FEDERAL COURT OF AUSTRALIA

Peniche v Hannan [1999] FCA 915

EXTRADITION – proceedings before magistrate to determine whether person eligible for surrender – adjournment of proceedings by magistrate – whether magistrate failed to give consideration to relevant matters in exercising discretion to adjourn proceedings – principle against fragmentation – whether magistrate exceeded jurisdiction in opining that there had been reasonable time to prepare for surrender proceedings – whether denial of natural justice.

Extradition Act 1988 (Cth), s 19(1)(d)

Foreign States Immunities Act 1985 (Cth), s 10(3)

Judiciary Act 1903 (Cth), s 39B

Transport Workers Union  v Lee (1998) 84 FCR 60 referred

Director of Public Prosecutions v Kainhofer (1995) 185 CLR 528 applied

The Queen v Iorlano (1983) 151 CLR 678 referred

Re Rozenes; Ex parte Burd (1994) 68 ALJR 372 discussed

Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149 applied

The Queen v Elliott (1996) 185 CLR 250 referred

Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 applied

Johnson v Williams (Attorney-General) (unreported, O’Loughlin J, 7 May 1999) [1999] FCA 586 referred

Dutton v Republic of South Africa (unreported, Burchett J, 7 January 1999) [1999] FCA 2 referred

R v Connell; Ex parte The Hetton Bellbird Collieries Limited (1944) 69 CLR 407 referred

Buck v Bavone (1976) 135 CLR 110 referred

Foley v Padley (1984) 154 CLR 349 referred

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 referred

CARLOS CABAL PENICHE & ANOR v LISA HANNAN M & ANOR

V 280 of 1999

KENNY J

MELBOURNE

6 JULY 1999

THE COURT ORDERS THAT:

1.        The motion, notice of which is dated 28 May 1999, be dismissed. 

2.        The application dated 28 May 1999 be dismissed.

3.        The applicants pay the second respondent’s costs of and incidental to the application, including the costs of and incidental to the motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

the application

1                     This is one of a number of applications by Carlos Cabal Peniche (“Mr Cabal”) and Marco Pasini Bertran (“Mr Pasini”) which were heard in June.  The other applications are in matters V 120 of 1999, V 121 of 1999 and V 222 of 1999.  On this application, orders are sought in the nature of prohibition and certiorari in respect of (1) the first respondent’s decision, made on 13 May 1999, that the applicants had had reasonable time to prepare for the conduct of proceedings under s 19 of the Extradition Act 1988 (Cth) (“the Act”); (2) the first respondent’s decision, made 13 May 1999, to commence proceedings under s 19 on 19 July 1999; and (3) the first respondent’s decision to make directions for the preparation and conduct of the s 19 proceedings. 

2                     Declaratory and injunctive relief is also sought.  In particular, permanent injunctions are sought restraining the respondents from taking any steps to give effect to the directions made on 13 May and, as against the first respondent, from continuing to hear and determine the s 19 proceedings (and any pre-trial step in the proceedings), or from hearing the s 19 proceedings prior to the determination of proceedings in this Court in matters V 120 of 1999, V 121 of 1999 and V 222 of 1999.  An application for interlocutory relief was made by notice of motion dated 28 May 1999.  The motion was supported by an affidavit by the applicants’ solicitor, Mr George Defteros, sworn on 28 May 1999.  On 7 June 1999 it was ordered that the hearing of that motion be treated as a final hearing of the application for a permanent injunction.  In opposition, the second respondent relied on an affidavit sworn by Daniel Donato Caporale on 9 June 1999.

3                     The second respondent, the United Mexican States (“Mexico”), submitted to the jurisdiction of the Court subject to the exclusion of any remedy or relief being granted against it.  I accepted that a submission subject to such exclusion might validly be made:  see Foreign States Immunities Act 1985 (Cth), s 10(3).  The Court was informed that the magistrate did not wish to participate in the proceedings but was content to abide by the Court’s decision. 

background facts

4                     The facts can be briefly stated.  Mr Cabal and Mr Pasini are citizens of Mexico.  They left Mexico some years ago and have not returned there since.  Warrants for their arrest were issued in Mexico in connection with various alleged offences (and were later stayed by a Mexican court).  Both applicants are in custody in Port Phillip Prison pursuant to orders made by a magistrate under s 15(2) of the Act.  Both are facing proceedings under s 19 of the Act (“the s 19 proceedings”) in which a magistrate will be required to determine whether they are eligible for surrender in relation to the alleged extradition offences for which their surrender is sought by Mexico.  The applicants oppose surrender.  They maintain that there are substantial grounds, within the meaning of s 19(2)(d), for believing that there is an extradition objection in relation to the alleged offences.  According to Mr Defteros, in his affidavit sworn in this proceeding on 28 May 1999:

The basis of their objection is that they and their family have been subjected to political persecution by the Government of Mexico and that officials of the Mexican Government have used the legal apparatus of the State, including criminal prosecutions, tax audits, and the investigation of banking activities, selectively to prosecute the applicants and other members of their family.

