the floor; my clothes were scatted around the cell."
68 As Mr Galbally QC, who appeared with Ms Mortimer for the applicants, acknowledged, it is not for me on the present application to challenge the decision made by the prison authorities that restraints or shackles be applied to the applicants whilst they are being transported. The decision to place the applicants on the high security escort list was made by the Correctional Services Commissioner for Victoria and a manager in the Sentence Management Unit of the Commissioner's office. The use of shackles and manacles to prisoners on the high security escort test is standard procedure. Nevertheless it does appear that the manner in which the shackles are applied and the point at which they are applied can vary as explained by Mr Cabal.
69 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.
70 The applicants are ill-suited to be kept in Sirius East and they have not by their behaviour or attitude brought upon themselves the need for them to be incarcerated in the difficult conditions which obtain in Sirius East. Australia has obligations under Extradition Treaties to deliver up persons who are otherwise eligible for surrender and is entitled to detain them whilst the extradition process undertakes its course. Yet there is also an obligation to detain persons eligible for surrender, or undertaking the extradition process, in conditions which are not punitive, degrading, inhumane or destructive of physical or psychological well-being. If Australia is unable to provide adequate or appropriate detention facilities, albeit if necessary with a high security component, for persons arrested under provisional warrants where their extradition is sought, then that factor may in an appropriate case constitute a special circumstance warranting release on bail.
71 Although I am not satisfied on the material presently before me that the conditions in which and under which the applicants are kept and transported from prison are such special circumstances as would warrant the release of the applicants on bail, I propose to reserve liberty to the applicants to renew their application for bail if the conditions in which they are held in Sirius East deteriorate or if the manner in which they are transported to and from Port Phillip Prison continue to occur in the manner which Mr Cabal and Mr Pasini have described. In particular I am concerned if the indiscriminate and arbitrary incidents to which I have referred are repeated.
Character evidence
72 A considerable body of character evidence has been led in relation to the applicants and their families. I refer to the evidence of Margaret Davies, John Fox, Brian Müller, Tibor Schlenka, Kenneth Watson and Michael Tiernan, all of whom vouch for the character and family ties of the applicants and their families. This material is relied upon as showing the ties that the Cabal family have to the Australian community.
Home security system
73 The applicants have submitted that if I am satisfied that special circumstances exist which would warrant their release on bail I should, as an exercise of discretion, grant bail on appropriate terms and conditions such as the provision of a security bond, daily reporting, place of residence, a requirement not to leave Victoria or to attend any international point of departure and the surrender of any passports and not applying for any other passport. These terms and conditions are orthodox. What is somewhat unorthodox is a range of security requirements which it is proposed could be imposed on the applicants at the cost of Mr Cabal if I was to consider such requirements as appropriate.
74 Mr Cabal asked a private organisation Aussec Consultancy Group Pty Ltd ("Aussec") to develop a proposal for a home monitoring system which could be put into place to monitor Mr Cabal at his home if he was released from prison on bail. The proposal involves:
* Mr Cabal being confined to his home, other than for the purposes of court attendances;
* The home being monitored visually and by electronic means
* The setting up of an on-site control room in the garage and an off-site control room;
* An agent employed by Aussec being located at the on-site control room all the time;
* Visitors to the home being restricted and screened.
Mr Cabal would at all times wear a transmitting bracelet which would be pre-set so that if Mr Cabal moved outside his home the bracelet would set off an alarm. The bracelet would send a continuous signal to the on-site and the off-site control rooms. Any attempt to remove the bracelet would set off the alarm. The house would be surrounded by twenty-four sets of photo electric beams which send an alarm when broken. The agent on duty would control the beams. Video cameras would cover the whole property. Police could have access to the monitoring of Mr Cabal's movements and to the control rooms. Responses to alarms could occur by Aussec notifying the police or by installing a panel which registers the alarm at a police station. Aussec has also proposed a comprehensive transportation system to convey Mr Cabal to and from court.
75 Aussec has also proposed the use of a transmitting bracelet for Mr Pasini as well as a system of random telephone call checks to ensure that he remains at his home. Similar alarm response procedures as for Mr Cabal are proposed for Mr Pasini.
