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Federal Court of Australia |
Last Updated: 27 March 2000
Bertran v Vanstone [2000] FCA 359
CRIMINAL LAW - EXTRADITION - extradition to foreign countries - issue of notice by Attorney-General stating that extradition request received - review of decision to issue notice - arrest warrants issued in Mexico - foreign warrants subject to amparo stay - where stay prevents immediate execution of warrant - criminal prosecution not otherwise impeded - purpose of extradition - whether warrants "in force for the arrest" of requested person - whether stays in effect before requested person's return to requesting state - scope of requesting state's obligations under Treaty - whether requesting state under duty of honest and fair disclosure - whether allegation of bad faith against requesting state constitutes valid ground for review of notice - whether bad faith demonstrated - whether valid request
ADMINISTRATIVE LAW - JUDICIAL REVIEW - extradition proceedings - scope of Minister's general discretion to issue notice - whether failure to take into account effect of stays on arrest warrants - whether failure to consider prescription of certain charges - whether knowledge of foreign state constructively available to Minister - no actual or constructive knowledge of stays or prescription - whether decision to issue notice unreasonable
FOREIGN RELATIONS - PUBLIC INTERNATIONAL LAW - standing - whether requested person in extradition proceedings may invoke rights of the requested state arising out of treaty - proper remedy for alleged bad faith of foreign state in making extradition request
WORDS & PHRASES - "warrant in force" "extraditable person"
Judiciary Act 1903 (Cth), s 39B(1) and (1A)
Extradition Act 1988 (Cth) ss 6, 16, 22
Extradition (United Mexican States) Regulations 1991 (Cth)
Director of Public Prosecutions (Cth) v Kainhofer [1995] HCA 35; (1995) 185 CLR 528 cited
Commonwealth of Australia v Tasmania [1983] HCA 21; (1983) 158 CLR 1 cited
Thiel v Commissioner of Taxation [1990] HCA 37; (1990) 171 CLR 338 cited
Freer v Murray [1894] AC 576 distinguished
Tower Justices v Chambers [1904] 2 KB 903 distinguished
In re London & Devon Biscuit Co (1871) LR12Eq 190 distinguished
L Joseph Pty Ltd v Gray (1939) 56 WN (NSW) 190 discussed
Pikor v Smith [1982] Tas R 240 discussed
Gray v Minister for Immigration, Local Government & Ethnic Affairs (1992) 38 FCR 351 discussed
Re Coldham; ex parte Brideson [1989] HCA 2; (1989) 166 CLR 338 cited
Re Operative Plasterers Workers Federation of Australia; ex parte Brown (1992) 67 ALJR 179 cited
R v Connell; ex parte Hetton Bellbird Collieries Ltd [No 2] [1944] HCA 42; (1944) 69 CLR 407 cited
Ex parte Hebburn Ltd; re Kearsley Shire Council (1947) 47 SR (NSW) 416 cited
Re Boyne Smelters Ltd; ex parte Federation of Industrial Manufacturing & Engineering Employees of Australia (1993) 177 CLR 446 cited
Ex parte Walsh & Johnson; in re Yates [1925] HCA 53; (1925) 37 CLR 36 cited
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 applied
Construction, Forestry, Mining & Energy Union v Giudice (1998) 159 ALR 1 cited
Kolotex Hosiery (Aust) Pty Ltd v Commissioner of Taxation (Cth) [1975] HCA 5; (1975) 132 CLR 535 cited
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 distinguished
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 distinguished
Simonsz v Minister for Immigration & Ethnic Affairs (1995) 56 FCR 492 distinguished
Minister for Immigration & Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 distinguished
Videto v Minister for Immigration & Ethnic Affairs (1985) 8 FCR 167 distinguished
Barrett v Minister for Immigration, Local Government & Ethnic Affairs (1989) 18 ALD 129 distinguished
Foster v Vanstone [1999] FCA 1447 distinguished
Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473 distinguished
Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 distinguished
Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 distinguished
Malubel Pty Ltd v Elder (1998) 88 FCR 242 distinguished
Carmody v MacKellar (1997) 76 FCR 115 distinguished
Bou-Simon v Attorney-General [2000] FCA 24 distinguished
Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149 distinguished
R v Horseferry Road Magistrates' Court; ex parte Bennett [1994] 1 AC 42 cited
R v Martin [1997] UKHL 56; [1998] AC 917 cited
R v Staines Magistrates' Court; ex parte Westfallen [1998] 4 All ER 210; [1998] Crim LR 414 cited
Re Schmidt [1995] 1 AC 339 cited
R v Governor of Belmarsh Prison, ex parte Gilligan [1999] 3 WLR 1244 cited
R v Governor of Pentonville Prison, ex parte Sinclair [1991] 2 AC 64 cited
Re Arton (No 1) [1896] 1 QB 108 cited
Atkinson v United States of America Government [1971] AC 197 cited
Zacharia v Republic of Cyprus [1963] AC 634 cited
R v Governor of Pentonville Prison, ex parte Narang [1978] AC 247 cited
R v Bow Street Magistrates Court, ex parte Raccagni (unreported, Queen's Bench Division, 17 December 1998) cited
R v Secretary of State, ex parte Launder [1997] 3 All ER 961 cited
Re Osman [1992] Crim L R 741 cited
Bates v McDonald (1985) 2 NSWLR 89 cited
Bannister v New Zealand [1999] FCR 362 cited
Harris v Attorney-General (Cth) (1994) 52 FCR 386 applied
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 cited
Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217 cited
United States v Turenne (1998) 133 ManR2d 131 (Man Ct QB) referred
Republic of Argentina v Mellino (1987) 40 DLR 4th 74 (Sup Ct Can) referred
Pacificador v Canada (1999) 41 WCB2d 23 (Ont Ct (Gen Div)) referred
Demjanjuk v Petrovsky 10 F3d 338 (6th Cir 1993), cert den 513 US 914 (1994) referred
In re Drayer 190 F3d 410 (6th Cir 1999), cert den 2000 U.S. LEXIS 1347 referred
In re Singh 123 FRD 140 (DNJ 1988) referred
In re Singh 123 FRD 127 (DNJ 1988) referred
Gill v Imundi 747 FSupp 1048 (SDNY 1990) referred
In re Mainero 990 FSupp 1208 (SDCal 1997) referred
Quinn v Robinson 783 F2d 776, 789-90 (9th Cir), cert den 479 US 882 (1986) referred
United States v Thirion 813 F2d 146 (8th Cir 1987) referred
United States v Fowlie 24 F3d 1059 (9th Cir 1994) referred
United States v Puentes 50 F3d 1567 (11th Cir 1995), cert den 516 US 933 (1995) referred
Fiocconi v Attorney General 462 F2d 475 (2nd Cir 1972), cert den 409 US 1059 (1972) referred
Matta-Ballesteros v Henman 896 F2d 255 (7th Cir 1990), cert den 498 US 878 (1990) referred
Gallina v Fraser 177 FSupp 856 (DConn 1959), aff 278 F2d 77 (2nd Cir 1960), cert den 364 US 851 (1960), reh den 364 US 906 (1960) referred
Karst, Latin American Legal Institutions: Problems for Comparative Study (1966)
Brownlie, Principles of Public International Law (5th ed ,1998)
Dugard and Van den Wyngaert, "Note: Reconciling Extradition with Human Rights" (1998) 92 AJIL 187
Rebane, "Note: Extradition and Individual Rights: Need for an International Criminal Court to safeguard individual rights" (1996) 19 Fordham Int'l LJ 1636
Levitt, "Note: International Extradition, the Principle of Specialty, and Effective Treaty Enforcement" (1992) 76 Minn L Rev 1017
International Law Association, Report of the Sixty-Seventh Conference (1996)
International Law Association, Report of the Sixty-Sixth Conference (1994)
Wempen, "Note: United States v Puentes: Re-examining Extradition Law and the Speciality Doctrine" (1995) 1 J Intl Legal Stud 151
Wong, "Note: The Extra in Extradition: The Impact of State v Pang on Extraditee Standing and Implicit Waiver" (1998) 24 J Legis 111
Piragoff and Kran, "The Impact of Human Rights Principles on Extradition from Canada and the United States: The Role of National Courts" (1992) 3 Criminal Law Forum 225
MARCO PASINI BERTRAN v HON. AMANDA VANSTONE & ORS
V 120 of 1999
CARLOS CABAL PENICHE v HON. AMANDA VANSTONE & ORS
V 121 of 1999
CARLOS CABAL PENICHE v HON. AMANDA VANSTONE & ORS
V 222 of 1999
KENNY J
MELBOURNE
27 MARCH 2000
IN THE FEDERAL COURT OF AUSTRALIA |
|
VICTORIA DISTRICT REGISTRY |
BETWEEN: |
MARCO PASINI BERTRAN Applicant |
AND: |
HON. AMANDA VANSTONE First Respondent DAVID McDONNELL Second Respondent BRIAN BARROW M Third Respondent LISA HANNAN M Fourth Respondent |
JUDGE: |
KENNY J |
DATE OF ORDER: |
27 MARCH 2000 |
WHERE MADE: |
MELBOURNE |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the first respondent's costs of and incidental to the proceeding, including reserved costs.
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 |
V 121 OF 1999 |
BETWEEN: |
CARLOS CABAL PENICHE Applicant |
AND: |
HON. AMANDA VANSTONE First Respondent DAVID McDONNELL Second Respondent BARRY BRAUN M Third Respondent LISA HANNAN M Fourth Respondent |
JUDGE: |
KENNY J |
DATE OF ORDER: |
27 MARCH 2000 |
WHERE MADE: |
MELBOURNE |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the first respondent's costs of and incidental to the proceeding, including reserved costs.
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 |
V 222 OF 1999 |
1. The application be dismissed.
2. The applicant pay the first respondent's costs of and incidental to the proceeding, including reserved costs.
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 |
V 121 OF 1999 V 222 OF 1999 |
V 120 of 1999: |
|
BETWEEN: |
MARCO PASINI BERTRAN Applicant |
AND: |
HON. AMANDA VANSTONE First Respondent DAVID McDONNELL Second Respondent BRIAN BARROW M Third Respondent LISA HANNAN M Fourth Respondent |
V 121 of 1999: |
|
BETWEEN: |
CARLOS CABAL PENICHE Applicant |
AND: |
HON. AMANDA VANSTONE First Respondent DAVID McDONNELL Second Respondent BARRY BRAUN M Third Respondent LISA HANNAN M Fourth Respondent |
V 222 of 1999: |
|
BETWEEN: |
CARLOS CABAL PENICHE Applicant |
AND: |
HON. AMANDA VANSTONE First Respondent DAVID McDONNELL Second Respondent BARRY BRAUN M Third Respondent LISA HANNAN M Fourth Respondent |
JUDGE: |
KENNY J |
DATE: |
27 MARCH 2000 |
PLACE: |
MELBOURNE |
1 These are three applications for judicial review under s 39B(1) and (1A) of the Judiciary Act 1903 (Cth). For the most part, the applications raise the same or very similar issues of fact and law.
FACTUAL BACKGROUND
2 The circumstances in which the applications are made are as follows. The applicants in these three proceedings, Carlos Cabal Peniche and Marco Pasini Bertran, are citizens of the United Mexican States ("Mexico"). They left Mexico some years ago and have not returned there since.
Carlos Cabal
3 Between 31 August 1994 and 15 May 1998, a total of thirteen warrants for the arrest of Carlos Cabal were issued in Mexico by Federal District judges in Criminal Matters. The warrants for arrest allege the commission of what might loosely be termed banking offences. Twenty-three of the alleged offences concern the contravention of various provisions of the Mexican Law of Credit Institutions. Three of the alleged offences are for fraud. All the offences allegedly occurred in Mexico City between 1993 and 1994.
4 According to a memorandum provided by the Attorney-General's Department ("the Department") to the Minister on 7 January 1999:
The 23 offences against the Law of Credit Institutions allege that Cabal misused his position as President, major shareholder and member of the High Credit Committee of a bank, the Banco Union, to authorise loans and lines of credit to numerous companies whose solvency and ability to repay the loans was questionable. It is alleged that these companies were, in the main, controlled by Cabal himself and the loans received by these companies ultimately used by Cabal for his personal purposes, and acquiring another bank, the Banca Cremi. In some instances, the loans by Banco Union authorised by Cabal, which ultimately were received by the companies he controlled, were also used to benefit persons associated with him; in other instances money was diverted, with Cabal's knowledge, from the accounts of other companies held at Banco Union to the accounts of the companies controlled by him to be used, ultimately, for his personal purposes. The amounts involved in the criminal conduct which is the subject of the 23 offences against the Law of Credit Institutions range from US$50 to $100 million.The 3 fraud offences alleged against Cabal arise out of fraudulent scheme practised by officers in the Banco Union - with Cabal's knowledge and authorisation - upon unsuspecting companies who approached the bank for loans. Selected companies seeking loans from Banco Union were persuaded by officers in Banco Union to participate in a scheme in which the loans would ostensibly be granted to the companies but would, in fact, be diverted to third party companies called the "terminal accredited persons". The unsuspecting companies were told that the "terminal accredited persons" would pay them high rates of interest. The unsuspecting companies were required to sign blank promissory notes by way of security and hand these to officers in Banco Union. It is alleged that Cabal designed the scheme and authorised his officers in Banco Union to market the scheme to selected unsuspecting corporate customers.
The "terminal accredited persons" in fact, were paper companies or companies mainly controlled by Cabal. It is alleged that neither Cabal nor his officers in Banco Union had any intention to ensure payment of high rates of interest by the "terminal accredited persons" to the unsuspecting victim companies. The money was not repaid to the companies but rather it was used by Cabal for his own purposes. At the end of the day the victim companies owed money to the bank but the "terminal accredited persons" were without any assets. In this scheme, 3 companies are alleged to have been defrauded of approximately US$54 to $57 million in each case.
A total loss of US$242,722,590 was allegedly suffered by Banco Union and the defrauded companies as a result of Cabal's conduct.
Cabal was arrested in Australia pursuant to a provisional arrest warrant on 11 November 1998. The warrant had been issued on 10 November 1998 under s 12 of the Extradition Act 1988 ("the Act") on the application of Mexico. Since 11 November 1998, he has been held in custody at Port Phillip Prison.
5 By Diplomatic Note received by Australia on 6 January 1999, Mexico requested Cabal's extradition, relying on the thirteen arrest warrants that had issued against him in Mexico. On 7 January 1999, the first respondent, the Honourable Amanda Vanstone ("the Minister") acting in the place of the Attorney-General, issued a notice pursuant to s 16(1) of the Act directed to the magistrate before whom Cabal was brought, stating that the request for his extradition had been received from Mexico. The notice also recorded that the Minister was of the opinion that (1) Cabal was an extraditable person for the purposes of the Act in relation to Mexico; and (2) if his conduct had taken place in Australia at the time the extradition request was received, then that conduct would have constituted extradition offences in relation to Australia. The notice further recorded that the Minister was not of the opinion that there was an extradition objection. The s 16 notice given by the Minister on 7 January 1999 is the subject of the application in proceeding V 121 of 1999.
6 On 22 December 1998 and 7 January 1999, three additional warrants of arrest were issued in Mexico for Cabal's arrest. On 19 February 1999, a second provisional warrant, issued under s 12 of the Act on 16 February 1999, was executed against him. By Diplomatic Note received by Australia on 11 February 1999, Mexico again requested Cabal's extradition, relying on the three additional warrants as well as on one of the warrants relied on in the first request of 6 January 1999.
7 A memorandum provided by the Department to the Minister on 23 March 1999 stated:
The second request seeks Cabal's extradition in relation to 4 warrants ordering his arrest for the following 5 offences in Mexico:a) Tax Fraud Comparable contrary to Article 109 section I of the Federal Tax Code of Mexico (2 Counts);
b) Falsely Declaring Losses contrary to Article III, section IV of the Federal Tax Code of Mexico (1 Count);
c) An offence contrary to Article 112, section V, paragraph (c) of Mexico's Law of Credit Institutions (1 Count); and
d) Money Laundering contrary to Article 115 Bis, section I, paragraph (b) of the Federal Tax Code of Mexico (1 Count).
The offence against Article 112, section V, paragraph (c) of Mexico's Law of Credit Institutions was included in the first extradition request. However, due to technical difficulties with the supporting documents presented in the first request, and following consultations between the Mexican authorities and Departmental officers, the Mexican authorities decided to remove this offence from the first request and present it in the second request. The remaining four offences are additional to those included in the first request.