5                     On 15 February 1999, the s 19 proceedings were fixed, by consent, to commence on 15 June, with an estimated duration of three weeks.  On 11 May 1999, however, Mr Cabal and Mr Pasini made application to the first respondent to vacate that date.  Counsel for Mr Cabal submitted:

[T]he date should be vacated and not another date set until the decision of the Federal Court of Australia in the Federal Court matters is delivered, and we make an alternative submission which is that the dates should be vacated and later mentioned depending on the state of progress of the preparation of the cases of the applicants.  We submit under either submission that no new date should be set today for the actual conduct of the extradition proceedings.

The estimated duration of the s 19 proceedings was, according to Mr Cabal’s counsel, some eight weeks.  (The estimate assumed, it seems, that Mexico would not lead any evidence in reply.)  Counsel for Mr Pasini supported Mr Cabal’s application. 

6                     The application to vacate the June date was made to the first respondent on two bases.  First, the applicants submitted that the s 19 proceedings ought to await the determination of proceedings in matters V 120, 121 and 222 of 1999 in this Court.  Those proceedings challenged the validity of the notices issued under s 16(1) of the Act in respect of Mr Cabal and Mr Pasini.  If the applicants were to succeed in those proceedings in the Federal Court, then the s 19 proceedings would necessarily fail for want of jurisdiction.  Secondly, the applicants submitted that they had not had reasonable time in which to prepare for the conduct of the s 19 proceedings and that, accordingly, a statutory pre-condition of the first respondent’s jurisdiction had not been satisfied.  That submission depended on s 19(1)(d) of the Act.

7                     The application, which was opposed by Mexico, was heard over three days, namely, 11 – 13 May 1999.  The hearing is recorded in some 166 pages of transcript.  Ultimately, the first respondent found that the applicants and Mexico had had a reasonable time in which to prepare for the conduct of the s 19 proceedings.  The first respondent stated: 

I simply say … that preparations are progressed, Pryles and Defteros having been instructed to act on 28 January. 

Some witness interviews have been conducted and I am told some 20 statements have been obtained, at least in draft form.  The second s 16 notice served on Mr Cabal has not been argued to have either taken the applicants by surprise or substantially altered the grounds they will seek to argue.

Some five months have now elapsed.  In my view all these matters, taken in combination, lead me to the view that a reasonable time has been afforded to the applicants in terms of the preparations of these matters.  Accordingly, the application for adjournment is granted only to the extent necessary to allow the court to accommodate the increased time estimate.  The date that is available – and I will hear from counsel in relation to a time frame in a moment – is 19 July.  I indicated yesterday 5 July.  I have now managed to secure dates for eight weeks commencing on Monday, 19 July, and concluding on 10 September.  I will hear from counsel in relation to how that may or may not alter the time frame that has been suggested to me.  I indicate that I intend to manage this matter in the sense of having it come back before me on at least two occasions. 

Her Worship declined to adjourn the s 19 proceedings until after the determination of the proceedings in this Court. 

8                     As indicated in the above passage, after her ruling she heard argument on the directions to be made in preparation for the July hearing.  In the course of argument, counsel for Mexico stated that Mexico desired to reserve the right to file affidavits in reply to those filed by the applicants.  As to this, counsel for Mr Cabal said:

There has been no reference to that issue at all in these proceedings, either before other magistrates or before you.  …

The estimate that I gave you as to eight weeks was upon the basis that it would take that long for our material to be put before Your Worship.  We have not understood at all, and are taken completely by surprise, by the suggestion that there will be evidence in rebuttal, and if there is evidence in rebuttal, Your Worship, then the whole issue of the time-table and the program for the exchange of material will need to be reconsidered.

Her Worship said:

Mr Bell wishes to be heard in relation to the whole question of whether I can keep the current time-table.  I indicate that I will absolutely not be revisiting any aspect that I have already dealt with.  I will only hear short submissions aimed precisely in relation to matters that have now been raised.  I am not going to re-traverse the matters that I decided this morning.  I will hear some short submissions in relation to why it is you say, Mr Bell, that the situation has changed. 