Factors relied upon as "special circumstances"
76 The applicants rely upon the following factors as constituting special circumstances, both individually and as a whole:
(a) the length of time they have spent in custody, namely thirteen and half months;
(b) the conditions of their custody in the Sirius East Unit at Port Phillip Prison;
(c) the conditions in which they are transported to and from Port Phillip Prison and their treatment by officers during that transportation;
(d) the psychological effects of the incarceration;
(e) the effect of the incarceration on their wives, and in the case of Mr Cabal on his four children and their need to have their father at home;
(f) the effect of the incarceration on their ability to defend their extradition;
(g) the fact that there is a low risk of them absconding;
(h) in the case of Mr Pasini if he was in Mexico he would be free on bail.
Mr Cabal submits that there is a low risk of him absconding for the following reasons:
* he has no history of escaping custody;
* his deliberate decision to stay in Australia after appreciating his apprehension was imminent;
* his ties to Melbourne through his wife and children (who themselves have demonstrated a sustained capacity and willingness to abide by bridging visa conditions);
* his placing the interests of his children ahead of his own safety or ability not to be detected by Mexican authorities;
* his expressed desire to fight his extradition through the Australian justice system;
Mr Pasini submits that there is a low risk of him absconding for the following reasons:
* he has no history of escaping custody;
* his conscious conduct on 11 November 1998 in not escaping and his co-operation with the authorities;
* his behaviour during his two weeks in immigration detention;
* his ties to Melbourne through his wife (who herself has demonstrated a sustained capacity and willingness to abide by abridging visa conditions);
* his expressed desire to fight his extradition through the Australian justice system.
Length of time in custody
77 The applicants have been in custody for over thirteen and a half months and, if bail is not granted, they will spend a further three months or thereabouts in custody before the hearing of their application for review of the Magistrate's decision is concluded.
78 The period of incarceration of the applicants, the conditions under which they are held and the conditions in which they are transported to and from the prison have given me great concern. In this respect I refer to the observations of French J in Schoenmakers v Director of Public Prosecutions (supra) at 74-75:
"it can never be regarded as anything other than a special circumstance that a person should have to spend a year in prison unconvicted of any offence. A presumption in favour of liberty and against deprivation of liberty without just cause runs through the traditions of the common law which Australia has inherited from the United Kingdom".
But as French J pointed out shortly after making this observation, the presumption must give way to specific provisions such as are found in s 21(6)(f)(iv) of the Act. Further, although a year in prison unconvicted of any offence might, without mare be considered a special circumstance, that period of time must be considered in the context in which it has occurred. Mexico points out, quite correctly, that some considerable part of this period has been taken up by periods during which various applications were made to the Federal Court and extensions of time were granted. Nevertheless, the length of time of the incarceration is still quite substantial. It is exacerbated by the conditions under which the applicants are held in Sirius East brought about by the need for the prison authorities to ensure the safety of the applicants.
79 Any period of incarceration must be considered in the context of the particular circumstances in which it arises. If a person was incarcerated for a year because the court system was unable to accommodate a s 19 hearing then, without more and in the absence of any significant concerns about absconding from bail, I would expect the relevant special circumstance to exist. In the proceeding before me the period of incarceration must be looked at against a background of a number of circumstances. The hearing before the Magistrate itself was complex and lengthy and involved a considerable number of witnesses, some of whom gave evidence as to the provisions of relevant Mexican laws. The applicants sought a number of adjournments, extensions of time were granted and proceedings were taken in the Federal Court to challenge the s 16(1) determination of the Minister. During the applicants' period of incarceration the court system has not stood still; it has been active in relation to the applicants in a number of respects. I am not suggesting for one moment that the applicants should be penalised or disadvantaged by taking advantage of legal proceedings open to them or by seeking to vindicate rights which they claim to have been infringed. Rather, I am seeking to explain what has occurred during a lengthy period of incarceration which, without any explanation, gives rise to great concern.