The offence of Falsely Declaring Losses and one of the counts for the offence of Tax Fraud Comparable were allegedly committed by Cabal in the State of Tabasco, Mexico, while he was President and administrator of a banana production and marketing company ... . Briefly, it is alleged that Cabal was responsible for [the company] filing a false taxation return for the 1993 fiscal year. The company is alleged to have falsely claimed 13,016,976.00 Mexican Pesos worth of expenses and deductions to avoid the payment of Mexican Federal taxes.
The offence against the Law of Credit Institutions and the Money Laundering offence arise out of Cabal's alleged misuse of his position as President, major shareholder and member of the High Credit Committee of a bank in Mexico called the Banco Union. It is alleged that in May 1994, at Mexico City, Cabal authorised a line of credit of US$50 million to a company ... whose solvency and ability to repay the loans was questionable. It is alleged that the funds from the line of credit ultimately benefited Cabal, directly and indirectly, as well as persons associated with him. It is alleged that the funds from the line of credit were also used by Cabal for his personal purposes, including acquiring another bank, the Banca Cremi. The funds allegedly passed through a number of entities controlled by or related to Cabal to conceal the fact that the funds advanced to [the company] by Banco Union were being diverted to Cabal's own use.
The second count for the offence of Tax Fraud Comparable alleges that Cabal falsely declared his income in his personal tax return for the 1993 fiscal year. Cabal is alleged to have understated his income by 488,518,032.99 Mexican Pesos.
On 30 March 1999, the Minister gave a notice in respect of Cabal under s 16(1) of the Act, recording her opinion (in the same terms as the notice of 7 January 1999) and stating that a second extradition request had been received from Mexico. The notice given on 30 March 1999 is the subject of the application in V 222 of 1999.
Marco Pasini
8 On 18 January 1996, a warrant for the arrest of Marco Pasini was issued in Mexico by the Third Unitary Court of the First Circuit. That court issued a second warrant for his arrest on 29 August 1996. The offences alleged in both warrants arise out of Pasini's involvement in the activities giving rise to the allegations against Cabal. According to a memorandum provided by the Department to the Minister on 21 January 1999:
The Mexican authorities allege that Pasini assisted his brother-in-law Carlos Cabal Peniche ("Cabal"), whose extradition is also being sought by Mexico, to defraud Banco Union. ...The first two counts allege Pasini assisted Cabal in relation to the making of a fraudulent loan to a company ... . On 26 January 1994 the High Credit Committee of Banco Union, with Cabal's approval, authorised a line of credit of US$80 million to [the company]. [The company] was controlled by Cabal. It is alleged that [the company] did not have the capacity to repay these advances and that the funds were passed through a number of transactions before being diverted to Cabal's own use. Pasini is alleged to have assisted Cabal in relation to the offences arising from this loan because he allowed part of the funds obtained by [the company] pursuant to the line of credit to be passed through his cheque account.
It is alleged that 30,121,878.65 Mexican Pesos advanced to [the company] under the line of credit were paid into Pasini's cheque account on 31 August 1994. On the same day these funds were then combined with other funds in Pasini's account to allow Pasini to write a cheque for 89,780,681.55 Pesos to Banco Union to purchase US$26,409,966.63 which were then paid into an account held by [the company].
The third offence alleges that in 1995, Cabal, while living in Spain, had a company called Xurtu S. L. incorporated. Pasini, who by this time was also living in Spain, was appointed president of Xurtu. It is alleged that part of the funds defrauded by Cabal from Banco Union were transferred from an account operated by Cabal's lawyer in the US to Xurtu and then used by Pasini to pay Cabal's living expenses to prevent Cabal being located in Spain. Pasini was signatory to the Xurtu bank accounts in Spain.
Pasini was arrested in Australia pursuant to a provisional arrest warrant, issued under s 12 of the Act, on 27 November 1998. Since 27 November 1998, he has been held in custody at Port Phillip Prison.
9 By Diplomatic Note received by Australia on 20 January 1999, Mexico requested Pasini's extradition, relying on the arrest warrants that had been issued against him in Mexico. On 21 January 1999, the Minister issued a notice pursuant to s 16(1) of the Act directed to the magistrate before whom Pasini was brought. The notice recorded her opinion (in the same terms as the notices of 7 January and 30 March 1999) and stated that the extradition request had been received from Mexico. The s 16 notice given by the Minister on 21 January 1999 is the subject of the application in V 120 of 1999.
STATUTORY CONTEXT
10 The principal objects of the Act, as stated in s 3, are (i) to codify the law relating to the extradition of persons from Australia to "extradition countries" (as defined in s 5) and to New Zealand; (ii) to facilitate the making of requests for extradition by Australia to other countries; and (iii) to enable Australia to carry out its obligations under extradition treaties.
11 Broadly speaking, under the Act, there are four stages in the process that may lead to the extradition of persons from Australia. First, an extradition country seeking the extradition of a person from Australia can apply to a magistrate under s 12 of the Act "for the issue of a warrant for the arrest" of that person. If the magistrate is satisfied by information on affidavit that "the person is an extraditable person in relation to the extradition country", then the magistrate is obliged to issue a warrant for the arrest of the person: s 12(1). The magistrate is also obliged to provide the Attorney-General with both a report that the warrant has issued and a copy of the affidavit. Upon arrest under a s 12 provisional arrest warrant, the person is remanded by a magistrate in custody or on bail pursuant to s 15 of the Act.
12 An "extraditable person" is defined in s 6 of the Act as follows:
Where:(a) either:
(i) a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act; or
(ii) a person has been convicted of an offence or offences against the law of a country either before or after the commencement of this Act and:
(A) there is an intention to impose a sentence on the person as a consequence of the conviction; or
(B) the whole or a part of a sentence imposed on the person as a consequence of the conviction remains to be served;
(b) the offence or any of the offences is an extradition offence in relation to the country; and
(c) the person is believed to be outside the country;
the person is, for the purposes of this Act, an extraditable person in relation to the country.
An "extradition offence" is relevantly defined in s 5 of the Act as follows:
(a) in relation to a country other than Australia - an offence against a law of the country:(i) for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months; or
(ii) if the offence does not carry a penalty under the law of the country - conduct constituting which is, under an extradition treaty in relation to the country, required to be treated as an offence for which the surrender of persons is permitted by the country and Australia ... .
It is unnecessary for present purposes to set out the definition in the Act of "extradition objection": see s 7.
13 What, for present purposes, I shall call the second stage of the process begins when the Attorney-General receives an extradition request from an extradition country. (I note, however, that the Attorney-General may receive an extradition request either before or after the person whose extradition is sought is arrested pursuant to the magistrate's warrant.) Section 16 of the Act provides:
(1) Where the Attorney-General receives an extradition request from an extradition country in relation to a person, the Attorney-General may, in his or her discretion, by notice in writing in the statutory form expressed to be directed to any magistrate, state that the request has been received.(2) The Attorney-General shall not give the notice:
(a) unless the Attorney-General is of the opinion:
(i) that the person is an extraditable person in relation to the extradition country ; and
(ii) that, if the conduct of the person constituting the extradition offence, or any of the extradition offences, for which surrender of the person is sought, or equivalent conduct, had taken place in Australia at the time at which the extradition request was received, the conduct or the equivalent conduct would have constituted an extradition offence in relation to Australia; or
(b) if the Attorney-General is of the opinion that there is an extradition objection in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought.
(3) As soon as practicable after the person is remanded under section 15 or the notice is issued, whichever is the later:
(a) a copy of the notice; and
(b) copies of the documents referred to in paragraph 19(2)(a) and, if applicable, paragraph 19(2)(b);
shall be given to the person.
Section 17 provides for release from remand in the event that the Attorney-General decides not to issue a s 16 notice or for any other reason considers that the remand should cease: s 17(2).
14 Leaving aside the situation where a person consents to being surrendered under s 18, the third stage is reached when, following the giving of a s 16 notice, proceedings are taken before a magistrate under s 19 to determine whether the person whose extradition is sought is eligible for surrender in relation to the extradition offence or offences relied on by the extradition country. A series of conditions or criteria are specified in s 19(2) by reference to which the magistrate must determine whether the person is eligible for surrender. Those conditions or criteria do not include whether the person is an extraditable person, as defined in s 6. Section 21 of the Act provides for review by this Court of the magistrate's order under s 19(9) or (10) of the Act.
15 Finally, once a person has been determined to be eligible for surrender and has become an "eligible person" (as defined in s 22(1)), the Attorney-General is then obliged to determine under s 22 whether the person is to be surrendered to the extradition country. Section 22(3) sets out a series of conditions or criteria which must be satisfied before the eligible person can be surrendered. In Director of Public Prosecutions (Cth) v Kainhofer [1995] HCA 35; (1995) 185 CLR 528 ("Kainhofer") at 538, Brennan CJ, Dawson and McHugh JJ observed:
The powers conferred by the Act, other than those conferred on a court by s 21, are administrative in nature. They are exercisable by different repositories in sequence, but none of them authorises the repository of a power to review the exercise of a power by another repository earlier in the sequence.
16 A critical part of the statutory context in the present case is the Treaty on Extradition between Australia and Mexico ("the Treaty"). Pursuant to s 11(1)(a) and (1C) of the Act, reg 5 of the Extradition (United Mexican States) Regulations 1991 ("the Regulations") provides that the Act applies in relation to Mexico subject to the Treaty (which is set out in the Schedule to the Regulations). Article 1 of the Treaty records that:
The Parties agree to extradite to each other, in accordance with the provisions of this Treaty, persons against whom criminal proceedings have been initiated or who are wanted for the imposition or enforcement of a judicial sentence involving deprivation of liberty for an extraditable offence.
Article 2 identifies what are, for the purposes of the Treaty, "extraditable offences". It states in par 1:
For the purposes of this Treaty, extraditable offences are those offences, however named, which are punishable under the laws of both Parties by a penalty no less severe than deprivation of liberty for a maximum period of at least one year.
Article 8, under the heading "Exceptions to Extradition", states:
Extradition shall not be granted when criminal proceedings can no longer be instituted by reason of lapse of time or any other cause in accordance with the law of either Party.
17 The Treaty provides, in art 15, for requests for extradition to be made in "writing through the diplomatic channel". Under the heading "Documentary Requirements", art 16 provides:
1. The following documents, accompanied by a translation into the language of the Requested State, shall be sent with the extradition request:(a) a statement of the acts or omissions for which the extradition is requested, indicating as precisely as possible the time and place of their commission and their legal description;
(b) the original or authenticated copy of the warrant of arrest, warrant of commitment, conviction or sentence, if imposed, or any other judicial order made under the laws of the Requesting Party which authorizes the arrest of the person and from which the existence of the offence and its commission by the person sought may be reasonably inferred;
...
2. To the extent permitted by the law of the Requested Party, extradition of a person may be granted pursuant to the provisions of this Treaty, notwithstanding that the requirements of this Article have not been complied with, provided that the person sought consents to an order for his extradition being made.
Article 17 provides:
If the details or documents sent with the request for extradition are insufficient or defective, the Requested Party shall inform the Requesting Party of the omission or defects which may be corrected, before the request will be submitted to the judicial authority.
The decision on the request for extradition is also to be communicated to the requesting party through the diplomatic channel: see art 21.1.
THE REVIEW APPLICATIONS
18 The applications before this Court challenge the Minister's decisions to give notices under s 16(1) of the Act. The applicants claim that in each instance: (1) the Minister erred in law in forming the opinion that the applicant was, at the relevant time, an extraditable person in relation to Mexico: see s 16(2)(a)(i); (2) the Minister erred in exercising the discretion conferred by s 16(1) to issue a notice; and (3) the extradition request made by Mexico to Australia was invalid.
19 The grounds relied on to make out (1) above are the following.
(a) The Minister acted on an erroneous construction of the expression "warrant ... in force for the arrest of a person" in s 6(a)(i) of the Act.
(b) The Minister failed to take into account matters that she was bound to take into account in forming her opinion, namely, (i) in relation to the notices against Cabal, the existence of amparo stays; (ii) in relation to the notice against Pasini, the existence of an amparo stay, the terms of which were capable of being amended to correct any error; and (iii) in relation to the second notice against Cabal, that the money-laundering offence was prescribed by Mexican law, or that there was a substantial body of legal opinion to the effect that it was so prescribed.
(c) Each of the Minister's decisions to issue a notice was so unreasonable in the circumstances that no Minister, properly advised of the relevant facts and properly instructed as to the law, could have formed the opinion that the applicants were extraditable persons.
(d) Mexico was in breach of its duty to make honest and fair disclosure of the relevant facts in its possession.
(Broadly speaking, much the same grounds are relied on to support (2) above.)
20 In order to establish (3) above, the applicants allege that none of the requests complied with the Act or the Treaty, because none informed Australia about the amparo stays or the relevant prescription period on the money-laundering offence (alternatively, about a body of legal opinion that the offence was prescribed).
21 The relief sought by the applicants includes:
(1) orders in the nature of mandamus against the Minister directing her to exercise properly the power conferred by s 16(1) of the Act;
(2) orders in the nature of certiorari against the Minister setting aside her decisions to give the s 16 notices;
(3) injunctions restraining the Minister and relevant respondent magistrates from taking any steps in reliance upon the s 16 notices;
(4) declarations that the Minister's decisions to issue the s 16 notices were invalid;
(5) declarations that:
(a) the applicants are not "extraditable persons" for the purposes of ss 6 and 16 of the Act;
(b) there is no authority under the Act for the applicants' detention; and
(c) the money-laundering offence is not an extradition offence within the meaning of the Act, as modified by art 8 of the Treaty; and
(6) orders in the nature of habeas corpus directing the release of the applicants from custody.
I deal with each of the grounds raised by the applicants in the order referred to above.
DID THE MINISTER ACT ON AN ERRONEOUS CONSTRUCTION OF THE EXPRESSION "WARRANT ... IN FORCE FOR THE ARREST OF A PERSON"?
How the question arises
22 The applicants submit that a warrant, though valid, is not "in force" within the meaning of s 6(a)(i) if it is subject to a stay that prevents its immediate execution. They contend that a warrant cannot be "in force" within the meaning of s 6(a)(i) of the Act unless it
possesses the power to effect immediately the goal for which it was issued, namely effecting or achieving the arrest of a person. It must be capable of execution.
The Minister replies that the words "in force" simply mean valid or operational. The fact that the execution of a warrant is stayed does not affect its validity and, in consequence, a stayed warrant remains in force.
23 The question arises out of certain legal events in Mexico, principally the grant of "amparo" stays. ("Amparo" means, literally, "shelter" or "protection".) It is common ground that, aside from a warrant for a serious offence (as defined in Mexican law), an amparo stay on an arrest warrant prevents the responsible authorities named in the stay from executing the warrant. It is also common ground that, providing an amparo stay against the relevant authorities exists, the applicants could not be immediately arrested on their return to Mexico. (There was a debate as to whether the stays came into effect before the applicants returned to Mexico. I return to that debate below.) The applicants' case is that, following the grant in Mexico of amparo stays, aside from the warrant for money-laundering (which is characterised by Mexican law as a serious offence), there were no warrants in force for the purpose of s 6(a)(i) of the Act. In forming her opinion under s 16(2)(a), the Minister acted, so the applicants say, on an erroneous construction of s 6(a)(i).
24 Before addressing these arguments, I describe below certain aspects of Mexican criminal procedure and amparo law. The account is drawn from the evidence that was adduced at trial. Save where the contrary is stated, what follows was not contentious.
The Mexican legal system
25 Mexico is a federation of states. The fundamental source of Mexican law is the Political Constitution of the United States of Mexico ("the Constitution") which provides for a federal government of enumerated powers, divided into executive, legislative and judicial branches. In addition, there are thirty-one states and a federal district (Mexico City). Article 133 of the Mexican Constitution provides for a hierarchy of laws. The Constitution is supreme, followed by treaties, federal laws, and federal regulations. State constitutions and laws are subordinate to all federal legislation. Finally, there are decrees. The legal system is derived predominantly from European civil law traditions.
