Cabal v United Mexican States [2001] FCA 97 (21 February 2001)

Last Updated: 8 March 2001

FEDERAL COURT OF AUSTRALIA

Cabal v United Mexican States [2001] FCA 97

EXTRADITION - application for leave to appeal from refusal of bail pending determination of appeal to Full Court against dismissal by single judge of application to review magistrate's order - successive unsuccessful applications - "special circumstances" - whether changed circumstances necessary - whether comments of judges and others can be "special circumstances" - risk of absconding

Extradition Act 1988 (Cth) ss 21(6)(f)(iv), 53

Federal Court of Australia Act 1976 (Cth) s 24(1A)

Cabal v United Mexican States [2000] FCA 7 - considered

Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 - mentioned

Wu v Attorney-General (Cth) (1997) 79 FCR 303 - mentioned

Bertran v Minister for Justice [1999] FCA 1117; (1999) 165 ALR 155 - mentioned

von Arnim v Federal Republic of Germany [1994] FCA 1747 - mentioned

Holt v Hogan (No 1) (1993) 44 FCR 572 - mentioned

Cabal v McDonnell [1999] VSC 221 - mentioned

Cabal v United Mexican States (No 2) [2000] FCA 295 - considered

Cabal v United Mexican States (No 5) [2000] FCA 525 - considered

Cabal v United Mexican States (No 3) [2000] FCA 1204 - mentioned

Cabal v Secretary v Department of Justice (Victoria) [2000] FCA 949 - considered

Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 1227 - considered

CARLOS CABAL PENICHE v UNITED MEXICAN STATES

NO V 1 OF 2001

HEEREY, MARSHALL and MERKEL JJ

21 FEBRUARY 2001

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1 OF 2001

BETWEEN:	CARLOS CABAL PENICHE APPLICANT
AND:	UNITED MEXICAN STATES FIRST RESPONDENT LISA HANNAN M SECOND RESPONDENT
JUDGE:	HEEREY, MARSHALL AND MERKEL JJ
DATE OF ORDER:	21 FEBRUARY 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application for leave to appeal is dismissed.

2. The applicant pay the respondents' costs to be taxed, 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 1 OF 2001

BETWEEN:	CARLOS CABAL PENICHE APPLICANT
AND:	UNITED MEXICAN STATES FIRST RESPONDENT LISA HANNAN M SECOND RESPONDENT
JUDGE:	HEEREY, MARSHALL AND MERKEL JJ
DATE:	21 FEBRUARY 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

1 The applicant Carlos Cabal Peniche (Mr Cabal) seeks leave to appeal from a decision of Gray J made on 20 December 2000 (Cabal v United Mexican States [2000] FCA 1892) dismissing his application to be admitted to bail pursuant to s 21(6)(f)(iv) of the Extradition Act 1988 (Cth) (the Act) which provides as follows:

"(6) Where the person or the extradition country:

(a) applies under subsection (1) for a review of an order [of a magistrate for surrender under s 19(9)];

(b) appeals under subsection (3) against an order made on that review; or

(c) appeals to the High Court against an order made on that appeal;

the following provisions have effect:

(d) ...

(e) ...

(f) if:

(i) because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has not been released; or

(ii) ...

the court to which the application or appeal is made may:

(iii) order that the person be kept in such custody as the court directs; or

(iv) if there are special circumstances justifying such a course, order the release on bail of the person on such terms and conditions as the court thinks fit;

until the review has been conducted or the appeal has been heard;

(g) ..."

2 Bail was sought by the applicant and one Marco Pasini Bertran (Mr Pasini) pending the determination by a Full Court of an appeal from French J who had dismissed an application for review of an order made by a magistrate under s 19(9) of the Act. Mr Pasini was granted bail by Gray J and thus is not a party to the present application. However for the purposes of the narrative it will be convenient to refer to Mr Cabal and Mr Pasini collectively as "the applicants".

Magistrate's surrender order 17 December 1999

3 On 11 November 1998 pursuant to a provisional warrant issued under the Act the applicants were arrested, taken before a magistrate and remanded in custody. On 31 December 1998 the first respondent the United Mexican States (Mexico) made a formal request for the extradition of Mr Cabal in respect of a number of alleged offences relating to the operation of a Mexican bank called Banco Union and other offences involving fraud, taxation evasion and money laundering. Similar proceedings were taken in relation to Mr Pasini.