80 In the circumstances of what has occurred in relation to each of the applicants I am not satisfied that the length of time they have been held in custody is, singly, or cumulatively with the other circumstances relied upon, such a special circumstance as warrants the granting of bail. Although broad community standards would suggest that people should not be detained in prison for lengthy periods without being brought to trial or extradited, those standards would also have regard to the reasons why persons had been kept in prison for a long time, what has occurred during that period, the nature of the offences in respect of which they have been charged or detained and any prior history of false identities and evading capture. In all the circumstances I do not consider that broad community standards warrant the conclusion that the applicants' lengthy time in custody is such a special circumstance as to warrant their release on bail.
The conditions under which the applicants are held in custody
81 Until August 1999 the applicants were held in the mainstream area of Port Phillip Prison but were moved into the high security Sirius East area because of information received by the prison authorities which indicated that they might be at risk. It is not suggested that they were transferred to the high security unit for any reason other than their personal safety and their protection. Nevertheless, they have been disadvantaged substantially by the change of atmosphere and access to the facilities which they had in the Scarborough area. Mexico submits that the nature of the conditions in Sirius East are not such that should cause any particular concern to the Court and that in any event, the constraints which exist are not particularly unusual and are well within the normal range of detention within such a unit. It is therefore submitted that they cannot constitute special circumstances.
82 A prison is not, by virtue of its nature, a pleasant place in which to live for those confined in it. The conditions facing the applicants are harsh especially having regard to the lifestyle and comforts to which they were accustomed before they were taken into custody on 11 November 1998. It is also relevant to take into account that the applicants have not been convicted of any offence and are entitled in the Australian community to the presumption of innocence.
83 The difficulty is that having regard to the concerns the authorities have for their safety, there is no other place in the prison in which they can be housed. In my opinion, it is inappropriate for the applicants to be held in harsh conditions such as apply in Sirius East. Although Australia has treaty obligations to deliver up persons whose extradition is sought in accordance with the law which applies in Australia, it is also incumbent upon Australia to have appropriate facilities available to house or confine such persons pending the final determination, in accordance with the law, whether they are to be extradited.
84 However, on balance, I am not satisfied that the present conditions under which the applicants are held are such as to constitute special circumstances either singly or cumulatively with the other circumstances relied upon by the applicants. It is inevitable that if, as part of the extradition process, the applicants are to be incarcerated they will be incarcerated in conditions which apply to persons whose liberty is curtailed by law. Although the conditions presently imposed upon the applicants are harsher than would otherwise exist if their safety and protection was not a matter of concern for the prison authorities, I do not consider that the conditions are so much out of the ordinary as to justify the conclusion that they are special circumstances for the purposes of s 21(6)(iv) of the Act. Being kept in an area with persons who have been convicted of serious crimes is a necessary incident of being restrained in custody. So is the deprivation of the ability to move round at will at any time of the day and have access to recreational, sporting and educational facilities otherwise than on a limited and regimented basis. Although the persons housed in Sirius East do not have access to the same recreational area as those housed in the Scarborough area they do have access to an exercise yard with the same or similar facilities. That area is available each day to the inhabitants of Sirius East but on a roster basis because it is shared with inhabitants of other units. I make the same observations in relation to work or employment opportunities. Although Mr Pasini has lost the opportunity to work in the library as he did when he was housed in the Scarborough Unit, the applicants still have access to the library, albeit on a limited basis.
85 Although there is a concentration of a particular class of prisoner in the unit in which the applicants are housed which makes the applicants feel more uncomfortable and disadvantaged, that is a necessary incident, in the circumstances, of their being placed in an area for their own safety and protection. I cannot ignore the evidence that, according to Mr Kelly, the Sirius East Unit is a quiet and safe area where there are very few incidents of violence compared to the mainstream section of the prison. Put shortly, regrettable as it may be, the degree of deprivation of facilities and lifestyle suffered by the applicants is, relatively speaking, within the normal boundaries of what occurs in a prison environment.
Conditions of transportation
86 Mr Galbally said that the conditions of transportation showed that the applicants were suffering discrimination and that that factor constituted a special circumstance.