26 Mexico has both state and federal courts. The federal judiciary is comprised of four tiers: the Supreme Court, Collegiate Tribunals, Unitary Tribunals, and District Courts. Cases at the Supreme Court level are typically heard by one of four chambers according to subject matter (criminal, civil, administrative, and labour). The Supreme Court may hear especially important matters or constitutional questions in plenary session. Aside from the Supreme Court, the federal courts are divided into twenty-three geographically-organised circuits. Mexico City constitutes the First Circuit, or simply the Federal District. Within each circuit there are a number of judges at the Collegiate, Unitary and District levels. The Collegiate Tribunals are made up of Magistrates who exercise the federal judicial review system called amparo. Essentially, this is a system of judicial review that allows review of acts or decisions of the legislature, executive or judiciary on the grounds of infringing rights guaranteed by the Mexican Constitution. The Unitary Tribunals comprise Magistrates who exercise criminal appeal jurisdiction as well as an amparo jurisdiction in relation to the judicial decisions of other members of the Unitary Tribunal and of the District Judges. The District Judges exercise jurisdiction as trial judges in federal matters, including criminal trials. They also have first instance amparo jurisdiction.
Mexican criminal procedure
27 The Mexican Constitution separates the executive role of investigating crime from the judicial role of determining guilt and imposing punishment. Responsibility for the investigation and prosecution of crimes rests with the Public Prosecutor, which is part of the Ministerio Publico. The Public Prosecutor is required to investigate offences that come to the Prosecutor's attention. This may happen in two ways: by denuncia or by querella. For most offences, it does not matter how the Prosecutor is made aware of the alleged offence. The submission of a denuncia, or report of a criminal act, by a police officer or private individual obliges the Public Prosecutor to begin an investigation de officio, or by the Prosecutor's authority. There is also a class of offences that can only be investigated after receipt of a querella, or formal complaint, from the appropriate person or authority specified by the relevant law. For example, the prosecutorial investigation of some financial offences may not commence without a querella from the Ministry of Finance (Secretaria de Hacienda Credito Publico). The offences of which Cabal and Pasini are accused are of this description.
28 If the Public Prosecutor, after investigation, considers that there is sufficient evidence to prove the commission of an offence and to establish the probable criminal responsibility of the person under investigation, the Prosecutor will prepare a document, known as a consignacion, setting forth the acts said to constitute the offence and referring to the evidence establishing the suspect's probable responsibility. This document is then presented to the appropriate judicial authority, who decides, on the papers submitted and without a hearing, whether it justifies the issue of a warrant for the arrest of the suspect. For federal offences, the application for a warrant is presented to a District Judge. If (as happened in Pasini's case) the District Judge refuses to issue a warrant, the Public Prosecutor can appeal to a Unitary Tribunal. If the judge decides to issue a warrant, the decision, with reasons, must be made in writing.
29 Upon the issue of a warrant, the investigative process comes to an end and judicial proceedings commence. At this point, the Prosecutor becomes a party to a penal action. The judge who issues the warrant remains in control of all subsequent proceedings, with the exception of amparo proceedings. Save, perhaps, for immaterial exceptions, a warrant cannot be executed outside the jurisdiction of Mexico.
30 Once the arrest warrant issues, the judge serves notice to the Prosecutor who, in turn, commands the judicial police (police attached to the Prosecutor's office) to search for and arrest the person named in the warrant. Upon arrest, the police are required to take the detainee, without delay, before the judge who issued the warrant. This must be done as soon as possible (and, in any event, within 24 hours). Once notice of arrest is given, the detainee must appear before the court within 48 hours to render a declaracion preparatoria, or a preparatory statement. This offers the detainee an opportunity to answer charges, although he may remain silent if he so wishes. From the moment the notice of arrest is given, a Mexican judge has 72 hours to decide whether the person goes to trial or the charges should be dismissed. This period may be extended to 144 hours at the request of the accused to provide the accused with an opportunity to submit evidence to refute the Prosecutor's allegations.
31 Upon rendering a preparatory statement, the person will be released on bail or remanded in custody in accordance with the law of bail contained in the Federal Code of Criminal Procedure. Bail is not available for serious offences, which are those offences set out in art 194 of the Code. Money-laundering (the subject of a warrant included in the second extradition request for Cabal) is one such offence. For non-serious offences (which include the offences in the balance of the warrants mentioned in the extradition requests for Cabal and the offences in the warrants mentioned in the extradition request for Pasini) bail is available, although the Public Prosecutor may petition the judge to refuse bail. Judges may attach a variety of conditions to the grant of bail (e.g., the provision of a bond and reporting requirements).
Amparo proceedings
32 An amparo proceeding is a form of judicial review that does not correspond precisely to any single common law concept. In essence, an amparo suit is a collateral action by which private persons may seek redress for violations of their civil rights arising out of unconstitutional laws or acts of a public nature by a public authority. The constitutional foundation of amparo is arts 103 and 107 of the Mexican Constitution. They relevantly read (as in the first affidavit of Marco del Toro):
Article 103. The Federal Courts shall decide all controversies that arise:I. From laws or acts of the authority that violate individual guarantees;
II. From laws or acts of the federal authority restricting or encroaching on the sovereignty of the States; and
III. From laws or acts of State authorities that invade the sphere of federal authority.
Article 107. All controversies mentioned in Article 103 shall be subject to the legal forms and procedures prescribed by law in accordance with the following rules:
I. The amparo suit shall always be prosecuted at the instance of the injured party;
II. The judgment shall always be such that it affects only private individuals, being limited to affording them shelter and protection in the special case to which the complaint refers, without making any general declaration about the law or act on which the complaint is based.
...
XII. Violation of the guarantees set forth in article 16 in criminal matters and in articles 19 and 20, may be protested before the superior of the court committing the violation, or before the appropriate district judge, and in either case the decision can be appealed in accordance with the terms in section VIII [providing for review by the Supreme Court or Collegiate Tribunals].
An amparo petition challenging an arrest warrant would fall within s 1 of Article 103.
33 The Amparo Law is a procedural code designed to give effect to these constitutional provisions. Any gaps in the Amparo Law can be supplemented by the Federal Code of Civil Procedure: Amparo Law, art 2, par 2.
34 A common lawyer may recognise similarities between amparo and judicial review, including the requirement of state action and limitations relating to standing and justiciability. There is a salient difference, however, between the two: that is the qualification expressed in art 107(II). A successful amparo suit does not have the effect of invalidating an unconstitutional law, but merely suspends its operation with respect to the complainant. That is, the amparo judgment only protects the petitioner from the application of the law or administrative or judicial act being challenged. This is sometimes called the Otero Formula. The outcome of a successful amparo petition is full restitution of the right violated by the authority: Amparo Law, art 80. The relief is limited to the complainant. Authorities who are not specifically named as respondents in the proceeding are not bound by the judgment. Further, as a general rule, an amparo suit or petition brought under s 1 of art 103 of the Constitution must specify the constitutional guarantees that are said to have been violated and the law or act of authority said to constitute the violation. The relevant guarantees are those found in the first twenty-nine articles of the Mexican Constitution.
35 A procedural distinction exists between what is known as "direct amparo", which encompasses challenges to final judicial decisions and procedural errors that occur in the making of such decisions, and "indirect amparo", which comprehends challenges to non-judicial official acts. The Collegiate Tribunals generally have jurisdiction over direct amparo suits. Rarely, the Supreme Court exercises jurisdiction in such matters. The District Courts have original jurisdiction over "indirect amparo" cases.
36 The deprivation of liberty resulting from the execution of an arrest warrant is regarded as a sufficient injury (within art 16 of the Constitution) upon which to file an amparo petition. An amparo petition is the most accessible legal recourse open under Mexican law against a warrant to arrest. A petition may assert invalidity upon various bases, including prescription and lack of probable cause. An amparo challenge to the constitutionality of an arrest warrant must be initiated after the warrant has been issued but before its execution. Pursuant to art 144 of the Amparo Law, a challenge to an arrest warrant is an indirect amparo action, and would normally be filed in the District Court. The decision of the District Judge may be reviewed by a Unitary Tribunal.
37 The parties to an amparo proceeding challenging the constitutionality of an arrest warrant are the injured party (the quejosa), the authorities responsible for the challenged conduct, any affected third parties, and the Federal Public Prosecutor. Since, in arrest warrant cases, the accused will not know which specific authority has issued the warrant, it is common to list as respondents all judicial authorities who could have issued it, as well as any authorities who might be involved in its execution.
38 The substantial question in an amparo proceeding is whether the impugned conduct violates the constitutional guarantees. The proceeding is designed to bring about a determination of that matter while maintaining the status quo in the interim. As an incidental part of the amparo proceeding, an application may be made for the suspension or stay of the impugned act. When application for a stay is made, an amparo judge must first determine whether a provisional stay should be granted. Article 124 of the Amparo Law provides for the circumstances in which a stay will be granted. It will not be granted if it would adversely affect social interests or public order. A provisional stay is ordinarily granted where a challenged act would otherwise be completed before the amparo court has ruled on its constitutionality. In arrest warrant cases, a provisional stay is normally granted, barring any defects in the application that would render it inadmissible. A provisional stay provides for the quejoso's protection until the definitive stay decision is made. Where a stay is granted in accordance with art 124 of the Amparo Law, the amparo court must serve notice of it, ex officio, on the respondent authorities. The authorities may then submit a preliminary report, stating whether or not they did the challenged act. Once the responsible authorities have been identified, a definitive stay will be granted against them, maintaining the status quo until the completion of the amparo proceeding.
39 Article 136 of the Amparo Law states an amparo stay's effect with regard to a criminal proceeding. It provides (as in Karst, Latin American Legal Institutions: Problems for Comparative Study (1966) at 626, in accord with oral translations provided by Mr del Toro at ts 154 and by Mr Acosta at ts 356 and 361):
If the challenged act affects personal liberty, the effect of the suspension shall be only that the complainant remains at the disposition of the District Judge, only with respect to his personal liberty, remaining at the disposition of the authority which should judge him when the order emanates from criminal proceedings with respect to a stay [continuance] of the same....
If the suspension be granted in cases of orders for arrest, the District Judge shall order such means as he deems necessary to secure the presence of the complainant, so that he may be returned to the responsible authority if the amparo is not granted.
...
Bail can be revoked when there are sufficient grounds to presume that the complainant is attempting to evade justice.
By virtue of art 136, an amparo stay does not impede the progress of a criminal proceeding, at least up until sentence.
40 In accordance with art 136, where an arrest warrant is stayed, the District Judge may order such measures as he thinks necessary to ensure the quejoso's submission to the responsible authority if amparo is ultimately denied. Where the arrest warrant refers to non-serious offences, the amparo judge typically imposes conditions, such as the payment of a bond and reporting requirements, to ensure the quejoso's submission to the authority of the criminal court. One condition usually attaching to a stay is an order that the quejoso appear before the criminal judge to provide his preliminary statement. In this way, the stay, provisional or definitive, does not interfere with the conduct of the criminal proceeding. In the case of serious offences, where bail is not available, an amparo stay does not operate to prevent the quejoso's arrest. The arrest warrant remains capable of execution for the purpose of bringing the quejoso before the amparo judge instead of the warrant judge. Article 136, par 5 establishes that, in such a case, the effect of the stay is to place the quejoso before the amparo judge for matters relating to his personal liberty and to bring him before the warrant judge for the purpose of continuing the criminal proceeding. A decision to grant or refuse a suspension, at both the provisional and definitive stages, may be appealed to a Collegiate Tribunal.
41 The final stage in an amparo proceeding is a hearing on the merits, after which the judge grants or denies amparo. In arrest warrant cases, if amparo is granted (and upheld on appeal, if any) the effect will be to direct the judge who issued the warrant to cancel the warrant or to correct its deficiencies. The judge who issued the warrant is obliged to abide by the decision of the amparo judge.
The applicants' amparo proceedings
42 Messrs Cabal and Pasini have both initiated amparo proceedings challenging the issue of the arrest warrants relied on by Mexico in making its extradition requests.
Carlos Cabal
43 On 18 December 1998, the Fifth District Judge in Criminal Matters of the Federal District granted a provisional stay against the execution of the thirteen warrants of arrest that were relied on in Mexico's first extradition request. The provisional stay granted was -
to the only effect that things may remain in the state in which they presently are and if the warrant of arrest has not yet been executed, then that the complainant not be deprived of his liberty as a consequence of those warrants of arrest, [up] until the responsible authorities have been notified of the resolution taken on the final stay, provided that the offence for which [the] said warrant of arrest was issued is not one such that, the law expressly prohibits to release the accused under bail. This preventative measure shall only be effective if the complainant, when returning to the national territory, should comply with the [stipulated] requirements.
Those requirements were the provision of a bond certificate, and that Cabal appear before the responsible authority -
within a term of three days, to be counted as from the time when the stay that is hereby being granted becomes effective, in order to make his preparatory statement, and as many times as he may be summoned in the criminal procedure in which he is accused, not to leave the district where the procedure is carried out or his place of residence, observing the instructions given by the police for his custody, all this in the understanding that, should he not comply with any of the security measures which have been mentioned above, this stay shall be rendered invalid.
An application for a provisional stay of extradition was refused on the grounds that there was a public interest in securing performance of the Treaty and that the Amparo Law "cannot have any effect beyond [Mexican] frontiers".
44 On 1 February 1999, the same judge granted a definitive stay of execution of the thirteen warrants in substantially the same terms as the provisional stay. Again, a stay of extradition was denied.
45 On 22 February 1999, the Third District Judge in Criminal Matters in the Federal District granted a provisional stay on the execution of an arrest warrant, issued in Mexico on 7 January 1999, that formed part of Mexico's second extradition request for Cabal. The stay was granted:
for the claimed acts, so that things may remain in the state in which they presently are and he not be deprived of his personal liberty as a consequence of an impugned warrant of arrest, provided that the offence for which the said warrant of arrest was issued is not one such that, because of its graveness, the law expressly prohibits to release the accused, or if said accused had been caught in flagrante delicto.
There were further terms of the stay that:
This preventative measure shall only be effective if the above mentioned complainant should comply with the following security measures: to show before this court a bond certificate in the amount of ONE HUNDRED THOUSAND PESOS, once he has entered the national territory, by virtue of the fact that in his complaint for guaranties the complainant has informed this court that he has been detained in the city of Melbourne, Australia; to appear to sign the `control of stays' book of this court on every Monday or the following working day should the Monday not be a working day, as well as to appear before the authority that has issued the warrant of arrest being claimed, within a term of three days, to be counted as from the time when the stay that is hereby being granted becomes effective, in order to make his preparatory statement, all this in the understanding that, should he not comply with any of the security measures which have been mentioned above, this stay shall be rendered invalid and the bond certificate that has been submitted shall be forfeited.On the other hand, if the impugned warrant of arrest is regarding a crime that, in accordance with the law, it is not permitted to grant temporary release on bail, this provisional stay is granted to the sole effect that once the contested warrant of arrest has been executed, the complainant, wherever he is detained, be at the disposal of this court as regards his personal liberty and at the disposal of the authority in charge of the criminal procedure for the continuation of the said procedure.
(I have substituted the word "impugned" for the word "invalidated" in the translation. Comparison with other translations of the same text before the Court indicated that that was what was intended. In any event, no-one suggested that the relevant warrants have yet been declared invalid.) An application for provisional stay of extradition was denied.
46 On 29 March 1999, the same judge granted a definitive stay of execution of the relevant warrant in substantially the same terms as the provisional stay granted on 22 February 1999. Once again, an application for a stay of extradition was denied.
47 On 16 June 1999, the Third District Judge also granted a provisional stay over another warrant that formed part of Mexico's second extradition request. She granted a definitive stay on 30 June 1999. These stays were in substantially the same terms as the provisional stay granted on 22 February and 29 March 1999, to which I have already referred.
48 On 22 February 1999 the First District Judge in Criminal Matters of the Federal District granted a provisional stay of an arrest warrant for Cabal, issued in Mexico on 22 December 1998, that also formed part of Mexico's second extradition request for Cabal. The terms of the provisional stay differed from the other stays mentioned thus far. This stay relevantly read:
On the grounds of sections 124, 124 bis and 138 of the law on the subject, the provisional suspension of the arrest order ... is granted as requested, provided such order does not refer to crimes considered to be serious under the law, for the purpose of maintaining things in their status quo and that the complainant is not deprived of his freedom because of the arrest order until the liable authorities are notified of the resolution regarding the definitive suspension on the grounds of section 139 of the mentioned legal rule. This precautionary measure will be effective as of now but will cease to have effect if the complainant fails to comply with the following requirements: to grant before this District Court a deposit bill for the amount of ONE HUNDRED AND FIFTY THOUSAND PESOS within five days of notice of this decision having been served. ... [I]n case he is extradited to this country, he must appear before the judge hearing his case, within three days of his return to this country, in order to make his preparatory statement.