4 On 27 July 1999 a hearing commenced before Lisa Hannan M. The delay was due largely to requests for preparation time by the applicants, proceedings taken by them to challenge the validity of notice by the Minister for Justice and Customs pursuant to s 16 of the Act and adjournments to enable the applicants and their counsel to prepare for the hearing. After a hearing lasting 69 days the magistrate on 17 December 1999 determined pursuant to s 19(9) that the applicants were eligible for surrender to Mexico. Her Worship accordingly signed warrants pursuant to s 19(9)(a). Each warrant ordered the committal of the relevant applicant to the Melbourne Assessment Prison or Port Phillip Prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under s 22(5) of the Act. Pursuant to those warrants Mr Cabal has been held in custody ever since.

First bail decision of Goldberg J, 4 January 2000

5 The applicants applied under s 21(1) of the Act for a review by the Federal Court of the magistrate's order. They also applied for release on bail pending the hearing and determination of the review. On 4 January 2000 Goldberg J dismissed the bail application: Cabal v United Mexican States [2000] FCA 7. His Honour discussed a number of authorities, in particular Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70, Wu v Attorney-General (Cth) (1997) 79 FCR 303, Bertran v Minister for Justice [1999] FCA 1117; (1999) 165 ALR 155, von Arnim v Federal Republic of Germany [1994] FCA 1747 and Holt v Hogan (No 1) (1993) 44 FCR 572, and concluded (at par 12) that the requirement of "special circumstances" meant that a judge had to decide

"... whether circumstances relied upon are different from the circumstances which ordinarily apply where a person is in custody pending extradition proceedings and which by their nature warrant a more favourable view in relation to the grant of bail."

6 In the course of a detailed judgment, Goldberg J dealt with the conditions in which the applicants were held in prison. They were held at the Melbourne Custody Centre for a short time and then transferred to the Melbourne Assessment Prison where they remained until 4 January 1999 when they were transferred to Port Phillip Prison at Laverton. That prison is divided into a number of units for different categories of prisoners. There is no separate area to house prisoners on remand. The applicants were placed in the transit unit for some three weeks and then moved into the Scarborough South unit with mainstream prisoners. In August 1999 they were transferred to a unit within Port Phillip Prison called Sirius East. His Honour said (at pars 57-58):

"57. Mr Shane Kelly, the head of operations at Port Phillip Prison and an experienced prison officer, said that the applicants were moved into protective custody in the Sirius East unit because information was received which indicated that their safety would be in jeopardy if they were left in Scarborough South. Mr Kelly's decision was supported by the Correctional Services Commissioner for Victoria. Within the Victorian prison system, there is no viable alternative to detaining the applicants other than in Sirius East. Sirius East is used as a protective unit to house prisoners whose safety may be in jeopardy if they mix within the mainstream population. At the present time there are twenty-two prisoners in Sirius East. Sirius East has less facilities available to the prisoners than are available in Scarborough South. The prisoners in Sirius East are not able to leave the unit unless they have a specific reason for doing so such as a professional visit or a medical visit. Prisoners in the Scarborough Unit have access to the prison library and certain work activities. Whilst the applicants were placed in the Scarborough Unit Mr Pasini worked in the prison library.

58. The conditions in which the applicants are kept in the Sirius East unit is one of the factors relied upon by the applicants as constituting special circumstances or a component of special circumstances so it is necessary to understand the evidence in relation to the conditions in that unit. There is no doubt that the conditions are very difficult and are harsher than the area where mainstream prisoners are kept. Evidence was given about these conditions by Mr Kelly and, in particular, by another prisoner presently housed in the Sirius East unit. The applicants also gave evidence as to the difficulties they were encountering in the Sirius East unit. Notwithstanding the vehemence with which the other prisoner criticised the conditions in the Sirius East unit there is little conflict in the evidence as to the nature and extent of those conditions. As I have noted earlier, Sirius East is a specialist unit which predominantly holds prisoners who are in need of protection from other prisoners. Such prisoners are Crown witnesses who may be subject to threats, prisoners who are at risk because of the nature of their offences such as sex offenders against children, prisoners who have been serving policemen, prisoners who have been attacked by other prisoners and prisoners who have been subjected to extortion because they are perceived to have access to money. Notwithstanding the nature of the occupants Mr Kelly said that Sirius East is a quiet and safe area when compared to the mainstream section of the prison and that there are very few incidents of violence in it."