87 Mr Galbally submitted that I was powerless to deal with or resolve the issue of the manner in which the applicants are shackled when brought to and from Court. I took this submission to mean that it was not open for me in this proceeding to challenge the decision to restrain the applicants by shackles during transportation. I agree with that submission but I consider that I am entitled to take into account the way the shackling procedure is administered in determining whether or not there are special circumstances which warrant the release of the applicants on bail. It is the manner in which the shackling is administered and the manner in which the applicants are treated whilst they are away from prison which is relied upon as the special circumstance rather than the fact of the shackling itself.
88 Mexico submitted that shackling could not be a relevant special circumstance because of the manner in which the decision to impose the shackling regime was made. Mexico accepted that shackling was an extreme measure but said that the issue was foreclosed by the manner in which the prison authorities had made their decision and O'Bryan J's determination in the Supreme Court of Victoria. Mexico submitted that so long as the decision to impose the shackling was lawful it could not, as a matter of law, constitute a special circumstance. For present purposes I accept that submission. I do not question the need for shackling or the decision made to impose it but I do have grave concerns as to the manner in which the shackling is implemented. For example, there appears to be a discretion whether to use 12 link shackles or 17 link shackles and there is also a discretion as to the point of time in the process of transportation or the time preparatory to transportation that the shackles are put in place.
89 Mexico submitted that in order to find the method of transportation and shackling as special circumstances the Court would need to be satisfied that there was a deliberate attempt on the part of those carrying out the process of transportation to make an already uncomfortable situation more uncomfortable. Mexico submitted there is no material upon which the Court could so conclude. I do not accept that submission having regard to the evidence of Mr Cabal which has not been the subject of any response.
90 Mexico submitted that the conditions of transportation which have hitherto existed would be obviated so far as Federal Court proceedings are concerned by the ability to use the video link facilities available between the Court and Port Phillip Prison. I do not regard that regime as a desirable regime to impose upon the applicants in the circumstances of the review proceeding before the Court. As foreshadowed at the directions hearing there may be considerable reference to evidentiary matters and I consider it important that the applicants and their legal advisers have immediate access to each other during the hearing for the purpose of seeking and giving instructions. I therefore proceed upon the basis that it will be necessary for the duration of the hearing of the review proceeding before me, and any other proceeding which may be brought before the Federal Court, that the applicants be transported between the prison and the Court on each day of the hearing.
91 I have already referred to the evidence of Mr Cabal and Mr Pasini as to what has occurred on a number of occasions in the course of transportation which evidence has not been answered. It does not appear that the discriminatory treatment occurs all the time. Mr Galbally informed me during the first day's hearing that the applicants were not making any complaint about the way they were treated on that day. No complaints were made on the second day about the transportation the previous day or on the second day. The discriminatory treatment therefore is not a constant. As the shackling only occurs when transportation to Court is required I do not consider that at the present time the discriminatory way it has occurred and the incidents narrated by Mr Cabal and Mr Pasini can constitute a special circumstance warranting the grant of bail. However, if this treatment were to continue in the manner referred to by Mr Cabal and Mr Pasini I would need to reconsider the matter. At the present time, apart from the day upon which these reasons are published and my decision on the bail applications is handed down, it will not be necessary for the applicants to be transported to Court until the hearing of the challenge to the s 16(1) decision of the Minister before Kenny J which I understand is listed for hearing in February 2000.
92 If the discriminatory manner in which the transportation and shackling of the applicants has occurred continues and there are further incidents of the types referred to in pars 66 and 67, as has occurred hitherto, I would entertain a further application for bail.
Effects of incarceration of applicants
93 Mexico submitted that there is nothing in the material which demonstrated that either the applicants or their families were suffering physically, psychologically or in any other way more than one might reasonably expect persons detained on remand to suffer within a custodial setting. Mexico submitted further that the evidence, far from demonstrating that there had been a breakdown in the family unit in terms of causing dysfunction within the family, appeared to demonstrate that after the initial shock of the deprivation of their father, the head of the family, the children had resumed as best they could a wide range of scholastic, social and personal activities and had performed quite well, albeit with anxiety about their father. Mexico submitted that any person who has a relative detained within a remand setting must suffer anxiety and depression if they had any sort of feelings as a human being.