There were further conditions to be met upon Cabal's return, but it is unnecessary to set them out here. (Again, I note that evidence was given that, in this context, the correct translation of the Spanish word "luego" is "as of now", not "naturally" as one of the translations before the Court indicated.) On 22 March 1999, a definitive stay was granted in essentially the same terms as the provisional stay. (On 18 December 1998, there was a provisional stay and, on 1 February 1999, a definitive stay on the warrant relied on in both Mexico's requests for Cabal's extradition. I dealt with it above.)
Marco Pasini
49 On 20 January 1999, the Third District Judge in Criminal Matters in the State of Mexico granted a provisional stay on warrants of arrest "issued by the judicial authorities indicated as responsible and identified at 3.1 and 3.2 in the claim", directed to the authorities responsible for their execution. The stay granted on 20 January 1999 did not list the Magistrate of the Third Unitary Court of the First Circuit, who had in fact issued the warrants, as a responsible authority. On 23 February 1999, the same judge granted a second provisional stay. That stay recited that, "besides the authorities already mentioned as responsible in the initial claim, it is also held as responsible the authority designated as Magistrate of the Third [Unitary] Court of the First Circuit, who is requested to submit a preliminary report". The stay relevantly read:
Based on the provisions of Section 136 of the Amparo Law, IT IS HEREBY GRANTED THE PROVISIONAL STAY of the claimed acts since this does not imply any damage to the social interest and it does not infringe any provisions of public order. ... [F]or the sole purpose that things remain as they presently are and by reason of the claimed acts ...: the claimant [Pasini] be not deprived of his personal liberty and he shall remain at the disposal of this Third District Court ... in regard to his personal liberty, and at the disposal of the acting judge or judges for the continuation of the corresponding criminal procedure.This determination remains in force until the moment when the responsible authorities are notified of the interlocutory judgment to be awarded upon resolution of this incidental proceeding.
...
In the understanding that the suspensory decision (stay) awarded produces effects from the moment when the claimant enters into national territory ... .
The provisional stay was subject to the same kind of conditions, as to the provision of a bond, the making of a preparatory statement before the relevant criminal judge etcetera, as were set in the other stays considered above. The judge granted a definitive stay of the warrants for the arrest of Pasini on 29 March 1999 on substantially the same terms as the provisional stay.
Construction of ss 6(a)(i) and 16 of the Act
50 The foregoing is the context in which the question, "did the Minister act on an erroneous construction of s 6(a)(i) in forming her opinion under s 16(2)(a)?", is said by the applicants to arise. The answer to that question necessarily turns, however, on the terms of the Australian Act and the proper construction of the expression "warrant ... in force for the arrest of a person" in s 6(a)(i).
51 The power under s 16 is a discretionary one that can be exercised only if the conditions in s 16(1) and (2)(a) are met and the condition in s 16(2)(b) is not. Amongst other things, the Attorney-General must have received an extradition request from an extradition country (s 16(1)) and be of the opinion that the person whose extradition is sought is an extraditable person in relation to the extradition country (s 16(2)(a)(i)). In this case, Mexico is the extradition country: see s 5 of the Act and reg 4 of the Regulations. Section 6 sets out exhaustively the criteria for determining whether a person is an "extraditable person" for the purpose of s 16(2)(a)(i). These criteria require the Minister to form an opinion about, amongst other things, whether there is a warrant in force for the arrest of the person whose extradition is sought in relation to an (extradition) offence that the person is accused of having committed. (I return to the concept of extradition offence below.) That is, in order to satisfy the criteria in s 6(a)(i), there must be a warrant that is (i) in force; (ii) for the arrest of a person; and (iii) in relation to an (extradition) offence against the law of a country that the person is accused of having committed.
52 In construing s 6(a)(i), it is, of course, necessary to consider the objects and the terms of the Act as a whole. A principal object of the Act is, as we have seen, to enable Australia to carry out its obligations under extradition treaties with other countries that adopt criminal procedures different from our own: see ss 3(c), 11(1)(a) and (1C) of the Act and reg 5 of the Regulations. Plainly enough, the provisions of the Treaty must also be borne in mind. The Treaty itself is to be interpreted "in accordance with the ordinary meaning to be given to [its] terms in their context and in light of its objects and purpose": see Vienna Convention on the Law of Treaties ("Vienna Convention"), art 31; also Commonwealth of Australia v Tasmania [1983] HCA 21; (1983) 158 CLR 1 at 222-3; Thiel v Commissioner of Taxation [1990] HCA 37; (1990) 171 CLR 338 at 349, 356; and Kainhofer at 562.
53 Pursuant to art 1 of the Treaty (set out above), Australia and Mexico agree to extradite to each other "persons against whom criminal proceedings have been initiated ... for an extraditable offence". The object of the Treaty is, plainly enough, to give effect to that agreement. That object is reflected in the documents that, in accordance with art 16, the requesting party must send with an extradition request. That is, pursuant to art 16.1(b) (also set out above), the requesting party must include:
the original or authenticated copy of the warrant of arrest ... or any other judicial order made under the laws of the Requesting Party which authorizes the arrest of the person and from which the existence of the offence and its commission by the person sought may be reasonable inferred.
The reason for requiring the production of these documents is, so it seems, to enable the recipient of the request to determine whether the person sought fits the description (in art 1) of a person whom the parties have agreed to extradite.
54 The focus of the Treaty, at this point, on the initiation of criminal a proceeding, which is evidenced by the arrest warrant, conforms to the history of extradition. As Gummow J observed in Kainhofer, nineteenth century authorities were particularly concerned with questions about the initiation of foreign criminal proceedings and the existence of foreign arrest warrants against those whose extradition was sought : see 185 CLR at 559-562. It was not, however, until the Extradition (Foreign States) Act 1966 (Cth) that there was any statutory requirement for the production to a magistrate of a foreign arrest warrant: see ss 4(1), 16(1), 17(6) of that Act. There was no such requirement in its statutory predecessor, the Extradition Act 1870 (Imp) (33 and 34 Vict c 52), although as Gummow J noted in Kainhofer at 557:
[I]t was usual for the executive to require "some prima facie evidence of guilt" (Clarke, A Treatise Upon the Law of Extradition, 2nd Ed (1874), p 177) and in some cases the treaty stipulated production of a warrant of arrest "or other equivalent judicial document". (The extradition treaty of 1876 between Great Britain and France so provided; see R v Governor of Brixton Prison [1911] 2 KB 82 at 83, where the text is set out.)
Though the role of the Attorney-General under s 15 of the Extradition (Foreign States) Act 1966 was similar to that under s 16 of the current Act, the Attorney-General was not required under the former Act to consider whether there was a foreign warrant in existence. Subject to one matter, where there was a requisition for the surrender of a "fugitive" and a warrant for the apprehension of the "fugitive" had been issued by a magistrate in an Australian court, the Attorney-General had power to issue a notice similar in terms to a notice issued under s 16 of the current Act. The term "fugitive" was defined in s 4 of the 1966 Act as
a person accused of an extradition crime that is alleged to have been committed, or convicted of an extradition crime that was committed, at a place in foreign State or within the jurisdiction of, or part of, a foreign State.
The Attorney-General was not to give such a notice if "of the opinion that the fugitive is not liable to be surrendered to the foreign state": see ss 12 and 13 of the 1966 Act. The requirement for the production of a duly authenticated foreign warrant was contained in s 17(6) of the 1966 Act. Pursuant to that provision, the foreign warrant was to be produced at the extradition proceeding conducted before the magistrate.
55 The introduction of the expression "extraditable person" in place of the word "fugitive" was effected by the current Act. The explanatory memorandum that accompanied the Extradition Bill 1987 stated, in relation to cl 6:
This clause defines "extraditable person" as a person accused or convicted of an extradition offence regardless of when the offence was or was alleged to have been committed. The definition links the person to a country whose laws have been or are alleged to have been breached and requires that the person is believed to be outside the requesting country.
Parliament did not intend, so the explanatory memorandum indicates, to work any significant change in substituting the term "extraditable person" for the term "fugitive" and in shifting from the concept of "accusation" to the criterion of "warrant in force". The latter expression was, so it would seem, merely intended to provide an objective touchstone for determining whether a person had been accused of a criminal offence and whether that accusation had led to the initiation of criminal proceedings. The criteria for "extraditable person" in s 6(a)(i) can be understood as reflecting these two historically recognised concerns in extradition law.
56 A further reason for the introduction of the "warrant in force" requirement may have been to secure some minimal assurance that the evidence against the suspect at the time of the extradition request justifies a trial under the law of the requesting state. In these cases, the evidence shows that the Mexican arrest warrants have been issued against the applicants following decisions of Mexican judges that the evidence against them is sufficient, at this stage at least, to place them on trial. In this way, the "warrant in force" requirement may have been intended to compensate, in part, for the elimination, by the Extradition (Foreign States) Amendment Act 1985, of the prima facie case requirement in the 1966 Act: see s 17(6) of the 1966 Act.
Must a warrant be immediately executable in the requesting state to be "in force" for purposes of the Act?
57 If the foregoing approach is correct (and in my view it is), there is little significant difference between the notion of a "warrant in force for the arrest of a person" in s 6(a)(i) and "a duly authenticated warrant ... for the arrest of the person" in s 19(3) of the Act. The words "for the arrest, etc" are in both instances merely descriptive of the warrant. That is, the warrant must authorise arrest. The "due authentication" requirement in s 19(3), which is not found in s 6(a)(i), simply reflects the fact that the requirement for formal proof is postponed until a more advanced stage in the extradition process. On this approach, the expression "a warrant in force for the arrest of a person" refers to a warrant that is valid (or, which is the same thing, operational or effective). The fact that a valid warrant is stayed (for a limited time and purpose and upon conditions designed to secure the suspect's presence in the criminal proceeding initiated against him) does not deprive the warrant of relevant "force".
58 Returning to the Treaty, this construction of s 6(a)(i) is consonant with the obligation assumed by Australia under art 1, namely, to extradite persons against whom criminal proceedings have been initiated. The applicants submitted that:
The basis of extradition law and treaties is that a requested state is asked to do that which the requesting state could do but for the absence of the subject from its jurisdiction.
...
A construction of s 6 broad enough to embrace warrants merely issued or in existence would frustrate the purpose of the Act and allow unwarranted interference with the liberty of the accused.
The applicants' argument came down to this: if they cannot, on their return to Mexico, be immediately arrested, because execution of the relevant warrants is stayed, then Australia cannot act upon the basis that it is doing for Mexico what Mexico cannot do for itself by reason of the applicants' absence from the Mexican jurisdiction. If Australia proceeds with the extradition process in these circumstances, there is an unwarranted interference with the applicants' liberty. I reject these submissions.
59 There is a plain difference between, on the one hand, the competence of a state to arrest within its territory persons who are suspected of criminal offences against its laws and, on the other, the competence of a state to apprehend a person who happens to be within its territory in order that it may fulfil its treaty obligations by returning him to a foreign state to be dealt with according to its laws. There is no question of Australia's executing a Mexican arrest warrant. The applicants' submission fails to take account of the fact that a principal object of the Act is to give effect to Australia's treaty obligations, in this case, with Mexico. The true reference point is the Treaty.
60 Under the Treaty, the fact that a warrant, though valid, cannot, for some reason, be executed immediately is not to the point if, by reason of the warrant, a criminal proceeding is initiated against the person sought. This is, in fact, the case in Mexico, as the evidence establishes. Furthermore, the stays, whether provisional or definitive, are not designed to impede the criminal process. On the contrary, the evidence before me clearly shows that the stays are, as a matter of Mexican law, granted in such terms that the relevant criminal proceedings are not impeded and are, to an extent, facilitated by the amparo judges. More to the point, the terms of art 16.1(b) indicate that the issue of an arrest warrant (or a like instrument) is the procedure that has been selected by the parties to the Treaty for establishing that relevant criminal proceedings have begun.
61 Of course, it cannot be denied that considerations of personal liberty are at stake in extradition proceedings. There are, however, not only the interests of the person whose extradition is being sought to be considered, there are also the interests of Mexico and Australia to be borne in mind. As Gummow J observed in Kainhofer at 555, Part II of the Act strikes
a balance between the interests of the extradition country in retrieving those whose return it seeks in respect of offences against its laws, those of Australia in upholding its dominion over those presently on its territory and those of the alleged extraditable persons.
62 I cannot accede to the submission that there is any improper interference with the applicants' liberty by construing s 6(a)(i) to cover a valid warrant which, though stayed, is stayed upon terms that are designed to facilitate the criminal proceedings which concern the applicants. The amparo judges in Mexico refused to stay the extradition process. If the applicants are returned to Mexico, they will enjoy the protection of the stays there, subject to their compliance with the terms of the stays, which includes submission to the authority of the judge in charge of the criminal proceedings. I accept, as the Minister submitted, that it would impede compliance with Australia's Treaty obligations to exclude from the concept of a warrant "in force" a valid warrant that is stayed in a Mexican amparo proceeding, especially when the stay is not intended to impede the criminal proceeding and will cease once the amparo proceeding is resolved.
63 I am fortified in my view that a "warrant in force" for the purposes of s 6(a)(i) may include a valid warrant subject to a stay by the approach taken in Australian courts to cognate questions. Plainly enough, the sense of phrases such as "in force", "of force and effect", "put in force" etcetera depends very much on the context in which they are used. For this reason, none of the cases to which the applicants referred on this matter proved to be of assistance. The circumstances of those cases were too far removed from the present case. The applicants referred to Freer v Murray [1894] AC 576, Tower Justices v Chambers [1904] 2 KB 903 and In re London & Devon Biscuit Co (1871) LR12Eq 190. Freer v Murray concerned a licence for the sale of beer that had expired by reason of the effluxion of time. The Tower Justices Case concerned a beerhouse licence that was forfeited by reason of the holder's conviction for selling spirits without a licence. In both cases, the licence at issue was not merely suspended but ceased to exist. In the last mentioned case, a creditor had obtained judgment in an action against a company and had placed a writ of execution in the hands of the sheriff just three hours before a winding-up petition was presented against the company. It was held in that case that the execution was not "put in force" within the meaning of s 163 of the Companies Act 1862 until possession was actually taken. The point of construction in that case is very different from that which arises in the present case.
64 The Minister referred to L Joseph Pty Ltd v Gray (1939) 56 WN (NSW) 190; Pikor v Smith [1982] Tas R 240 and Gray v Minister for Immigration, Local Government & Ethnic Affairs (1992) 38 FCR 351. None of these cases concerns the effect of a stay upon an arrest warrant. Each concerns stays on a different matter. Nonetheless, the cases show that, in Australia at least, a stay, without more, does not undo or invalidate that which has been legally done prior to the stay. A stay simply preserves things as they are. A stay stops anything from being done which would relevantly alter the position of the parties.
65 L Joseph Pty Ltd v Gray concerned the effect of a stay of proceedings under the Moratorium Act 1932 (NSW) on a writ of fieri facias. Bavin J rejected a submission that, after the sheriff had received notice of the stay, his continued possession of the goods earlier taken under the writ was unlawful. His Honour said at 195-6:
A stay of proceedings, as I understand it, does not require anything to be undone that has been legally done. It does not require the party against whom it operates, to alter the legal position that has already been created. It merely prevents anything from being done that would in any way alter that position....
I think the effect of the stay is to leave the position in fact, just as it is, and to forbid the Sheriff to take any steps which would alter the legal position.
66 In Pikor v Smith, Cox J held at 243 that a warrant of arrest under s 78(4) of the Justices Act 1959 (for non-payment of a fine) was valid, even though issued pursuant to proceedings that were stayed after the warrant issued.
67 Gray v MILGEA relevantly concerned the effect of a stay on a deportation order. The applicant, who had been arrested under the deportation order prior to the grant of a stay pending an appeal from the Administrative Appeals Tribunal to this Court, contended that since the deportation order had been stayed pending appeal, it was not "in force" within the meaning of s 93(1) of the Migration Act. Burchett J said at 353:
But that is to mistake the effect of a stay. Although the Minister must temporarily hold his hand, the order has not ceased to be in force. Its ultimate operation is merely suspended.
This general understanding of the effect of a stay upon a judicial order or administrative direction is also reflected in the ordinary meaning attending the words "stay" and "in force". The Oxford English Dictionary (2nd Edition) supplies the following definitions:
Stay 25. To stop, arrest, delay, prevent (an action or process, something which is begun or intended).Force. 8c. in force: operative or binding at the time.