7 His Honour then went on to review the evidence as to the physical conditions and daily routines in Sirius East. His Honour noted that a number of the prisoners at Sirius East had medical conditions including Aids and Hepatitis C. His Honour then considered the conditions in which the applicants were transported to and from Port Phillip Prison and in particular that they were strip searched and cavity searched every time they left Port Phillip and after personal and professional visits. In particular, Mr Cabal said that he was handcuffed with solid heavy shackles. His Honour found it "quite disturbing" that the applicants were being treated in that way. His Honour also criticised the way the applicants were treated in the Melbourne Custody Centre after the magistrate handed her decision down on 17 December 1999. Their access to their lawyers was interrupted and inhibited in a manner not sought to be explained or sought to be justified. However his Honour said (at par 69) that he was not satisfied that the incarceration of the applicants in Sirius East in which they were transported to and from Port Phillip Prison, either singly or taken cumulatively with other matters relied on, amounted to "special circumstances". But the longer they were kept in Sirius East and transported in shackles the "more pressing" was their claim that special circumstances existed which warranted their release on bail. His Honour noted Australia's obligation to detain persons in the extradition process under conditions which were not primitive, degrading, inhuman or destructive of physical or psychological well-being. Inability to provide adequate appropriate detention "may in an appropriate case" constitute a special circumstance warranting release on bail. His Honour stated that he would reserve liberty to the applicants to renew their application if the conditions in which they were held deteriorate or if the manner in which they were transported continued to occur.

8 His Honour then referred to evidence concerning a company called Aussec Consultancy Group Pty Ltd which proposed a system to monitor the confinement of Mr Cabal to his home should he be released on bail. This would include a transmitting bracelet and video surveillance to which police could have access.

9 His Honour then summarised the matters relied on as constituting "special circumstances", both individually and as a whole, that is to say the length of time spent in custody, the conditions of their custody and during transport to and from the prison, the psychological affects of incarceration both on the applicants and on their families and the effect of incarceration on their ability to defend the extradition proceedings.

10 His Honour found that the length of time they have been in custody was not such a special circumstance as to warrant bail. Although community standards would suggest that people should not be detained in prison for lengthy periods without being brought to trial or extradited, those standards would also have regard to the reasons why the persons had been kept in prison for a long time, what had occurred during that period and the nature of the offences in respect of which they have been charged and any prior history of false identities and evading capture.

11 As to the conditions under which they were held in custody, his Honour noted that it was inevitable that if, as part of the extradition process, the applicants were to be incarcerated they would be incarcerated in conditions which apply to persons whose liberty is curtailed by law. His Honour did not consider that the conditions were so much out of the ordinary as to justify the conclusion that they were special circumstances. It was not suggested that the applicants were transferred to the high security unit for any reason other than their personal security and protection. His Honour noted the evidence of a prison officer that Sirius East Unit was "a quiet and safe area where there are very few incidents of violence compared to the mainstream section of the prison". His Honour concluded (par 85):

"Put shortly, regrettable as it may be, the degree of deprivation of facilities and lifestyle suffered by the applicants is, relatively speaking, within the normal boundaries of what occurs in a prison environment."

12 As to the shackling, his Honour noted that a challenge to its lawfulness in the Supreme Court of Victoria had been dismissed: Cabal v McDonnell [1999] VSC 221 (O'Bryan J, 18 June 1999). His Honour did not question the need for shackling, or the decision to oppose it, but had "grave concerns" as to the manner in which it was implemented.

13 His Honour considered a number of matters raised as to the risk of the applicants absconding. The applicants had shown the capacity and ability to move quickly and easily from one country to another and a propensity to obtain travel documentation and identification cards in assumed names. Mr Cabal had access to substantial overseas funds, as confirmed by bank statements seized from his house. In the course of the proceeding before the magistrate Mr Cabal said that on 30 August 1994 he organised a personal line of credit from a bank in Switzerland for $110 million. His proposed home security system would cost in excess of $600,000 per annum. His Honour found that even if there were special circumstances warranting or justifying the release of the applicants on bail he would not as an exercise of discretion have been disposed to have granted bail. There was a "real risk" of them absconding on bail. The risk of absconding was heightened by the fact that a magistrate had now determined they are eligible for surrender to Mexico. His Honour did not consider the proposed home surveillance system an adequate substitute for custody. However, as already noted, his Honour reserved liberty to the applicants to renew their application for bail if the conditions under which they were kept in Port Phillip deteriorated or if the conditions under which they were transported and detained while outside the prison whether in shackles or otherwise were such as to warrant further consideration.