94 Deterioration of one's physical and mental condition is relative and each case must be considered by reference to its own particular situation and on its own particular merits. In Kainhoffer v Director of Public Prosecutions (1993) 48 FCR 9, Spender J found special circumstances in the totality of the circumstances including the medical evidence before him. That medical evidence involved a diagnosis that the applicant had a psychiatric disorder and her daughter, almost ten years old, had developed a psychotic illness and needed her mother as a medical emergency and necessity. In Timar v Republic of Hungary [1999] FCA 1559, the Full Court found special circumstances in the applicant suffering extremely high blood pressure, which would be compounded by incarceration and which created an increased risk of a seriously debilitating or fatal condition such as a stroke or heart attack.
95 I refer to these authorities not as a bench mark or as criteria by which to judge or determine the present applications but rather as examples of how physical and mental conditions may constitute special circumstances. At the present time, notwithstanding the psychological assessments and opinions referred to in Part I of the confidential appendix to these reasons, I am not satisfied that the physical, psychological, mental or emotional situations of the applicants or various members of their families are such as to constitute special circumstances either singly or cumulatively with the other circumstances relied upon. I do not consider that the psychological state of any of the applicants or the members of their families have reached such a stage that they should be considered as out of the ordinary having regard to the circumstances in which the applicants and their families find themselves as a result of the arrest and incarceration of the applicants. As Mr Galbally rightly pointed out I should not wait until the damage is done before deciding or determining that the psychological condition of any of the applicants or the members of their families constitutes special circumstances. Nevertheless, although each of the applicants is anxious, depressed and emotionally affected detrimentally by the conditions and circumstances in which they find themselves I would expect that a measure of such a condition is ordinarily to be found in persons incarcerated in prison.
96 I have referred in Part I of the confidential appendix to these reasons to the psychological assessments and opinions given in respect of the applicants' wives and Mr Cabal's children. For the reasons to which I have referred I am not satisfied that the psychological or mental conditions of either the applicants' wives or Mr Cabal's children is such as to constitute special circumstances either singly or cumulatively with the other circumstances relied upon. I am not satisfied that there is such a deterioration in the physical, psychological or emotional condition of the applicants or the applicants' wives or Mr Cabal's children as to constitute special circumstances. There is obvious distress felt by the applicants' wives and Mr Cabal's children about the applicants' incarceration, the conditions under which they are held and the manner in which they are transported but that level of distress is not significantly more than the level of distress one would expect family members to have in any situation where a parent or husband was held in prison.
Ability to defend the extradition proceedings
97 Although the applicants submit that the manner in which they are incarcerated inhibits them in their ability to defend the extradition proceedings, the evidence does not disclose any significant impediment other than that which inevitably arises from their lawyers having to communicate with them either over the telephone or at the prison or at the time of Court appearances. Mr Cabal said that:
"Being at home would also make it a lot easier to defend the extradition proceedings against me, and to participate in the conduct of my application for refugee status. Trying to run complicated and numerous legal proceedings from jail is frustrating and stressful. Exchanging documents is time consuming because it means a trip out to the prison. Not having a computer is also a huge disadvantage in terms of communication. Just conferring with lawyers becomes difficult to coordinate, and having limited access to the telephone is also frustrating. Trying to contact my lawyers in Mexico (which is sometimes over 15 hours behind Australian Eastern Standard time) is particularly difficult because of the time differences and my restricted access to the telephone."
These difficulties are, in my opinion, not out of the ordinary for a person incarcerated in prison. Although there is a time problem communicating with lawyers in Mexico, Mr Cabal does not say that he is unable to contact them. Apart from the difficulty which occurred after the Magistrate handed down her decision on 17 December 1999 (which was attributable rather to a transportation situation), there is no evidence that there has been an actual problem which has occurred which has prevented or inhibited the applicants from presenting their cases adequately on any issue before any court. Rather their complaint is that although they can prepare their cases and instruct their lawyers they can only do so with difficulty which they would not encounter if released on bail. Such a matter is not a special circumstance warranting their release on bail either singly or cumulatively with the other circumstances relied upon.