The Macquarie Dictionary gives similar guidance.
68 Under Australian law, the ordinary position would seem to be that a mere stay upon an instrument in the nature of an arrest warrant would not impugn whatever had been done under its authority prior to the stay and would not invalidate the warrant. The effect of a stay is merely to stop anything being done that would materially alter things from the status quo at the time the stay was granted. This means that, subject to the relevant statutory provisions, a warrant for the arrest of a person would ordinarily be said to remain "in force" though subject to a stay. Hence, it would ordinarily be said that a valid warrant, though stayed, is in force. This was, in my view, what Parliament intended by the expression "warrant ... in force for the arrest of a person" in s 6(a)(i) of the Act. The warrant would, of course, cease to be in force if it were revoked, quashed, or annulled. If the applicants' amparo proceedings in Mexico ultimately succeed, the result may well be that the warrants cease to be in force. This had not happened at the time the s 16 notices issued.
69 In any event, even if it is correct to say (contrary to my view) that warrants for non-serious offences subject to amparo stays are not "in force" for the purposes of s 6(a)(i) of the Act, the applicants would not show that the Minister acted on an erroneous construction of that provision in either V 120 or V 121. This is because, at the time the Minister gave the notices challenged in those matters, neither she nor her Departmental officers knew about the amparo stays. The question whether the amparo stays deprived the warrants of their force did not arise in either matter. It could only arise in V 222 where the Minister was aware of and took into account the amparo stays.
Have the amparo stays come into effect?
70 Before turning to another ground, I deal with an alternative justification put forward by the Minister. This was as follows: if a stay on the execution of an arrest warrant meant that the warrant was no longer in force, nonetheless, it had not been shown that the Minister had acted on an erroneous construction of s 6(a)(i) when she issued the notice following Mexico's second extradition request for Cabal. This was because the Minister took the view that, as a matter of Mexican law, the stays did not come into effect until the applicants re-entered Mexican territory. The Minister might equally have said that if she acted on an erroneous understanding of the effect of the stays, then that error (as to Mexican law) was merely an error of fact and unreviewable by this Court.
71 The evidence showed that Cabal's solicitors wrote to the Minister by letter dated 24 February 1999, informing her of the amparo stays and asserting that the arrest warrants for non-serious offences were not "in force". The matter was referred to Mexico for comment. Mexico responded by a letter dated 10 March 1999, stating that "the effect of such Suspensions are [sic] conditional upon ... Cabal returning to Mexican territory". This information was accepted by the Departmental officers advising the Minister in their memorandum of 22 March 1999. It may be assumed that the Minister accepted their advice. Accordingly, she must have acted on the assumption that the effect of the amparo stays was conditional on Cabal returning to Mexico.
72 At the hearing of these applications, the Minister led evidence (notwithstanding that she maintained an overarching relevance objection to the applicants' evidence of the same kind) that the stays were not yet in effect; and that they would not come into effect until the applicants returned to Mexico. This meant that, in each instance, a warrant, though the subject of a decision to grant a stay, had not actually been stayed at the time the Minister made her decision to issue a s 16 notice.
73 Agustin Acosta Azcon, a lawyer expert in Mexican criminal and amparo law, gave evidence that an amparo stay generally takes effect immediately pursuant to art 139 of the Amparo Law, but that (save in one instance) this is not the effect of the stays upon which the applicants rely. The only stay which took effect when it was granted was, according to Mr Acosta, the provisional stay granted Cabal on 22 February 1999, in respect of a warrant issued on 22 December 1998, made definitive on 22 March 1999. He testified that, in each other instance, a decision to grant a stay had been made but the stay itself would not take effect until the petitioner returned to Mexico. In support of his opinion, Mr Acosta referred to the specific terms of each stay, to the terms of art 136 of the Amparo Law, and to jurisprudence. (I interpolate here that, according to the civil law tradition, legislation is the fundamental source of law in Mexico. Judicial decisions play only a supplemental role. In relation to judicial decisions, binding effect attaches only to what are termed jurisprudencia obligatoria, or jurisprudences. The Mexican Supreme Court and Collegiate Tribunals can establish binding jurisprudence on themselves, lower federal courts, State courts, Administrative Tribunals and Labour Courts.) Mr Acosta said that art 136, which specifically related to criminal amparos, permits an amparo judge to impose a condition that made the stay effective only when the petitioner enters Mexico, bearing in mind that it is not until then that the petitioner can comply with any requirement to attend before the judge in charge of the criminal proceeding. In his view, art 139 does not apply, because art 139 allows only 5 days for compliance with stay conditions and it is clear that the petitioners could not present themselves to the judges in the criminal matters within that time.
74 Two other Mexican lawyers, Alberto Conrado Zinser Cieslik and Marco del Toro, both expert in criminal and amparo law, testified that, not only do amparo stays generally have immediate effect by virtue of art 139, but, in each instance, the applicants' stays are expressed to take effect from the date of their grant. Mr Zinser and Mr del Toro gave evidence that the terms of the stays contain only conditions subsequent for their continuation once the applicants return to Mexico. In granting the stays, the amparo judges have not, so they testified, made the commencement of the stay contingent or conditional on any event, such as the petitioner's return to Mexican territory.
75 Messrs del Toro and Zinser referred to the specific terms of the stay orders, which in each instance included words to the effect that "The provisional suspension is granted ... maintaining things in their status quo". By virtue of art 139, an amparo stay produces effect, Mr del Toro said, from the moment it is granted, in the sense that from that moment the responsible authorities are required to be notified of the stay and of its "paralysing" effect on the act of authority against which it is directed (here, an arrest warrant). In response to Mr Acosta's evidence that art 136 permits amparo judges to make the effect of a stay conditional upon the petitioner's return to Mexico, Mr del Toro and Mr Zinser said that that provision only dealt with the conditions that might be imposed in criminal matters once a stay had been granted, with a view to ensuring that the criminal process could continue. Article 136 does not, in their view, permit any departure from art 139.
76 There is, as one might anticipate, much common ground between Messrs Zinser and del Toro, called by the applicants, and Mr Acosta, called by the Minister. Their evidence is that decisions to grant stays had been made and that, by virtue of art 139, an amparo stay ordinarily takes effect from the moment it is granted. Moreover, I did not understand Mr Acosta to contest that the decision to grant a stay produces immediate legal consequences, such as the need to notify the responsible authorities of the stay and its terms. Plainly enough, a number of the conditions attaching to the stays are in the nature of conditions subsequent to the applicants' return to Mexico (e.g., the reporting requirements).
77 The matter upon which the experts disagree is whether the operation of the stays is, in each instance bar one, conditional upon the applicants' return to Mexico. I accept Mr Acosta's evidence that there is a debate amongst Mexican lawyers as to whether art 139 or art 136 is applicable in the circumstances in which they made their amparo petitions; and that there is no jurisprudence directly on point. I accept that there is in Mexico respectable opinion that, in the peculiar circumstances of Cabal and Pasini, an amparo judge has the authority, by virtue of art 136, to impose a condition that makes the efficacy of a stay conditional upon the relevant applicant's return to Mexico. I also accept, as Mr Acosta testified, that jurisprudence established by the Supreme Court accords an amparo judge ample discretionary power to formulate measures that may be imposed on amparo stay as conditions of efficacy.
78 I am not satisfied, on the evidence before me, that all the stays took immediate effect upon pronouncement. In each instance bar one, the stay specifically stated "This precautionary measure will only be effective if the complainant, when returning to national territory ...". On one view, the pairing of the future tense, "will ... be effective", with the conditional clause that follows makes it difficult to say (as the applicants do) that the stays were effective at the moment they were granted. (The exception was a (non-serious offence) warrant, referred to in the second extradition request for Cabal that was the subject of a provisional stay granted on 22 February 1999.) The sentence may, of course, be read as no more than a statement of the plain fact that the stay will not have any practical effect until the applicant's return because an arrest warrant cannot be executed abroad. In light of the text and Mr Acosta's testimony, however, I am not satisfied that the stays were intended to operate as the applicants contended.
79 The failure to exercise jurisdiction has to be shown to support a grant of mandamus: see Re Coldham; ex parte Brideson [1989] HCA 2; (1989) 166 CLR 338 at 349; and Re Operative Plasterers Workers Federation of Australia; ex parte Brown (1992) 67 ALJR 179 at 180. I accept, as the Minister contended, that there was no error shown in the formation of her opinion that could have resulted in a constructive failure to exercise jurisdiction. Even if the applicants were correct about the operation of the stays, any consequential mistake on the Minister's part would be in the nature of a mere (non-jurisdictional) error of fact. It could not be said that there was any error amounting to a misunderstanding on the Minister's part of the opinion that she was to form: see R v Connell; ex parte Hetton Bellbird Collieries Ltd [No 2] [1944] HCA 42; (1944) 69 CLR 407 at 432; Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420; and Re Boyne Smelters Ltd; ex parte Federation of Industrial Manufacturing & Engineering Employees of Australia (1993) 177 CLR 446 at 457.
DID THE MINISTER FAIL TO TAKE ACCOUNT OF RELEVANT CONSIDERATIONS?
80 The Act makes the Minister's opinion as to whether a person is an extraditable person decisive, although the formation of the opinion may be subject to judicial review: cf Ex parte Walsh & Johnson; in re Yates [1925] HCA 53; (1925) 37 CLR 36 at 37 and Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 275-276. As Brennan CJ, Toohey, McHugh and Gummow JJ said in Wu Shan Liang at 275-276:
The judgment of Gibbs J in Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 at 118-119 accurately reflects the position prior to the enactment of the [Administrative Decisions (Judicial Review) Act 1977 (Cth)]. His Honour said:`It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.'
To the same effect, see Construction, Forestry, Mining & Energy Union v Giudice (1998) 159 ALR 1 at 9. (The present proceedings are not, of course, subject to the Administrative Decisions (Judicial Review) Act 1977 (Cth)).
81 The only matter that this Court can consider is whether the Minister formed her opinion according to law. It is plainly not open to the Court to determine these applications on the basis that it would or would not, on the material now before it, form the same opinion as the Minister did at the relevant time on the material before her. Equally as plainly, it is not open to the Court to attribute to the Minister the opinion that it says she ought to have held, or would have held if she had not fallen into error: cf Kolotex Hosiery (Aust) Pty Ltd v Commissioner of Taxation (Cth) [1975] HCA 5; (1975) 132 CLR 535 at 567.
82 That being said, the failure of the decision-maker to take into account a relevant consideration in the making of an administrative decision (such as a decision under s 16 of the Act) entitles a person with standing to seek judicial review of the decision on the ground that it was ultra vires. The ground can only be made out if the consideration is one that the decision-maker is bound to take into account in making the decision, which in turn depends on the legislation pursuant to which the decision is made.
83 I put aside, for the moment, the question whether the Minister knew, actually or constructively, about any amparo stay at the time she issued the s 16 notices. Can it be said that such a stay is relevant to whether there is an arrest warrant in force for the purposes of s 6(a)(i)? If not, then there is no basis upon which it can be said that the stay is relevant to the formation of the opinion referred to in s 16(2)(a)(i).
84 As already indicated, s 6(a)(i), properly construed, extends to a valid warrant that is stayed, upon conditions, for a limited time and for a limited purpose. An amparo stay is a stay of this kind. The existence of an amparo stay is not, therefore, relevant to any of the criteria set forth in s 6(a)(i) that make up the definition of "extraditable person". Consequently, it cannot be said that an amparo stay is a relevant matter that the Minister is bound to take into account in forming her opinion under s 16(2)(a)(i).
85 There are other difficulties in the applicants' way. First, it is plain that the Minister did in fact consider the amparo stays on the warrants relied on by Mexico in its second extradition request for Cabal. The fact that her view of the effect of stays was different from the applicants (or even wrong) does not of itself make out a ground for review. Secondly, at the time the Minister issued the notices based on Mexico's first extradition request for Cabal and its request for Pasini, she did not actually know of any amparo stay. Nor did the Departmental officers advising her. The general rule is that an administrative decision-maker, such as the Minister, is required to make a decision on the basis of the material actually or constructively available to her at the time the decision is made. This is not a case in which it can be said that the Minister had constructive knowledge of the stays in the sense explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 30-31, 45-46 and 65-66. Her Departmental officers knew no more of the stays than she did. (Further, for the reasons set out below, this was not an occasion when the Minister was required to consider more than the material that was actually before her and her advisers.)
86 Finally, there was the fact that the stay provisionally granted in Mexico on 20 January 1999 at Pasini's request would not have been effective to prevent his arrest had he been in Mexico on 21 January 1999 when the Minister issued the s 16 notice concerning him. This was the clear effect of the evidence. Mr del Toro and Mr Acosta agreed that the provisional stay of 20 January 1999 had no effect on the warrants for Pasini's arrest. This was because the stay did not refer to the correct issuing authority, the Third Unitary Court of the First Circuit. (It mistakenly referred to judges of the District Court in criminal matters.) The defect was not a mere technical one. The stay of 20 January 1999 specifically provided that:
The cautionary measure conceded will be null and void should the warrants for arrest be issued by judicial authorities other than those indicated herein ... .
There was, therefore, no effective stay on the warrants for Pasini's arrest prior to 23 February 1999 when the defect was remedied. Pasini's counsel submitted that the curable character of the defect and the fact that a stay of sorts had been obtained were relevant matters that the Minister was bound to consider in forming her opinion. But if, as I hold, the Minister was not bound to consider an effective stay, then it can scarcely be said that she was bound to consider an ineffective one.
Prescription of the money-laundering prosecution
87 Cabal also submitted that, in considering whether to issue the second s 16 notice against him, the Minister was bound to take into account as a relevant matter the fact that, in the circumstances of the case, his prosecution for money-laundering was prescribed under Mexican law, or that there was a body of legal opinion that thought it was. I reject this submission.
88 The Treaty defines "extraditable offences" in art 2 as "those offences, however named, which are punishable under the laws of both Parties by a penalty no less severe than deprivation of liberty for a maximum period of at least one year". As we have seen, this is reflected in the statutory definition of "extradition offence" in s 5 of the Act (which is in turn incorporated into the definition of "extraditable person" in s 6). There is no reference in the definitions of "extraditable offence" in the Treaty or "extradition offence" in the Act to the concept of prescription. In the Treaty, prescription is dealt with in art 8, which falls within a group of provisions appearing under the heading "Exceptions to Extradition". A number of these exceptions are dealt with in the Act as "extradition objections", as defined in s 7: compare s 7(a) with art 5.1, s 7(b) and (c) with art 5.2, s 7(d) with art 6 and s 7(e) with art 7. There remain, however, some exceptions in the Treaty, such as art 8, which are not specifically referred to in the Act. Bearing in mind s 11 of the Act and reg 5 of the Regulations, the Act cannot, of course, operate to allow extradition "when criminal proceedings can no longer be instituted by reason of lapse of time", for that would be contrary to art 8. In such a case, the Act makes provision in s 22(3)(e) for refusing surrender. By virtue of s 22(3) the Attorney-General can only make the ultimate decision to surrender if he or she is satisfied of matters set out in s 22(3)(a) to (f). Section 22(3)(e) reads:
For the purposes of subsection (2), the eligible person is only to be surrendered in relation to a qualifying extradition offence if:...
(e) where, because of section 11, this Act applies in relation to the extradition country subject to a limitation, condition, qualification or exception that has the effect that:
(i) surrender of the person in relation to the offence shall be refused; or
(ii) surrender of the person in relation to the offence may be refused;
in certain circumstances - the Attorney is satisfied:
(iii) where sub-paragraph (i) applies - that the circumstances do not exist; or
(iv) where sub-paragraph (ii) applies - either that the circumstances do not exist or that they do exist but that nevertheless surrender of the person in relation to the offence should not be refused . . .
The issue of prescription of an extradition offence thus falls to be considered under s 22(3)(e) of the Act. (Aside from s 22(3)(e), it might fall for consideration under s 22(3)(f).) The Minister was not bound to take into account the possibility of prescription in forming her opinion under s 16(2)(a), there being provision elsewhere in the Act for consideration of that matter.