14 The applicants did not seek leave to appeal against this decision.

Ruling of Goldberg J on second bail application, 15 March 2000

15 Pursuant to leave reserved, the applicants made a further application for bail. On 15 March 2000 Goldberg J gave a ruling as to the conduct of that application: Cabal v United Mexican States (No 2) [2000] FCA 295. His Honour held that a further application for bail after an application had been refused required the existence of special circumstances which did not exist at the time the earlier application was made. His Honour ruled that he would not allow into evidence for the purpose of the application for bail affidavits which were either used or prepared for use at the earlier bail hearing (i.e. prior to 23 December 1999) evidence relating to

* the applicants' personal business circumstances and activities prior to the earlier bail hearing

* refutation of Mr Kelly's evidence that Sirius East was a safe environment and that the applicants were transferred there for their own protection

* refutation of the evidence that the decision to place the applicants on a high security list based on the reason that Mr Cabal had offered a prisoner money to assist him to escape

* the applicants' state of mind when they determined to remain outside Mexico and the reason they sought to avoid arrest by the Mexican authorities

* the contention that the applicants' legal status in Mexico is now different from that in 1994

* Australia's obligations under the International Covenant on Civil and Political Rights to persons incarcerated for the purpose of extradition proceedings

* the condition under which the applicants were kept in custody prior to the earlier bail hearing

* the submission that Mr Cabal was not at relevant times a director or employee of Banco Union

16 The applicants did not seek leave to appeal against this decision.

Second bail decision of Goldberg J, 20 April 2000

17 The hearing then proceeded. On 20 April 2000 Goldberg J dismissed the second application for bail: Cabal v United Mexican States (No 5) [2000] FCA 525. The circumstances relied on with which his Honour dealt, being matters arising since 23 December 1999, were allegations of

* multiple, unnecessary and invasive cavity searches

* painful shackling and manacling

* transport in a van without windows and with inside walls smeared with excrement

* being placed with prisoners seriously ill with communicable diseases

* interruption of communications with family and legal advisers

* members of their families exposed to unpleasant scenes at the prison

* petty implementation of rules denying basic human exchanges with wives and families during visits

* unexplained and discriminatory cancellation of medical examinations

* being confined in close quarters with prisoners introduced in Sirius East convicted of murder, armed robbery and rape, two persons having been involved as aggressors in a male rape in Sirius West.

18 His Honour emphasised (at par 10) that he was not considering afresh matters which were canvassed before him on the earlier application or matters which had arisen before then which could have been the subject of submissions. His Honour carefully reviewed the evidence. It is not necessary for present purposes to consider these matters in detail. Some were matters which disturbed and distressed Mr Cabal's children during a visit, for example an altercation between staff and an unrelated prisoner with the staff threatening to close down the prison and the refusal of staff to allow Mr Cabal's daughter to enter the prison wearing a metal hairclip. While accepting the Cabal family's version of these incidents his Honour felt that they were incidents which occurred in the course of the general running of a prison and did not constitute a relevant "special circumstance".

19 His Honour dealt with what were said to be multiple, unnecessary and invasive cavity searches. His Honour found that after each visit to the applicants, whether social or professional, the applicants were strip searched and various parts of their bodies were inspected. No intrusion was made into cavities, there was only inspection. His Honour found that Port Phillip Prison is a high security prison and every inmate is strip searched and undergoes a cavity inspection after every visit, whether personal or professional. The applicants were not the subject of discrimination in this respect. While his Honour accepted that they found these procedures embarrassing and humiliating, that factor did not constitute a relevant "special circumstance". In any event, the nature of the strip searching procedure had not changed from that which occurred prior to the earlier application.

20 His Honour dealt with a number of matters, both individual incidents and practices, such as weekly searching of cells and the fact that the applicants' living conditions and general treatment were identical to the treatment all other prisoners detained in Sirius East. His Honour held that the fact that the applicants were subject to the same prison regime as the other prisoners detained in Sirius East, even though not convicted of any offence, was not a relevant "special circumstance" as that was the general position one would expect to occur when a person is in custody pending extradition proceedings. His Honour noted that counsel for Mexico referred to s 53 of the Act which provided:

"The laws of a State or Territory with respect to:

(a) the conditions of imprisonment of persons imprisoned in that State or Territory to await trial for offences against the law of that State or Territory;

(b) the treatment of such persons during imprisonment; and

(c) the transfer of such persons from prison to prison;

apply, so far as they are capable of application, in relation to persons who have been committed to prison in that State or Territory under this Act."

21 Counsel for Mexico had relied on this provision and the fact that in Victoria now there are no separate facilities for remand prisoners. His Honour did not think that s 53 was of any assistance. In substance the matters of which the applicants complained were not matters dictated or required by statutory provisions but rather matters which arose at an administrative level within the prison as to the manner in which security and prison discipline are to be maintained. As a matter of principle, the fact that the law of a State may impose some condition as to the imprisonment of persons does not mean that in an appropriate case and in relevant circumstances it may not become a relevant "special circumstance".