In Mexico Mr Pasini would be free on bail
98 If Mr Pasini were to return to Mexico and comply with the conditions to which I have earlier referred he would be free on bail. In such circumstances he would be under the supervision and control of Mexico, its authorities and institutions. Whilst in Australia, he is not so subject, except to the extent that Mexico can seek to procure his extradition. The fact that Mr Pasini left Mexico and does not wish to return to Mexico is sufficient to render irrelevant the circumstances which might apply to him if he returned to Mexico. What might happen to Mr Pasini in Mexico does not conflict with the policy and principle behind the presumption against bail unless there are special circumstances found in s 21(6)(f)(iv) of the Act. I do not regard what would happen to Mr Pasini if he returned to Mexico as a special circumstance either singly or cumulatively with the other circumstances relied upon warranting his release on bail.
Is there a risk of the applicants absconding?
99 The applicants submitted that there was a low risk of them absconding if bail was granted. It is true that there is no history of the applicants escaping custody but as against that there is evidence that they have lived in, and moved between, a number of countries since leaving Mexico at the end of August 1994. The applicants submitted that this has occurred because they are in fear of their lives and are being pursued for political reasons. I express no view on this issue at the present time. The point is rather that each of them has shown the capacity and ability to move quickly and easily from one country to another country.
100 The applicants also submitted that they have ties to Melbourne not only themselves but through their wives and in Mr Cabal's case his children and that they have an express desire to fight the extradition through the Australian justice system. Each of them says that he made a deliberate decision to stay in Australia after appreciating that apprehension was imminent. However on the material presently available to me I consider that the families' ties to Melbourne are no different than the ties they had to any other country in which they have lived from time to time. Although the Cabal children have attended schools in Melbourne and have built up friendship networks it is apparent that in at least in the case of two of the children there is an expressed desire to live in places other than Australia. Mrs Cabal says she wants to live in Australia but according to one of her children she would prefer to live in Europe. If Mr Cabal were to abscond there would be no inhibition on Mrs Cabal or the children leaving Australia. Mrs Pasini has enrolled as a student and is studying in Melbourne and wishes to stay in Australia but she does not have any strong ties in Australia.
101 Mr Cabal established a business in Australia but it appears to be an offshoot or continuum of other businesses which he had established overseas from time to time. It is also apparent that Mr Cabal has access to substantial sums of money. Although the evidence does not disclose whether the line of credit made available to him in 1994 is still available, the bank statements seized from his house disclose that he has access to substantial overseas funds and this is confirmed by his willingness to bear the costs of the Aussec home security system and surveillance which would cost in excess of $600,000 per annum. Further costs would be incurred in relation to Mr Pasini.
102 Although Mr Pasini did not seek to leave Melbourne quickly on the morning of 11 November 1998 and was prepared voluntarily to disclose his travel documents to the immigration and police officers, I do not consider that this shows that he might not be prepared to abscond in the future, particularly having regard to the Magistrate's decision that he is liable to surrender. Mr Galbally emphasised Ms Leonard's opinion that Mr Pasini could be relied upon to adhere to bail conditions if released on bail because of her experience with rehabilitating drug offenders and treating prisoners who are sex offenders. Mr Galbally submitted that as Ms Leonard's experience included risk assessment I should give weight to her opinion. That opinion must be weighed in the balance with all other circumstances bearing upon whether there is a risk of Mr Pasini absconding.
103 Although, as Mr Galbally said, there is no evidence of any facility here available to the applicants to access passports, they have shown an ability and a propensity in the past to obtain travel and identity documents under an assumed name for the purposes of evasion of capture and detection. I note in particular that the last Dominican Republic passport obtained by Mr Cabal was issued on 18 September 1998. I also note that Mr Pasini told the police who interviewed him in October 1995 that he and Mr Cabal had other assumed names.
104 In support of his submission that there is a low risk of him absconding, Mr Cabal relies upon his ties to Melbourne through his wife and children. However, his wife and children have shown a capacity and propensity to move between countries fairly easily since September 1994 and it must also not be forgotten that Mr Cabal told Mr Cummins he lived apart from his family for a considerable period of almost a year in 1995. He told Mr Cummins that he left Mexico in September 1994, remained in France until around April or May 1995 after which he moved to Spain and that whilst living in France and Spain he was generally not living with his wife and children because he was then concerned he could have been arrested by the Mexican authorities. Mr Cabal told Mr Cummins that in or about November 1995 he moved to Italy and shortly after he was joined by his wife and children. It therefore appears that Mr Cabal lived apart from his wife and children for a substantial period from September 1994 through to November 1995.