89 Turning to the matter of general discretion, the applicants did not really contend that the stays were relevant matters that the Minister was bound to take into account in the exercise of her general discretion under s 16(1). The Act does not specify any additional considerations that the Minister must or may consider at this point. The discretion is, in this sense, unconfined. In this circumstance, the courts will not find a decision-maker is bound to take a particular matter into account unless that implication is to be found in "the subject matter, scope and purpose of the Act": Peko-Wallsend at 40. These matters do not give rise to any implication that the Minister was bound to consider any amparo stays of which she had knowledge at the relevant time. Nor was she bound to consider the issue of prescription in exercise of her general discretion. Indeed, if the conditions precedent to the exercise of s 16(1) power are met (and s 16(2)(b) presents no obstacle), there are few, if any, matters that the Minister is bound to consider before exercising the power.
90 If I were wrong in my view that the Minister was not bound to consider the issue of prescription in issuing a notice under s 16, I would find that the applicant Cabal had not established the facts upon which he relied to make out this part of his case. In order to understand how this part of the case was put, I set out below a brief outline, by way of introduction, of the relevant Mexican law. None of it is in contention.
91 Under Mexican law, there are two types of prescription (or time-limitation) for criminal action. One refers to the period in which the Public Prosecutor must finish his preliminary investigation, place the case in the relevant court, and bring a person to criminal trial. The other (relevant here) refers to the period in which the victim must present a querella (if the offence is a querella offence). In this context, the word "victim" refers not only to an individual who has suffered directly as a result of a criminal act but also to any institution that is responsible for initiating a complaint. For the purposes of a money-laundering offence, the Ministry of Treasury and Finance ("the Ministry") possesses the power to initiate a querella.
92 Prescription is said to be personal. In the case of querella offences, there is generally a requirement that the querella be presented within a year from the time at which those entitled to file it knew of the acts constituting the offence and the probable responsibility of the offender. In the case of money-laundering, however, art 100 of the Federal Tax Code prescribes the prescription period. That period may be calculated in two ways, but, for present purposes, it is enough to say that the period expires three years from the time when the Ministry becomes aware of the offence and of the alleged offender.
93 Under Mexican law, the inspection and supervision of credit institutions is handled by the National Banking Commission ("the Commission"). When an inspection of a banking institution discloses irregularities which could constitute an offence, the Commission must give an "opinion" to the Ministry, through the Attorney-General for Tax Matters ("AGTM"). The AGTM is a body within the Ministry which decides whether the evidence justifies presenting a querella. The Commission is itself an "organo deconcentrado", or a decentralised (administrative) body within the Ministry. Because the Commission is a decentralised body, it does not have the power to represent the Ministry or to initiate proceedings on the Ministry's behalf. Those powers are conferred on the AGTM. There is an audit office within the Commission. It is that office which first becomes aware of any irregularities in relevant finance or credit institutions. The audit office reports such irregularities to the directorate of crimes in the legal vice-presidency of the Commission. The legal vice-presidency analyses the facts and issues in an opinion, which it presents to the AGTM.
94 Turning to the areas of contention, Jose Luis Izunza Espinosa, a Mexican attorney called by the applicants, gave evidence that, under Mexican law, the Commission's knowledge of the circumstances of the offence and the identity of the offender is to be equated with or attributed to the Ministry for the purposes of determining when the prescription period begins to run. Mr Zinser gave supporting evidence. Mr Izunza's evidence was that there are five decisions of Collegiate Tribunals, between 15 June 1999 and 7 December 1999, that together constitute jurisprudence to the effect that the knowledge of the Commission is to be imputed to the Ministry for prescription purposes. The money-laundering was prescribed, according to Mr Izunza, because the Commission had become aware of the offence and Cabal's alleged involvement in it on 6 or 12 June 1995 (when the audit office made a report to the Commission identifying the relevant facts, alternatively when the Assistant Prosecutor for the Ministry transcribed the text of that report). On Mr Izunza's approach, the querella against Cabal was presented two months and eleven days after the term prescribed by art 100 of the Tax Code had expired.
95 Another Mexican attorney, Marcelo Angel Garza, who has been director of Mutual Legal Assistance in the office of the Attorney-General for Mexico since October 1996, gave evidence to the contrary effect. His evidence was that the critical date, for prescription purposes, was 28 August 1995 when the Commission presented its opinion on the offence and Cabal's alleged involvement in it to the Ministry. On his view, the querella, which was presented on 20 August 1998, was within time. Mr Garza relied on a number of judicial decisions, none of which he said were binding on other courts, but which he said discussed the principles relevant to prescription in analogous cases. The effect of those decisions was that the knowledge of the Commission was not to be attributed to the Ministry. Mr Garza testified that of the five decisions referred to by Mr Izunza, only two (of 14 July and 7 December 1999) contained a criterio, or abstract statement of legal reasoning, that might lay the foundation for jurisprudence in the terms claimed by Mr Izunza. In summary, the essence of Mr Garza's evidence was that the question, whether the Commission's knowledge is to be imputed to the Ministry for prescription purposes, is a matter of debate amongst lawyers in Mexico. There are no binding judicial decisions nor any legislation directly on point.
96 This difference in approach between Messrs Garza and Izunza arose from a more fundamental difference of opinion as to the way that jurisprudence is created in Mexico. As already noted, binding effect attaches only to what are termed jurisprudencia obligatoria, or jurisprudences that are established by the Mexican Supreme Court and Collegiate Tribunals. Jurisprudence may be formed in one of two ways. The first is through the accumulation of five consecutive jurisprudential theses of the Supreme Court or Collegiate Tribunals on the same point of law, uninterrupted by any contrary decision. A jurisprudential thesis is extracted from a concrete decision, though not all decisions will result in a jurisprudential thesis. A thesis is a concise statement of a single legal conclusion, abstracted and summarised from the conclusions of law expressed in the relevant decision. The court is responsible for the formulation of theses, which are published in the Federal Legal Weekly. If five theses on the same point of law are generated, jurisprudence will be published, again in the Federal Legal Weekly, re-stating the legal conclusion and referring to the five underlying theses. When established by the Full Supreme Court, each of the decisions contributing to the formulation of jurisprudencia must be approved by a majority of at least fourteen ministers. In the chambers, a majority of four is required. In the Collegiate Tribunals, the unanimous vote of the Tribunal's three Magistrates panel is required: Amparo Law, arts 192 and 193. Unless they comprise jurisprudence, individual theses may have persuasive effect, but they are in no way binding in subsequent cases.
97 The second means by which jurisprudence can be formed is where Collegiate Tribunals of separate circuits, or different chambers of the Supreme Court, arrive at contradictory theses. In this instance, the contradiction may be brought by an appropriate party or authority before the Supreme Court for resolution: Amparo Law, art 195 bis. The Supreme Court's decision in these situations constitutes jurisprudence.
98 The invocation of jurisprudence in a concrete case is governed by art 196 of the Amparo Law, which provides that "[w]hen the parties in the amparo suit invoke the jurisprudencia of the Court, or of the Collegiate Tribunals, they shall do so in writing, expressing the sense of the theses cited, and designating precisely the judgments that support them".
99 Mr Garza, who was supported in this respect by Mr Acosta, gave evidence that jurisprudence cannot be created unless the requirements of art 195 are met and that jurisprudence can only be invoked in accordance with art 196. Mr Garza produced jurisprudence that tended to confirm this view of art 196. Messrs Garza and Acosta also stated that art 76 bis (II), relied on by Mr Izunza (see below) was directed to a different issue, namely, the rectification of an omission in a petition regarding "concepts of violation".
100 None of the five decisions to which Mr Izunza referred had been dealt with in conformity with arts 195 and 196. He gave evidence that jurisprudence could nonetheless be created at the moment when the fifth decision re-stating a thesis was given. In this regard, it did not matter, he said, that the decision (or decisions) had not been published in conformity with art 195, or that a party would be unable to give the information referred to in art 196. Documentary proof of a relevant decision might be given instead. Mr Izunza relied on art 76 bis (II) of the Amparo Law in support of the proposition that a petitioner in a criminal matter could invoke jurisprudence without complying with art 196.
101 The correct position in relation to art 195 is, so it seems to me, that matters of publication, distribution and the like are mere formalities. They are not pre-requisites to the creation of jurisprudence. The contrary is the case in relation to the other requirements made by that provision. It must be kept in mind that a jurisprudential thesis is not identical to the decision from which it is extracted. Matters regarding the formulation, elaboration and declaration of a jurisprudential thesis are the sole responsibility of the relevant magistrates who must approve the theses. The rules made by the Mexican Supreme Court regarding the formulation, elaboration and declaration of a jurisprudential thesis by that Court or the Collegiate Tribunals emphasise the mandatory nature of this responsibility. One object of art 195 (and art 196) is to allow other judges to verify a thesis, its declaration, re-statement and approval. It may well be that a judge may rectify non-compliance with art 196, at least in criminal matters, by recourse to art 76 bis. That is, the judge may supply jurisprudence that the petitioner has failed to cite. It is clear, however, that there can be no certainty about the creation of a jurisprudential thesis until the art 195 rules as to thesis formulation, declaration, re-statement and approval are met. In this circumstance, I am not satisfied that the five decisions to which Mr Izunza referred amounted to jurisprudence. Moreover, having regard to the evidence of Mr Garza (scarcely challenged in cross-examination), there may well be no common criterio in the five decisions that would lay the foundation for the jurisprudential thesis asserted by Mr Izunza.
102 After the second s 16 notice had issued on 30 March 1999 in respect of Cabal, an amparo judge at first instance in Mexico ruled that the money-laundering offence was prescribed on the basis that the Commission's knowledge in June 1995 was to be imputed to the Ministry. That decision is under review. Under Mexican law, it has no effect until the review is determined. Plainly enough, the issue of imputed knowledge is, as Mr Garza said, a live one in Mexico. There are now decisions for and against the position for which Cabal contends. I am, however, unable to accept the applicant's submission that, as at 30 March 1999, there was a significant body of opinion in Mexico that the knowledge of the Commission was to be imputed to the Ministry. Whatever the present status of the five decisions and whatever the principles for which they stand, they were made months after that date.
103 There are other difficulties in the applicant's way on the prescription issue. In their letter to the Minister of 24 February 1999, the solicitors for Cabal asserted that the limitation period as regards each of the four warrants that were the subject of Mexico's second request had expired. If the Minister considered the contents of this letter and Mexico's response (as I find she did), then she would have considered the issue of prescription generally. There was, however, no specific mention in the letter of 24 February 1999 of the complex point taken by Mr Izunza about the initiation of the prescription period for the presentation of a querella for money-laundering. No reader would have been likely to appreciate that it was being raised. According to the evidence, the Minister was not informed of the point until Mr Izunza's sworn statement of 31 May 1999 was served as an exhibit to an affidavit of George Defteros of 8 June 1999. It follows that the Minister had no knowledge, whether actual or constructive, of the point until well after 30 March 1999 when she issued the relevant notice. (Further, unless the response from Mexico of 10 March 1999 was written in bad faith (as Cabal in fact contends), Mexico too did not appreciate the point.)
WERE THE DECISIONS TO ISSUE A NOTICE UNREASONABLE?
104 The applicants relied on Wednesbury unreasonableness as a ground of review. They submitted that each of the Minister's decisions to issue a notice was so unreasonable in the circumstances that no Minister, properly advised of the relevant facts and instructed as to the law, could have formed the opinion that the applicants were extraditable persons.
105 Under this ground, the applicants re-iterated their submissions that (1) the Minister had acted on a misconstruction of the expression "extraditable person", and that (2) she had failed to give proper consideration to the amparo stays and prescription of the money-laundering offence. For the reasons already given, these submissions must, I think, also fail. The applicants contended, however, that the Minister's failure to obtain further information about the stays and the prescription period was so unreasonable that no reasonable Minister could have taken that course. For the reasons about to be given, that submission also fails.
106 As to the amparo stays, the applicants submitted that the Minister "ought to have asked herself [and presumably Mexico] whether there were any stays or judicial rulings or orders in operation which deprived the warrants of force". For these purposes, the parties accepted that the Court is entitled to consider only those facts which were known to the Minister, actually or constructively, and such additional facts as the Minister would have learned but for any unreasonable conduct on her part: see Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-170 and Simonsz v Minister for Immigration & Ethnic Affairs (1995) 56 FCR 492 at 498 (both under s 5(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth)); and compare Minister for Immigration & Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 289-290. Such conduct might consist in failing to inquire about matters relevant to the decision to be made, notwithstanding that the decision-maker knew that such information was readily available. If this approach were correct and the applicants were to show that the Minister would have learned of additional relevant information had she acted reasonably, then the court would be entitled to receive evidence as to the existence and nature of this information: see Prasad at 170, referring to Parramatta City Council v Pestell [1972] HCA 59; (1972) 128 CLR 305 at 322-324 per Menzies J. The information thus received falls to be considered in answering the question, whether the decision was so unreasonable that no reasonable person could have made it.
107 On account of this, the applicants' case on the Wednesbury unreasonableness ground turns on whether:
(a) the Minister did not become aware of the amparo stays because of conduct on her part that was so unreasonable that no reasonable Minister would have engaged in it; and
(b) if she had been aware of the stays, the decision that she in fact made (to issue a s 16 notice) would have been outside the scope of any decision that a reasonable decision-maker would have made.
In order to succeed, the applicants must show that an affirmative answer is correct for both questions. (In light of what I have already said, they cannot, I think, succeed on the second question.)
108 Be that as it may, a provisional stay on the thirteen warrants that formed the basis of Mexico's first extradition request was granted in Mexico on 18 December 1998. The relevant s 16 notice (in relation to the applicant Cabal) was granted on 7 January 1999. Assuming in the applicant's favour that information about the stay and its effects can aptly be described as "centrally relevant to the decision to be made" (see Prasad at 170), the evidence does not show that as at 7 January 1999 the Minister or her Departmental advisers knew (or ought to have known) that such information was readily available and had not been given to them. There is, therefore, no evidence of any conduct by the Minister or any Departmental officer prior to the giving of notice on 7 January 1999 that was unreasonable in the Prasad sense.
109 In order to overcome this difficulty, the applicants contend that the material available to the Minister and her advisers included information available to Mexico. In written submissions, the applicants said:
The Mexican officials providing information to our government are in the position of `information gatherers' for the Department. In a practical sense the Minister `outsources' the task of fact finding to them.
Aside from the fact that the applicants referred to Australia elsewhere as an agent for Mexico, the above passage entirely misdescribes the relationship between Mexico and Australia as co-equal sovereign states. In this context, the relevant relationship is that which arises under the Treaty. The Treaty makes provision for extradition requests, the manner of their making, and accompanying documents and the manner of their authentication.
110 Pursuant to art 16(1)(b) of the Treaty, Mexico was obliged to send with its extradition request "the original or authenticated copy of the warrant of arrest ... or any other judicial order made under [Mexico's] laws ... which authorizes the arrest of the person and from which the existence of the offence and its commission by the person sought may be reasonably inferred". An arrest warrant does satisfy this description, and its provision meets the obligation under art 16(1)(b). In any event, an amparo stay does not answer the description. It does not authorise arrest. That is so, even in the case of serious offences. There is no other provision in the Treaty that would call for Mexico to provide the stay orders.
111 The applicants contend that:
A stay is logically of the same order as a warrant; it simply makes the decision the other way. Arrest warrants as documents are not of interest in themselves, but only because of their practical consequence: the grant of the power to arrest the person. So any judicial order having consequences in the same sphere (liberty of the person) is equally relevant, regardless of whether or not, as a formal document, it is entitled `arrest warrant'.
As we have seen, however, the Treaty provides for the production by the requesting state of an arrest warrant (or like instrument) because this shows that a judicial authority in that state has formed the view that there is sufficient evidence to require a suspect to answer charges for an offence and, for that reason, has given authority for the suspect's arrest. An amparo stay says nothing to the contrary of this. An amparo stay, even though definitive, is an interlocutory aspect of proceedings collateral to the criminal prosecution. Amparo stays do not inhibit criminal proceedings, but, on the contrary, must facilitate them. Bearing in mind the nature of an amparo stay, there is nothing in the Treaty that gives rise to an implication that, where a stay is granted, the stay order must accompany any extradition request. In this circumstance, it would be a nonsense to treat information concerning the stay that might have been available to Mexico as information available to Australia (and the Minister). This case is not, as the applicants would have it, analogous to the situation under consideration in Peko-Wallsend.
112 Accepting that a duty to inquire may arise, there is no basis upon which it can be said that that duty arose in connection with the Minister's decision to issue a s 16 notice against Cabal on 7 January 1999. In this circumstance, the next question, whether the Minister's decision would have been unreasonable in the Wednesbury sense if she had had that information, cannot arise in connection with the 7 January notice.