22 His Honour discussed in considerable detail complaints about access to telephones and found that did not consider a relevant "special circumstance". His Honour then considered the question of transportation to and from prison and in particular the use of chains, manacles and shackles. His Honour accepted the applicants' version of these incidents but found that either separately or cumulatively they did not amount to relevant "special circumstances". They occurred on only two occasions. His Honour accepted the genuineness of the authorities' proposal to put in place procedures which would ensure no further transportation issues arose in the future. His Honour then dealt with complaints as to the number of personal and professional visits allowed. His Honour held that these were matters that had occurred against a background of general prison policy and administration and although they have caused the applicants inconvenience his Honour did not consider they amounted to relevant "special circumstances". His Honour dealt with some health and safety issues, mainly Mr Cabal having to wait for attention in the prison hospital in a small transit cell with another prisoner coughing up blood. His Honour thought these matters were incidents or consequences of the standard prison procedure and not such as to amount to relevant "special circumstances".

23 His Honour dealt with the applicants' complaint as to the new prisoners in Sirius East. The evidence was that some prisoners admitted to Sirius East since 23 December 1999 had been convicted of serious crimes of violence including murder, and some suffered from communicable diseases. Two incidents of violence had occurred in Sirius East, but they did not involve the applicants in any way. His Honour concluded (par 59) that, notwithstanding the nature of those offences, he was not satisfied there was a serious risk of harm to the applicants while they remained in Sirius East. They had not made any complaints of apprehended violence to them, nor had acts of violence been committed against them during a period of over seven months. The nature of the inmates in Sirius East did not constitute a relevant "special circumstance". The same was so in relation to the health situation. There was no evidence before his Honour that the nature and conditions of Sirius East were such that there was a significant likelihood that the applicants were liable to contract any of the communicable diseases from other inmates.

24 His Honour considered psychological evidence from Mr Jeffrey Cummins. His Honour found that some of Mr Cummins' evidence bore little weight, in particular because of the lack of a basis on which he was able to express an opinion about the position of other remand prisoners for the purpose of comparing their condition with that of the applicants. While sympathetic with the feelings of Mr Cabal's wife and children as a result of Mr Cabal's forced detention, his Honour thought that was an inevitable result of the extradition process. His Honour concluded that he was not satisfied that the matters which had occurred since 23 December 1999 were "special circumstances". Although the applicants had now been held in custody for sixteen moths, that period had to be understood in the light of what has occurred since they were first apprehended. Those circumstances included, as his Honour had noted in his 4 January 2000 judgment (pars 79 and 80) that the hearing before the Magistrate was complex and lengthy. The applicants sought a number of adjournments and extensions of time were granted. His Honour held that even if there were "special circumstances" he would not have exercised his discretion in favour of granting bail because there was still the risk of absconding referred to in his earlier judgment.

Habeas Corpus application to Gray J, 14 July 2000

25 By a separate application to which the Secretary of the Department of Justice of the State of Victoria was a respondent, the applicants sought habeas corpus and other relief. They contended their imprisonment in Sirius East was in contravention of the Act. On 14 July 2000 Gray J dismissed that application holding that the applicants were lawfully detained under the Act: Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 949. His Honour's judgment was upheld by the Full Court: Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 1227.

Review decision of French J, 29 August 2000

26 In the meantime the applicants' application for review of the magistrate's decision was heard by French J in April. On 29 August 2000 his Honour delivered judgment upholding the magistrate's order: Cabal v United Mexican States (No 3) [2000] FCA 1204.

Appeal of review decision to Full Court

27 The applicants appealed the decision of French J. Their appeal was heard by a Full Court over four days commencing on 27 November 2000. Judgment was reserved and has not yet been given.

Bail decision of Gray J, 20 December 2000

28 By a notice of motion filed in the appeal proceeding on 20 November 2000 the applicants sought to be admitted to bail pending the hearing and determination of the appeal. On 20 December 2000 Gray J granted bail to Mr Pasini but dismissed the application of Mr Cabal: Cabal v United Mexican States [2000] FCA 1892. Consistently with the view which Goldberg J had taken, Gray J held (at par 21) that while successive bail applications could be made, once a determination had been made on the question of "special circumstances" as at a particular date that determination was binding on the parties to the proceeding as to the circumstances at that date. His Honour thought an issue estoppel existed. If not, he thought he should take the view that Goldberg J's judgments established that, on the dates they were given, the conditions under which the applicants were imprisoned did not amount to "special circumstances", unless those judgments were "fundamentally wrong". In his Honour's view, the judgments of Goldberg J were correct.