105 Mr Pasini also relies on his ties to Melbourne through his wife but that tie is no more than a consequence of being able to live in Melbourne undetected for a period. I do not consider that the ties the applicants have to Melbourne (and I take into account the character evidence given on their behalf) are such as to satisfy me there is only a low risk of them absconding if granted bail.
106 Although both applicants assert that they wish to fight their extradition through the Australian justice system, that decision is a product of necessity; they have no alternative. But even if they were granted bail, I am not satisfied that their desire to work through the Australian justice system is such as to satisfy me that there is only a low risk of them absconding. In that respect it is significant that the Magistrate has found that they are eligible for surrender to Mexico.
107 The movements between various countries of applicants and their families between 1994 and 1997 and the assumed names under which they moved are such as to make me reject the submission that there is a low risk of the applicants absconding if released on bail. The history of the actions of each of the applicants after August 1994 is such as to satisfy me that there is a substantial risk of them absconding if released on bail. I do not accept that the matters upon which each of them relies warrants the conclusion that there is a low risk of each of them absconding. In reaching this conclusion I have also had regard to the nature of the extradition offences and the applicants' concern about their safety in Mexico. These matters are such as to create an added incentive to abscond.
Exercise of discretion
108 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.
109 I am not satisfied that the home security system proposed by Mr Dunne of Aussec is such as to persuade me that I should grant bail on the condition, inter alia, that the home security system proposed by Mr Dunne would be implemented and put in place for each of the applicants. The fact that the proposal is novel is not, of itself, a reason not to accede to it. However, I consider that there is a fundamental matter of principle which militates against the acceptance of the proposal. I was referred to a decision of a single judge of the British Columbia Court of Appeal, Kingdom of Thailand v Saxena (1998) 129 CCC (3d), 518 where bail was granted in an extradition matter on the condition, inter alia, that the fugitive remain at home under house arrest. That house arrest was to be monitored on a 24 hour basis by an independent security firm. I consider that decision to be of little assistance in the present circumstances. First the relevant legislation did not require the fugitive to show special circumstances before bail could be granted. Secondly, the Court asked the question whether the plan proposed adequately addressed the risk of the fugitive failing to appear at the hearing. The Court was satisfied that the judge who granted bail had not erred in the exercise of his discretion. The judge had concluded that the risk of fleeing was minimal.
110 Although bail is sometimes granted on conditions that persons live at particular addresses, or with a particular person, or seek counselling or treatment with particular persons or particular organisations, it is a different situation to have a person's movements monitored by an independent commercial organisation which has no immediate powers of apprehension or arrest if the security area or cordon is breached or broken by the person on bail. The difficulty or lacuna with the system proposed is what is to occur if either applicant seeks to leave his place of residence? True it is that the alarm will be activated but the employees of the private security firm have no powers of arrest or detention. It is submitted that the police can be alerted immediately to the attempted flight but the system itself cannot restrain the flight. If there be a real risk of flight, as in my opinion there is, it can only be effectively restrained by incarceration in an institution under the control or supervision of the State.
111 The order of the Court will therefore be that the application by each of the applicants for bail will be dismissed. I will hear the parties on the question of the costs of the hearing.
112 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.
I certify that the preceding one hundred and twelve (112) numbered paragraphs and the succeeding confidential appendix are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. |
Associate:
Dated: 4 January 2000
Counsel for the Applicants: |
Mr D N Galbally QC and Ms D Mortimer |
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Solicitor for the Applicants: |
Phillips Fox |
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Counsel for the First Respondent: |
Ms L Lieder QC and Mr G Gilbert |
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Solicitor for the First Respondent: |
Commonwealth Director of Public Prosecutions |
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Date of Hearing: |
22 and 23 December 1999 |
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Date of Judgment: |
4 January 2000 |
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