113 An analogous question arises, however, in the case of the 30 March 1999 notice, which was issued following Mexico's second request for Cabal. In this instance, the Minister was informed of the amparo stays on three of the four relevant warrants. In this context, too, the applicant alleges Wednesbury unreasonableness. In consequence, the question, whether the decision to issue the notice was not one that a reasonable decision-maker, being informed of the stays, could have made, arises directly.
114 As already seen, the Minister was informed of these amparo stays by a letter of 24 February 1999 from Cabal's solicitors. At that stage, the Minister took steps to clarify the matter and sought a response from Mexico. That was a reasonable thing to do. Mexico responded, in detail, by letter of 10 March 1999, setting out Mexico's understanding of the effect of the stays. That understanding was accepted by the Departmental officers who were advising the Minister and, ultimately, by the Minister herself. I reject the applicant Cabal's submission that to proceed in this way was beyond the range of responses a reasonable Minister could give. As I have already indicated, there was nothing inherently unreasonable in Mexico's explanation of the stays and their operation and in the Minister's (and her advisers') acceptance of that explanation. It was open to the Minister, acting reasonably, to accept Mexico's account.
115 What was the position on 21 January 1999 when the Minister issued the s 16 notice against Pasini? Mexico's extradition request, dated 12 January 1999, was forwarded by the Mexican Embassy to Australia on 20 January 1999. The first provisional stay (which was not effective to stay execution of the relevant warrants) issued in Mexico upon Pasini's application on 20 January 1999. There is no basis upon which I can infer that the stay was granted in Mexico before Australia received the extradition request. (The difference in time zones, it may be recalled, is marked.) The applicant Pasini's submission about the 21 January 1999 notice therefore fails at a number of levels. First, the Minister and her advisers knew nothing of the stay. Secondly, it would be wrong to treat information about the stay that might have been available to Mexico as information available to Australia. Thirdly, the evidence does not permit an inference to be drawn that Mexico knew of the provisional stay prior to forwarding its extradition request to Australia. Fourthly, for the reasons already given, it was within the scope of reasonable decision-making to issue the notice though the decision-maker knew of an effective stay. Finally, in this case, as we have seen, the provisional stay of 20 January 1999 was not effective to prevent execution of the relevant warrants. The fact that the defect was curable is, in my view, beside the point.
116 The applicant Pasini also argued that knowledge on the part of Departmental officers that a stay had been granted in Mexico on Cabal's application gave rise to a positive duty on the part of the Department (and the Minister) to make inquiries with respect to the existence of any amparo stay affecting the execution of the warrants for the arrest of Pasini. The fact is, however, that it cannot be inferred that, as a result of any such inquiries, the Minister's advisers (and the Minister) would have learned of the ineffective provisional stay granted in Mexico sometime (and it is not known when) on 20 January 1999
117 The applicant Cabal also relied on the Wednesbury principle with respect to the Minister's refusal to realise that the money-laundering prosecution was prescribed, or that there was a substantial body of legal opinion to that effect in Mexico. As I have already stated, I am unable to accept either of the claims on which this submissions relies. Moreover, once Cabal's solicitors raised the matter of prescription in their letter of 24 February 1999, the Minister, acting reasonably, sought and obtained a response from Mexico. By letter dated 10 March 1999, Mexico set out, in a comprehensive and measured way, its understanding of the state of Mexican law as to prescription. There is no basis upon which it could be said that the Minister acted unreasonably in accepting Mexico's statement of the law. The point that has been developed by Mr Izunza was not conveyed to the Minister until well after the decision to issue a notice was made.
118 The applicants relied on Videto v Minister for Immigration & Ethnic Affairs (1985) 8 FCR 167, approved in Barrett v Minister for Immigration, Local Government & Ethnic Affairs (1989) 18 ALD 129 ("Barrett") at 132-3 and in Foster v Vanstone [1999] FCA 1447 at par 25 per Carr J and par 62 per Keifel J (special leave granted). These cases all involved the failure of departmental advisers to pass relevant information on to the appropriate decision-maker. They do not concern the accuracy of submissions from outside the relevant department, and they, therefore, have no application in the present cases. In any event, as should be clear by now, there was no "obvious omission or obscurity" in these cases comparable with those in the cited authorities.
WAS MEXICO UNDER A DUTY OF HONEST AND FAIR DISCLOSURE?
119 The applicants submitted in written submissions that:
[T]he unique and crucial role of the requesting party as information provider gives rise to a duty of disclosure both on the part of the Mexican officials and a duty to make inquiries on the part of Australian officers with whom they liaise.
I have already dealt with the applicants' case concerning a duty to inquire. What is the suggested source of an alleged duty of disclosure on Mexico's part? The applicants claimed that the position of the requested party (Australia)
pursuant to an extradition treaty is analogous with disclosure requirements in the making of ex parte applications for some orders or for the issue of various warrants. These may be quashed for want of sufficient disclosure.
They continued:
In both cases:(i) the request is usually made ex parte;
(ii) the liberty of the affected person may be affected;
(iii) the party who stands to benefit from the exercise of the discretion or power in their favour is also the sole repository of relevant information provided to the decision-maker;
(iv) the decision-maker has a duty to act judicially and/or reasonably.
In other words, at this point in their case, the applicants located a duty of disclosure on the part of the Mexico in the common law or, perhaps, in equity. They rely upon search warrant cases such as Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473, Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 ("Lego"), Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 ("Puglisi"), Malubel Pty Ltd v Elder (1998) 88 FCR 242 ("Malubel") and Carmody v MacKellar (1997) 76 FCR 115 ("Carmody"). They also relied on Bou-Simon v Attorney-General [2000] FCA 24, Barrett, and Foster v Vanstone [1999] FCA 1447.
120 There is no convincing analogy between the obligations of an applicant for ex parte curial relief or those of an applicant for a search warrant and the duties of Mexico in connection with the Attorney-General's exercise of power under s 16 of the Act. A similar analogy between the applications for ex parte discretionary relief in civil proceedings and a search warrant applications was specifically rejected in Lego. Beaumont and Whitlam JJ said at 555:
[I]n our view, the present question is one of statutory construction and is not to be resolved by reference to the principles of the general law. In particular, the practice in equitable jurisdictions in the grant of discretionary relief, ex parte, in private civil litigation does not, in our opinion, provide an appropriate analogy here. That is to say, in our opinion, the instant matter is to be decided in accordance with the terms, express and implied, of the provisions of s 10(1) of the Crimes Act, properly construed.
As regards the issue of a notice under s 16, the Act necessarily contemplates that the Minister will act on information provided by the requesting state that is contained in the extradition request. The Act also contemplates that, at this early stage in the extradition process, information may not be complete and it makes provision for further consideration of relevant matters at later stages in the process, including by a magistrate under s 19 and by the Attorney-General under s 22. Section 22(3)(f), in particular, confers a broad discretion on the Attorney-General to consider any matter that may at that stage of the process be relevant to the exercise of his or her discretion regarding the surrender of the person sought.
121 An attempt to draw an analogy between search warrant cases and extradition proceedings has been treated by the Full Court of this Court as unpersuasive. In Bou-Simon, the appellant appealed against the primary judge's refusal to intervene in extradition proceedings and to stay criminal proceedings, upon the basis that the affidavits relied on by Australia in seeking his extradition from France were misleading, made in bad faith, and an abuse of process. The primary judge distinguished the search warrant cases on the basis that, in extradition proceedings, the person whose extradition was sought is given an opportunity in the requested state to be heard on matters pertinent to his or her extradition. On appeal, the Full Court confirmed this approach, saying at par 35:
The appellant also sought to rely upon decisions of this Court concerning search warrants, such as Karina Fisheries Pty Limited v Mitson (1990) 29 FCR 473 and Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542. As the primary judge pointed out, however, search warrant cases involve quite different considerations in quite different circumstances to those with which the Court is concerned here. In any event, those cases do not advance the appellant's submission that there was no need here to establish bad faith.
The last observation is relevant in this case. Cases such as Carmody, Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149 and Lego establish that the common law does not impose a general duty of disclosure on an applicant for a search warrant. If there is any duty of disclosure, then it can arise only from the scheme of the legislation: Carmody at 148-149, Flanagan at 217, Lego at 555; see also Puglisi at 400. A warrant may, in accordance with ordinary principles of administrative law, be set aside if it is established that it has been obtained by fraud or misrepresentation.
122 Nor do the other cases to which the applicants refer provide any support for the proposition that Mexico was under a general duty of disclosure. I have already discussed Barrett and Foster v Vanstone. In Bou-Simon, the Full Court noted, at par 36, that the primary judge had concluded and the respondents did not challenge that if bad faith on the part of the Australian authorities in connection with an extradition process were established, then an Australian court might intervene, by ordering a stay of the prosecution in Australia in respect of which extradition was sought. The case says nothing about any duty of disclosure on the part of a requesting state, or the nature of the relief, if any, that might be obtained in Australia if bad faith on the part of the officials of a requesting state were shown. Indeed, the authorities to which the Full Court referred in formulating its proposition concerning abuse of process (R v Horseferry Road Magistrates' Court; ex parte Bennett [1994] 1 AC 42, R v Martin [1997] UKHL 56; [1998] AC 917 and R v Staines Magistrates' Court; ex parte Westfallen [1998] 4 All ER 210; [1998] Crim LR 414) were all concerned with the power of a court to stay criminal process or proceedings within the jurisdiction of the court, where there was an abuse of process, arising from fraud or bad faith on the part of authorities also within the jurisdiction. In Re Schmidt [1995] 1 AC 339 at 377-379, the House of Lords held that the principles set out in Bennett did not apply to bar an extradition to a foreign state, there being no inherent power in the courts to prevent an abuse of the process in a case of extradition to a foreign state: see also R v Governor of Belmarsh Prison, ex parte Gilligan [1999] 3 WLR 1244.
123 The history of extradition legislation in the United Kingdom makes it clear that, in relation to foreign countries, the courts have no jurisdiction to prevent an extradition other than that conferred by statute: R v Governor of Pentonville Prison, ex parte Sinclair [1991] 2 AC 64. Courts in the United Kingdom would not entertain allegations of bad faith in relation to requests brought under the Extradition Act 1870: see Re Arton (No 1) [1896] 1 QB 108 at 114-115 and Atkinson v United States of America Government [1971] AC 197. The position was otherwise in relation to requests under the Fugitive Offenders Act 1881: see Zacharia v Republic of Cyprus [1963] AC 634. R v Governor of Pentonville Prison, ex parte Narang [1978] AC 247 at 271 emphasised that the statutory powers conferred by the 1881 Act had been considerably restricted by the Fugitive Offenders Act 1967. The current position is set out in s 11(3)(c) of the Extradition Act 1989 which specifically requires the High Court to refuse extradition to some states where "because the accusation against [the wanted person] is not made in good faith in the interests of justice, it would, having regard to all the circumstances, be unjust or oppressive to return him". The Secretary of State has discretion to refuse extradition in similar terms (s 12(2)(a)). The burden of proof is on an applicant who, it has been said, has a "formidable task to discharge": see R v Bow Street Magistrates Court, ex parte Raccagni (unreported, Queen's Bench Division, 17 December 1998); R v Secretary of State, ex parte Launder [1997] 3 All ER 961 at 976-978. In this context, a duty of good faith is not the same as a duty of disclosure. In Re Osman [1992] Crim L R 741, a question arose as to whether the person whose extradition was sought should be informed about evidence that ought to have been known to Hong Kong, the requesting state, but upon which it did not rely. The High Court held that, whilst the statute imposed a duty on a requesting state to act in good faith, it was silent as to a duty of disclosure. The Court went on to hold that it would not be right to infer any general obligation on the requesting state to make the sort of disclosure described in the Attorney-General's Guidelines as to the information the prosecution should make available to the defence ((1982) 74 Cr App R 302). It was, therefore, not sufficient for the applicant to show that Hong Kong had access to material which it could have made available to him but did not do so, unless the failure to disclose the material was motivated by a lack of good faith.
124 In relation to New Zealand, there is an equivalent provision in s 34(2) of the Australian Extradition Act 1988 to that in the United Kingdom Extradition Act 1989. There are also regulations under the Australian Act that are similar in terms to s 11(3)(c) of the United Kingdom Act: see, e.g., Extradition (Commonwealth Countries) Regulations 1988, reg 7(1)(b). In Bates v McDonald (1985) 2 NSWLR 89, however, the New South Wales Court of Appeal emphasised that a person seeking to rely on s 27 of the previous Extradition (Commonwealth Countries) Act 1966 (the statutory predecessor to s 34(2) of the present Act) had heavy burden to discharge: cf Bannister v New Zealand [1999] FCR 362.
125 The position in Canada appears to be no less restrictive. Failure on the part of a requesting state to disclose potentially exculpatory information will not vitiate a prima facie case against the requested person: see United States v Turenne (1998) 133 ManR2d 131 (Man Ct QB). Whilst the Minister's decision to surrender a fugitive in Canada must have regard to the individual's rights under the Canadian Charter of Rights and Freedoms, Canadian courts have, nonetheless, consistently declined to entertain allegations of bad faith on the requesting country's part (even when reviewing objectively the circumstances that a fugitive may expect upon being surrendered). They have held that such matters are reserved for the executive's discretion: see Republic of Argentina v Mellino (1987) 40 DLR 4th 74 (Sup Ct Can) at 91 and Pacificador v Canada (1999) 41 WCB2d 23 (Ont Ct (Gen Div)) at 69-72.
126 In the United States, there is no judicially reviewable duty of good faith or disclosure upon foreign requesting states in extradition proceedings. The usual practice in the United States, subject to the terms of any applicable treaty, is to determine whether probable cause to believe that the requested person committed an extradition offence exists. In the context of these proceedings, United States prosecutors are under a duty to disclose any exculpatory evidence in their possession to the person whose extradition is sought: see Demjanjuk v Petrovsky 10 F3d 338 (6th Cir 1993), cert den 513 US 914 (1994). But this duty has been held not to extend to foreign states: In re Drayer 190 F3d 410 (6th Cir 1999), cert den 2000 U.S. LEXIS 1347. Faced with a discovery request for allegedly exculpatory information in the sole possession of Canada, the requesting state, the Court in Drayer pointed out that the probable cause hearing is not "a forum in which to established the guilt or innocence of the accused; rather, the sole inquiry is into probable cause." Canada's refusal to disclose this information did not vitiate the extradition request.
127 The principles applicable in the United States are further illustrated by In re Singh 123 FRD 140 (DNJ 1988), which concerned a request made by India for the extradition of two Sikh nationalists accused of acts of terrorism. Responding to allegations of bad faith on India's part, the Court stated, at 164 n 20, that "The Government of India does not stand before the Court with unclean hands. The Court has made no finding that the Government of India is acting in bad faith in seeking the extradition of defendants Singh and Gill, nor does the Court intend to usurp the role of the Secretary of State by permitting defendants to make any such inquiry." (See also related proceedings, In re Singh 123 FRD 127 (DNJ 1988)). The certificate of extradition was granted. It was then discovered that India had failed to disclose a judgment made by an Indian court that invalidated a confession obtained through impermissible means. The confession had been a major piece of evidence submitted to support the extradition request. The applicants' petition for a writ of habeas corpus was granted in Gill v Imundi 747 FSupp 1048 (SDNY 1990), on the grounds that the factual basis for the finding of probable cause had been vitiated.
128 This is to be contrasted with a similar case, In re Mainero 990 FSupp 1208 (SDCal 1997), where the fact that Mexico had not disclosed the fact that several confessions offered in support of an extradition request had been recanted did not negate the probable cause finding.
129 As these cases show, a United States court will not consider bad faith or non-disclosure per se as grounds for refusing extradition, though non-disclosure may have the consequence of rendering the request insufficient if the probable cause requirement is not met. Discretion to refuse extradition on the basis of bad faith per se has been held to rest solely within the executive branch: Quinn v Robinson 783 F2d 776, 789-90 (9th Cir), cert den 479 US 882 (1986).
Obligations under the Treaty and standing to challenge breaches
130 The applicants sought to derive a duty of disclosure on Mexico's part from the Treaty. In closing address, counsel for the applicant submitted:
The significant extension ... that we rely on in terms of this application goes to the notion of the contractual relationship between Australia and Mexico and it goes to the notion that extradition treaties, being international instruments of agreement, ... carry with them certain obligations....
[W]hilst the treaties bind the two countries, they bind them with respect to the way the two countries conduct themselves vis a vis individuals who are subject to their protection. Since it is the obligation of each country to protect the liberty of those subject to its protection, those peoples whose liberty is jeopardised have the right to bring to account authorities which jeopardise it unlawfully.