29 His Honour noted that he had informed counsel for the applicants that he would deal with the application on the footing that it was incumbent upon them to establish that circumstances had changed since 20 April 2000, the date of Goldberg J's judgment on the second bail application, to the extent that it could now be said that the changed circumstances now constituted "special circumstances" justifying the exercise of the discretion whether to grant bail.

30 His Honour agreed with Goldberg J's construction of the expression "special circumstances" quoted at par 5 above. His Honour then proceeded to deal with the matters said by the applicants to constitute changed circumstances. The first was the lapse of time, by now two years, and the view expressed by French J in Shoenmakers 30 FCR 70 at 74-75 that imprisonment for a year, the period in that case, could never be regarded as anything other than a "special circumstance". Gray J said that French J cannot be taken to have laid down a rule of law. Lapse of time in the present case had to be viewed in context. While the applicants' exercising their legal rights was clearly not a matter for penalty, nevertheless the relevant Minister had been prevented from making a decision whether or not to surrender the applicants for extradition by their continued attempts to overturn the decision of the magistrate. It could not be said the proceedings in respect of review or the appeal were unreasonably slow having regard to their complexity. In the circumstances his Honour could not regard the time spent by the applicants in prison as a "special circumstance".

31 As to continued detention in Sirius East, his Honour accepted that conditions were "extremely difficult" for the applicants but nothing had changed since their earlier bail applications where the same conditions were held not to have constituted "special circumstances". It was not open to his Honour now to hold that these conditions constituted changed circumstances.

32 As to their fears for their safety in Sirius East, although the identities of the prisoners may be different the character of Sirius remained the same. Since the second judgment of Goldberg J two specific incidents were alleged to have occurred. One was on 30 May 2000 in which Mr Pasini told the occupant of a neighbouring cell to turn down the volume of his radio. The prisoner later spoke to the two applicants and showed them a weapon with a narrow blade. The prisoner was moved from Sirius East. More recently on 26 October 2000 in the exercise yard two prisoners indicated they wished to speak to Mr Cabal and began to approach him. They were intercepted by prison officers who searched them and found one to be carrying a pair of scissors. In addition Mr Cabal deposed to a belief that a fight occurred on or about 20 October 2000 in an exercise yard shared between Sirius East and Sirius West. Mr Cabal was informed by the inmates that knives were present at the scene. The two men were transferred to another unit for punishment but one returned to Sirius East a few days later. There were drugs available in Sirius East. Gray J noted that the correctness of those assertions was not necessarily accepted by the prison authorities. Nevertheless, even accepting them for present purposes, Gray J found their effect very limited. It was always the applicants' case before Goldberg J that they feared for their safety and that Sirius East was a dangerous and unhealthy place. Even if accepted as true, the incidents only supplied example of cause of the applicants' fears and feelings. The incidents also served to show that despite the nature of Sirius East and its inmates, the applicants have so far survived without harm. His Honour was of the view that the circumstances had not changed significantly since Goldberg J examined them.

33 Further, a number of judges had expressed concern as to the conditions under which the applicants were incarcerated. The judges include Goldberg J, a member of the Full Court that heard the appeal from French J, and Gray J himself. Gray J considered that if conditions remained the same, the expressions of opinion about them could not affect their character. It was said there had been a failure to change the conditions despite the expressions of opinions. Gray J thought in the light of s 53 there was no scope for the Australian Government to direct the government of a State to do something otherwise than in accordance with the law of that State or Territory.

34 His Honour referred to a claim which alleged breach of Australia's obligations under the International Covenant of Civil and Political Rights (ICCPR). In Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 949 Gray J held that the word "prison" in the Act did not, as the applicants contended, refer only to places of detention and not to places of correction. His Honour found that obligations under Art 10 of ICCPR, which provided for accused persons to be kept segregated from convicted persons, were not applicable because Australia's adherence to the treaty was subject to the reservation that the principle of segregation was to be achieved progressively. Australia did not have an absolute international obligation to ensure the segregation of unconvicted prisoners. The Full Court dismissed an appeal from his Honour's judgment: Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 1227. Special leave to appeal to the High Court was refused. In the meantime the applicants made a complaint to the Human Rights and Equal Opportunity Commission (HREOC). On 9 November 2000 Professor Alice Tay as a delegate of the Human Rights Commissioner made "preliminary findings" in relation to the applicants' complaints. No submissions had been made on behalf of the Australian Government. Gray J noted that Professor Tay was apparently uninformed of his decision, upheld on appeal, as to the application of ICCPR. The issue of non-segregation from convicted prisoners (held to be not unlawful in those judgments) appeared to his Honour to pervade the "preliminary findings". His Honour concluded that if the conditions in which the applicants were kept and the manner in which they have been treated do not amount to "special circumstances" they could not amount to "special circumstances" by reason of the expression of an opinion, or a mere allegation, that they involve infringement of human rights.

35 As to events in Mexico relating to the charges, Gray J referred to a considerable body of evidence to the effect that the proceedings taken by the applicants in Mexico to have the charges quashed had achieved some success. One warrant relating to tax offences and another relating to money laundering offences against Mr Cabal had been quashed in an Amparo Court. This is apparently a court in the Mexican judicial system which makes rulings as to the validity of legal process. However those decisions were subject to appeals. Some "parallel proceedings", that is charges not the subject of the extradition requests, had been discontinued. This was said to be because of the acceptance by the prosecuting authorities that there was no evidence of an element in those charges that Mr Cabal was in a particular decision-making position within Banco Union. The same element appeared in the charges which were the subject of the extradition request. Counsel for Mexico had objected to the introduction of such evidence and counsel for the applicants said that its only relevance was to establish that the applicants had great confidence that the charges against them would be quashed in due course. This confidence was said of itself to constitute a changed circumstance and to be a factor reducing the risk of flight if they were to be released on bail. Gray J found that to the extent that there has been a change in the basis for optimism and increased confidence of the applicants that they would be exonerated, that was a change in the circumstances since the last decision of Goldberg J, but it was not however a "special circumstance". As a matter of legal formality the applicants still faced all of the charges the subject of the extradition requests. Mexico did not concede that they would be exonerated in respect of any of those charges. His Honour concluded it was not appropriate for an Australian court to investigate the likelihood of acquittal of charges in the country to which extradition is sought.

36 As to the effect on the Cabal family, his Honour referred to psychological evidence from Mr Cummins. His Honour concluded that the difficulties suffered by the Cabal family were not significantly greater than those suffered by most families with one parent in prison.

37 As to the psychological state of the applicants themselves, his Honour was satisfied that Mr Cabal's condition was within the normal range liable to be suffered by someone of his background incarcerated in the way that he had been. The psychologist said Mr Cabal had a "major depressive disorder or major anxiety disorder". Mr Cabal was a dominant person and a leader. His Honour thought this a critical distinction between the two applicants. Because of his personality and because of his lesser role, Mr Pasini was more drastically affected by the condition identified by Mr Cummins. In his view the psychological condition of Mr Cabal did not constitute "special circumstances" but that of Mr Pasini did.

38 In summary his Honour concluded that even if all of the matters raised by the applicants were viewed cumulatively, they did not, with the exception of the psychological condition of Mr Pasini, amount to "special circumstances".

39 His Honour then turned to the discretion whether to grant bail. This involved balancing the risk that a person on bail would abscond against the personal circumstances of the person in the light of the presumption that an unconvicted person should not be deprived of his or her liberty without good reason. His Honour said that if he decided that "special circumstances" did exist in the case of Mr Cabal, he would, like Goldberg J, not have exercised his discretion in favour of granting bail. His Honour said (at par 70):

"Mr Cabal has a considerable history of living as a fugitive. He and his family have assumed false identities. He has been able to obtain identity documents and travel documents in those false identities, apparently without great difficulty. The charges against him are serious and involve allegations that he has committed offences involving extremely large amounts of money. In the past, he has certainly had access to substantial financial resources. It is to be expected that the time that will elapse before the Full Court gives its judgment in relation to the appeal will not be inordinately long. In my view, the risk of Mr Cabal absconding is admitted to bail if unacceptable."

40 His Honour went on to deal with the situation of Mr Pasini and found that his risk of absconding was significantly less.

Disposition of the present application

41 It was common ground that leave to appeal is necessary: Federal Court of Australia Act 1976 (Cth) s 24(1A). We are not persuaded that leave should be granted. Mr Cabal did not challenge the construction placed by both Goldberg J and Gray J on the expression "special circumstances" as used in s 21(6)(f)(iv) of the Act. Rather, his senior counsel argued that the circumstances relied upon cumulatively before Gray J amounted to "special circumstances" and that his Honour erred in law and in fact in finding that they did not.

42 We have gone in some detail into the previous history of the bail applications made in this matter because it shows that repeated attempts have been made by Mr Cabal to make out a case for "special circumstances", very largely based on the period and conditions of his imprisonment. Those applications have been rejected and the two decisions of Goldberg J, the earliest of which was made more than a year ago, have not been the subject of any application for leave to appeal. Much of the argument put to us by senior counsel for Mr Cabal was a repetition of those same complaints.