At international law, there is, of course, an obligation upon parties to a treaty to perform the treaty in good faith: Vienna Convention, art 26. A material breach of a bilateral treaty by one party entitles the other to invoke the breach as a ground for termination or suspension: Vienna Convention, art 60.1. (There is uncertainty about the precise circumstances in which such a right of unilateral abrogation may be exercised: Brownlie, Principles of Public International Law (5th ed, 1998) at 622.) Aside from questions of termination or suspension, negotiation at the diplomatic level may produce an apology or an assurance that the offending conduct will not recur. If there has been material loss, then the question of reparation may arise. Under international law, therefore, Australia and Mexico are obliged to perform the Treaty in good faith.
131 So far as Mexico is concerned, the Treaty determines the scope of its obligations. As we have seen, pursuant to the Treaty, Australia and Mexico agree, amongst other things, "to extradite to each other, in accordance with the provisions of [the] Treaty, persons against whom criminal proceedings have been initiated" (art 1). Performance of the agreement is initiated by a written request for extradition through the diplomatic channel (art 15.1). Subject to the authentication requirements set out in art 15.2, the Treaty stipulates, in art 16, the documents that the requesting state is obliged to provide with the request. If those documents are provided to the requested state, that state would have before it those material facts upon which the extradition request is based. If there were any further obligation upon the requesting state to provide additional details or documents, that would arise from art 17, which makes provision for the requested state to inform the requesting state "of the omissions or defects which may be corrected" before the request is submitted to a judicial authority. Far from supporting the applicants' claim that Mexico is under a general duty of disclosure, art 16 and 17 indicate that it is not. They make specific and comprehensive provision for the information that Mexico is obliged to provide to Australia.
132 If Mexico were to commit a material breach of the Treaty, then Australia might take such steps as are permitted by international law. Under international law, individuals, such as the applicants ordinarily have no standing to raise a breach of a treaty unless the treaty accords such standing, although international law may, in some circumstances, permit an individual to raise human rights issues: see, e.g., Brownlie, op cit, 558-559; Dugard and Van den Wyngaert, "Note: Reconciling Extradition with Human Rights" (1998) 92 AJIL 187 at 188-9; Rebane, "Note: Extradition and Individual Rights: Need for an International Criminal Court to safeguard individual rights" (1996) 19 Fordham Int'l LJ 1636 at 1642; Levitt, "Note: International Extradition, the Principle of Specialty, and Effective Treaty Enforcement" (1992) 76 Minn L Rev 1017 at 1020-1; International Law Association, Report of the Sixty-Seventh Conference (1996) at 216; International Law Association, Report of the Sixty-Sixth Conference (1994) at 145. In regard to the operation of municipal extradition law, the Committee on Extradition and Human Rights recommended, in its Second Report, that fugitives should have a right to obtain copies of documentary evidence favourable to them from the authorities of the requesting state and that these might assist the tribunal of the requested state in determining whether a prima facie case exists (assuming that such a question arises under municipal law): see International Law Association, Report of the Sixty-Seventh Conference (1996) at 229.
133 In at least one foreign jurisdiction, the municipal courts have accorded standing to individuals to assert a breach of a specialty provision in an extradition treaty. Thus, in the United States (where a ratified treaty is regarded as incorporated into domestic law, unless otherwise specified) some federal circuit courts of appeal have permitted criminal defendants to raise specialty as a defence to prosecution, even if the extradition country has not objected, so long as the extradition country has not explicitly consented to the prosecution. See, e.g., United States v Thirion 813 F2d 146 (8th Cir 1987); United States v Fowlie 24 F3d 1059 (9th Cir 1994); and United States v Puentes 50 F3d 1567 (11th Cir 1995), cert den 516 US 933 (1995). Other circuits have construed the silence of the extraditing country as tacit consent to prosecution (e.g., Fiocconi v Attorney General 462 F2d 475 (2nd Cir 1972), cert den 409 US 1059 (1972)) or have rejected individual standing altogether, as in Matta-Ballesteros v Henman 896 F2d 255 (7th Cir 1990), cert den 498 US 878 (1990). The complexities and contradictions in the American jurisprudence are explored in Wempen, "Note: United States v Puentes: Re-examining Extradition Law and the Speciality Doctrine" (1995) 1 J Intl Legal Stud 151 and Wong, "Note: The Extra in Extradition: The Impact of State v Pang on Extraditee Standing and Implicit Waiver" (1998) 24 J Legis 111. It seems fairly clear, however, that an anticipated violation of specialty may not be raised in a United States court to resist extradition to a foreign country: see Gallina v Fraser 177 FSupp 856 (DConn 1959), aff 278 F2d 77 (2nd Cir 1960), cert den 364 US 851 (1960), reh den 364 US 906 (1960), discussed by Piragoff and Kran, "The Impact of Human Rights Principles on Extradition from Canada and the United States: The Role of National Courts" (1992) 3 Criminal Law Forum 225 at 256.
134 Be that as it may, the position in Australia is that the applicants have only such rights to contest a request for extradition as are given them by Australian law. By virtue of the Act, the Judiciary Act 1903 (Cth) and the Federal Court of Australia Act 1976 (Cth), the applicants enjoy (and are exercising) rights of judicial review of the Minister's decision to issue a notice under s 16(1) of the Act. Because an extradition request is a pre-requisite to an exercise of power under s 16(1), it is open to the applicants to challenge the validity of that request. This is, so it seems to me, the only basis upon which they can raise the issue of non-disclosure. (The issue of bad faith raises separate considerations.)
Were the requests valid?
135 The applicants submit that:
On the evidence, the Court is able to and ought to find that:(i) At the time the requests were made, the requesting party had knowledge of the Amparo stays granted in Mexico and of their effect upon the executability of the warrants. The existence of the stays was clearly a matter which fell within the disclosure provisions of the Treaty in Article 16;
(ii) The Mexican authorities deliberately or recklessly withheld critical material facts from the Australian authorities in making the 1st Cabal Request and the Pasini Request and thereby misled the Minister;
(iii) With respect to the 2nd Cabal Request, the Mexican authorities deliberately misrepresented the effect of the Amparo stays then in existence and thereby misled the Minister;
(iv) With respect to the warrant for the `money-laundering', the Mexican authorities deliberately or recklessly misrepresented both facts and law with respect to prescription and thereby misled the Minister.
For the reasons already given, art 16.1(b) did not require Mexico to send a copy of any amparo stay with its extradition requests. Further, for the reasons already given, it has not been shown that Mexico failed to make an adequate statement of the provisions under its law relating to prescription, as required by art 16.1(c). The time at which the adequacy of the request is to be considered is the time when the Minister issues the notices, and substantial compliance with the Treaty is sufficient: Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 401-403. The applicants' claims as to non-disclosure and as to the invalidity of the extradition requests must fail.
Does the evidence show bad faith on Mexico's part?
136 I reject the submission that the evidence before the Court permits an inference of bad faith to be drawn against Mexico (upon the doubtful assumption that it would be open to this Court to draw such inference if it were open). The applicants' case on bad faith depended on the propositions that at the time the Minister made each decision to issue a s 16 notice: (a) Mexico knew (or ought to have known) that the amparo stays immediately operated to prevent execution upon a warrant and Mexico deliberately failed to disclose that fact to Australia; (b) Mexico knew (or ought to have known) that an amparo stay would affect the formation of the Minister's opinion under s 16(2)(a) or her exercise of discretion under s 16(1) of the Act; and (c) Mexico knew (or ought to have known) that prosecution for money-laundering was prescribed under Mexican law or that there was a substantial body of legal opinion to that effect. None of these propositions are made out on the evidence.
137 I accept, as the applicants contended, that Mexican officials knew of each provisional amparo stay shortly after it was granted. I also accept that Mexico did not refer to the stay of 18 December 1998, granted on Cabal's application, until 18 January 1999 or thereabouts. This was, of course, some days after the relevant s 16 notice was issued (on 7 January 1999). Further, I accept that, though Mexico and Australia knew of the stay granted at Cabal's request in December 1998, Mexico did not refer Australia to the stay of 20 January 1999, granted on Pasini's application, prior to the issue of the s 16 notice on 21 January 1999. I accept that Mexico, through its representatives in Australia, was in relatively close liaison at all relevant times with officers of the Department, with a view to meeting the requirements established under Australian law for the extradition of Cabal and Pasini. That is shown in contemporaneous correspondence and file notes and in an affidavit sworn by an officer of the Department on 4 August 1999. I accept too that, in its letter of 10 March 1999, Mexico maintained views about the effect of the amparo stays and the operation of the Mexican law of prescription with which the applicants do not agree.
138 The applicants submitted that Mexico's statement in the first Cabal request that the warrants are "still" in force was indicative of a lack of candour on its part. I am unable to accept this: it is to read too much into the choice of words of a foreign state (or the translator of the request). They also submitted that the declarations made in June 1999 by district judges in criminal matters in the Federal District (that certain warrants for the arrest of Cabal were in existence or current) were "sought for a colourable purpose" (by which I understand them to mean an illegitimate purpose). Whilst I accept that the declarations did not alter the status of the warrants (and the declarations probably contain an erroneous reference), I am unable to infer that they were sought for an improper purpose. I accept Mr Acosta's evidence that declarations of this kind had been sought in another extradition case and that the declarations operated as "a sort of procedural update in the case". Bearing in mind Mexico's view of the operation of the stay granted on 18 December 1998, it was scarcely surprising that it did not refer to that stay in making its first extradition request for Cabal. There was also the fact that an application for a stay on extradition had been refused in Mexico at the same time as the stay on the warrants was granted. I do not accept that there was a continuing pattern of material non-disclosure. I am unable to draw any negative inference from the absence of a reference to the 20 January stay in Mexico's request for Pasini's extradition, bearing in mind the matters already mentioned, that the stay was ineffective, and that it cannot be inferred that it was granted before Mexico made its request. Moreover, I cannot accept that Mexico's statement of the law with respect to the amparo stays or prescription was made otherwise than in good faith. Mexico consistently espoused the view that the efficacy of the stays depended upon the applicants' return to Mexico. There is nothing in the evidence before me that indicates that its officials did not genuinely hold that opinion. There may have been (and probably were) some errors in Mexico's statements of the relevant law. There is, however, no evidence that these were made intentionally, with a view to misleading Australia, or recklessly, not caring whether or not what was said was true. Further, for the reasons already given, I am unable to find that the money-laundering offence is prescribed under Mexican law, or that, on 30 March 1999, when a second s 16 notice issued in respect of Cabal, there was a substantial body of legal opinion to that effect. As I have indicated, I do not regard the statements made by Mexico in its letter of 10 March 1999 as anything other than a statement of genuinely held opinion as to the operation of Mexican law regarding amparo stays and prescription. It follows that I cannot infer bad faith on the part of Mexico in making its requests for extradition.
139 This is not a case where the applicants are assisted by the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. The applicants sought to rely on the Minister's failure to call the Mexican official (Mr de la Guardia) who was principally responsible at the Mexican Embassy for liaising with Australia for the applicants' extradition. They also referred to the absence of a Spanish version of the Treaty. (I doubt that the latter would have been of assistance in any event.) Although the Minister did not explain why Mr de la Guardia was not called, she maintained an objection, on the ground of relevance, to a great deal of the evidence adduced by the applicants. It is to be borne in mind that the alleged missing witness was not an Australian official but an official of a foreign state. Moreover, the inference that an application of Jones v Dunkel would support is incapable of making good what is, in my view, a complete want of evidence that Mexico proceeded in bad faith. Still less is this a case where, as the applicants contended, principles of the kind outlined in Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217 might apply.
140 It is a serious matter to invite a court to infer bad faith on the part of a sovereign state. There is, in my view, no basis upon which I can draw such an inference in this case.
SUMMARY
141 For the reasons given, I reject the applicants' claims that the Minister erred in law in forming the opinion that, in each instance, the applicant was, at the relevant time, an extraditable person in relation to Mexico, or that she erred in law in exercising the discretion conferred by s 16(1) of the Act. I also reject the claim that, in each instance, the extradition request made by Mexico to Australia was invalid. There was, as I have said, no duty on Mexico's part to inform Australia about the amparo stays. Nor did Mexico breach any duty of disclosure in relation to the Mexican law of prescription.
142 As I have just said, the Minister took formal objection to much of the evidence led by the applicants, on the ground of relevance. There was much force in that objection, especially in relation to the more conventional bases of review relied on by the applicants. Some evidence as to the operation of the amparo stays and the Mexican law of prescription fell to be considered in relation to the applicants' claims that Mexico's extradition requests were invalid and in connection with their non-disclosure claim. Rather more evidence of that kind fell to be considered in relation to the claim that Mexico had acted in bad faith. It should be borne in mind that the Minister did not press that it was not open to the Court to consider the bad faith allegation, although she referred to the possibility that this might be the case. Whilst much of the evidence has turned out not to assist the applicants, it would, I think, be difficult to maintain the position that all the evidence to which the Minister took objection was necessarily irrelevant at the time it was led by the applicants. There is not much to be gained now in seeking to specify what was and what was not irrelevant and inadmissible.
143 The Minister further submitted that an amendment to the Code of Criminal Procedure that came into effect in Mexico on 1 October 1999 had turned the offences in the tenth, eleventh and thirteenth warrants referred to in the first extradition request for Cabal into serious offences, with the result that the stays on those warrants would not protect Cabal from immediate arrest on his return to Mexico. Evidence was given by Mr Acosta in support of that submission. Evidence to the contrary effect was given by Messrs Zinser and del Toro. There is no need to resolve the conflict. Whatever the case, the amendment has no bearing on the situation prevailing at the time of the issue of the s 16 notices.
144 The effect of the amendment may have been relevant had it been necessary to consider whether declarations should be made that the applicants are not now extraditable persons. Given the view I take of the proper construction of s 6(a)(i) and s 16, however, and the position I have reached with respect to the evidence on the Mexican law of prescription, there can be no basis for making any of the declarations sought by the applicants (upon the doubtful assumption that it would be open to me to make them in any event).
145 For all the reasons given, I would dismiss these three applications with costs.
I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. |
Associate:
Dated: 27 March 2000
V 120 of 1999:
Counsel for the Applicant: |
Mr R Richter QC with Ms R Doyle |
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Solicitor for the Applicant: |
Phillips Fox |
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Counsel for the First Respondent: |
Dr C N Jessup QC with Mr P J Hanks QC and Mr G Livermore |
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Solicitor for the First Respondent: |
Australian Government Solicitor |
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Counsel for the Second Respondent: |
No appearance |
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Solicitor for the Second Respondent: |
No appearance |
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Counsel for the Third Respondent: |
No appearance |
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Solicitor for the Third Respondent: |
No appearance |
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Counsel for the Fourth Respondent: |
No appearance |
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Solicitor for the Fourth Respondent: |
No appearance |
V 121 of 1999:
Counsel for the Applicant: |
Mr R Richter QC with Ms R Doyle |
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Solicitor for the Applicant: |
Phillips Fox |
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Counsel for the First Respondent: |
Dr C N Jessup QC with Mr P J Hanks QC and Mr G Livermore |
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Solicitor for the First Respondent: |
Australian Government Solicitor |
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Counsel for the Second Respondent: |
No appearance |
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Solicitor for the Second Respondent: |
No appearance |
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Counsel for the Third Respondent: |
No appearance |
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Solicitor for the Third Respondent: |
No appearance |
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Counsel for the Fourth Respondent: |
No appearance |
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Solicitor for the Fourth Respondent: |
No appearance |
V 222 of 1999:
Counsel for the Applicant: |
Mr R Richter QC with Ms R Doyle |
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Solicitor for the Applicant: |
Phillips Fox |
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Counsel for the First Respondent: |
Dr C N Jessup QC with Mr P J Hanks QC and Mr G Livermore |
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Solicitor for the First Respondent: |
Australian Government Solicitor |
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Counsel for the Second Respondent: |
No appearance |
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Solicitor for the Second Respondent: |
No appearance |
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Counsel for the Third Respondent: |
No appearance |
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Solicitor for the Third Respondent: |
No appearance |
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Counsel for the Fourth Respondent: |
No appearance |
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Solicitor for the Fourth Respondent: |
No appearance |
Dates of Hearing: |
10 February 2000 and 14 February 2000 to 25 February 2000 |
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Date of Judgment: |
27 March 2000 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2000/359.html