43 It is clear that successive applications for bail are permitted by the Act. It is equally clear, as Goldberg J and Gray J held, that this does not mean that successive applications can be made, as it were, on a clean slate, ignoring the findings that were made in relation to earlier applications. This is so whether it is the same judge or a different judge who hears the subsequent applications. We do not regard issue estoppel as being applicable to such applications nor do we consider that the Court can deal with them on the basis that after the rejection of the first application the applicant must show changed circumstances in order to succeed on a subsequent application. To require changed circumstances as a condition precedent to succeeding in a subsequent application would substitute the word "changed circumstances" for "special circumstances" in s 21(6)(f)(iv) in respect of subsequent bail applications.

44 However, as with any interlocutory application, changed circumstances will usually have to be established in order to persuade a judge of the Court to take a different view of the same application to that taken previously by another judge of the Court. In another context it has been said that a different interlocutory order to that previously made will be appropriate, inter alia, whenever new facts come into existence or are discovered which render the continued operation of the earlier order unjust: see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 178.

45 Accordingly, there is some substance in the complaint made on behalf of Mr Cabal that Gray J erred in law in his approach to s 21(6)(f)(iv) by requiring him to establish "that the changed circumstances now constitute `special circumstances' justifying the exercise of the discretion whether to grant bail". As explained above s 21(6)(f)(iv) directs attention to whether there are "special circumstances" rather than whether there are "changed circumstances" justifying the grant of bail. Thus, the focus of the sub-section does not alter merely because there have been previous bail applications by an applicant under the sub-section. However, in our view, the error said to have been made did not result in any error in the result. His Honour, in the exercise of the discretion conferred under s 21(6)(f)(iv), was entitled to take the view that absent changed circumstances, or being persuaded that the previous decision was plainly wrong in some significant respect, the application should be refused.

46 In any event we doubt that there were any new facts of significance which were before Gray J, but not before Goldberg J. The comments of judges (made in cases where the applicants had failed to obtain bail) and the "preliminary findings" of Professor Tay arise essentially from the primary facts and circumstances that were carefully considered by Goldberg J and, in themselves, do not amount to special circumstances justifying the grant of bail. We are also of a similar view concerning the two additional incidents relied upon before Gray J. Although they constituted an additional reason for Mr Cabal's fear for his safety, which was a ground relied upon before Goldberg J, we can find no error in Gray J considering their effect to be limited, particularly in view of the steps taken by the prison authorities to protect the applicants from being exposed to the risk of harm.

47 Therefore, we would hold that the ultimate decision of Gray J, from which leave to appeal is presently sought, was not attended by sufficient doubt to warrant the grant of leave.

48 Moreover, senior counsel for Mr Cabal informed us that, if the application were granted and the appeal allowed, we would be asked to exercise the discretion anew and grant bail. However, even if the appeal were allowed we are firmly of the view that we would not have granted bail at this stage. One of the reasons which quite properly influenced Goldberg J's holding on the first application was that at that stage the magistrate's order had already been made. The position today is much stronger. The magistrate's order has been upheld on review by a single judge and an appeal against the decision of that judge has been heard and the decision reserved some two and a half months ago. A decision on that appeal could reasonably be expected at any time now. If the decision is adverse to Mr Cabal, it is unlikely that this Court will have any further role in the matter. If the decision is in favour of Mr Cabal his case for release, or bail pending any appeal, may be a strong one. In those circumstances, even if appealable error by Gray J were demonstrated and we were called upon to exercise the discretion, at this late stage we would require more compelling reasons than were presented to us to grant bail.

49 Further there is the undoubted evidence, already referred to by the other judges, as to Mr Cabal's past history of living as a fugitive and using false names and moving himself and his family around the world. He is obviously a man with access to vast resources and the substantial risk of abscondment on his part at this late stage remains, even if we were to accept his version of past events.

50 Accordingly, for the above reasons the application will be dismissed with costs.

51 Finally, we would add that on 16 February 2001, two days after the hearing of the application, the applicant filed further written submissions. Leave had not been granted, or sought, for such submissions. We have not called on the respondents for a response as we are satisfied that the submissions do not warrant us taking a different view as to the disposition of the application.

We certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Marshall and Merkel.

Associate:

Dated: 21 February 2001

Counsel for the Applicant:	J Gilmour QC and J Manetta
Solicitor for the Applicant:	J Podgorelec
Counsel for the first and second Respondents:	L Lieder QC and G Gilbert
Solicitor for the first and second Respondents:	Commonwealth Director of Public Prosecutions
Counsel for the third Respondent:	BE Walters
Solicitor for the third Respondent:	Australian Government Solicitor
Date of Hearing:	14 February 2001
Date of Judgment:	21 February 2001