9                     Permitted this opportunity, counsel for Mr Cabal (supported by counsel for Mr Pasini) submitted that the first respondent should vacate the orders made earlier that day –

because you ought not now be satisfied that a reasonable time has been allowed for the applicants to prepare for the conduct of the extradition proceedings.

The applicants’ counsel insisted that the basis upon which they made their application had changed.  Counsel for Mr Cabal commented:

We were allowed to proceed on the basis that it would be us who would be putting forward evidence to you in relation to the matter arising under s 19(2)(d) being the extradition objection issue, and Your Worship proceeded upon the basis that it would be the applicants who would put forward evidence in relation to that question … . 

Counsel for Mr Cabal stated that Mr Cabal proposed to advance “very strong criticisms … of Mexico” and that he (and Mr Pasini) would allege “that the government in significant areas in Mexico is rife with corruption, exercises government power in a prejudicial and partisan way, and that this has occurred in the instant case in respect of those two men”.  Counsel for Mr Cabal continued: 

But unless and until we have the affidavits that might be filed on behalf of Mexico, and unless and until we are able to obtain instructions from our own witnesses in relation to the contents of those affidavits and are able to lead evidence in reply in the usual way, we cannot reasonably be expected to subject ourselves to extradition proceedings, we submit.  The situation therefore, as it now presents to you, is fundamentally different to the situation as it presented to you this morning.

10                  Counsel for Mexico responded that the applicants’ renewed application was premature.  “We do not know”, he said, “whether objection will be taken to the admissibility of certain parts of those affidavits [to be filed by the applicants] or whether or not Mexico would concede certain aspects of those affidavits and so for Your Worship to in a sense be asked to rule and to vacate your orders that you foreshadowed this morning on the basis of information that today is completely unknown is very similar to Your Worship having been asked to take into account the future progress of the Federal Court proceedings”.  Counsel for Mexico continued:

We have certainly not kept this matter secret, it is a matter that we have been proceeding on a different assumption to that of Mr Bell.  He has proceeded on the assumption that we have no right to call evidence in rebuttal.  The Act is silent on that issue.  …

But I can assure Your Worship that there was no intent on our part to keep any matter to ourselves. 

11                  Ultimately, what her Worship said was this:

I do not propose to vacate the orders I made this morning.  In my view a reasonable time has been afforded and as indicated this morning, even taking into account the new matters, in my view there is still the two months hence.  That is obviously a matter I also considered this morning but in my view nothing has materially changed in the sense of it being still in the realms of speculation in terms of what ultimately will occur in these proceedings and whether the Crown will seek – sorry, whether Mexico will seek to exercise a right that they assert they have to call evidence in these proceedings. 

I propose to give the following directions: 

1.         Particulars and extradition objection to be filed and served by the applicants, Mr Cabal and Mr Pasini on or before 27 May. 

2.         Particulars in opposition to the particulars of the objection are to be filed by Mexico on 4 June.

3.         Affidavits to be relied upon by the applicants to be filed and served on or before 18 June.

4.         On or before 23 June Mexico to file and serve list of witnesses required for cross examination.

5.         There will be a special mention before me on 23 June.  I’ve altered that date from the 24^th to ensure that the witness list is filed, et cetera.

6.         Affidavits to be relied upon by Mexico to be filed and served on or before 28 June.

7.         Any affidavit in reply to be filed and served on or before 5 July.

8.         There will be a special mention of this matter before me on 12 July – hearing to commence 19 July.

jurisdiction of the court

12                  The applicants submitted that the Court has jurisdiction to hear and determine the matters raised upon the application in V 280 of 1999, by reason of s 39B(1) and s 39B(1A)(c) of the Judiciary Act 1903 (Cth) and the Court’s accrued jurisdiction.  The second respondent conceded that there was jurisdiction, principally on account of s 39B(1A)(c) of the Judiciary Act.  That provision confers original jurisdiction on the Court “in any matter … arising under any laws made by the Parliament”:  see Transport Workers Union  v Lee (1998) 84 FCR 60 at 67.  A matter arose under a law made by the Parliament, so the parties said, because a matter arose under s 19(1)(d) of the Act.  In light of the second respondent’s concession and the view I have reached as to the appropriate outcome of this application, there is little need to discuss the question of jurisdiction further.  On the assumption the Court has jurisdiction, I would not, for the reasons given below, grant the applicants the relief they seek.

the applicants’ claims

13                  The applicants submitted that the first respondent:  (1) failed to give any or any adequate consideration to matters relevant to the exercise of her discretion to adjourn the s 19 proceedings; (2) exceeded the jurisdiction conferred on her by s 19 of the Act; and (3) denied them natural justice.  I reject these submissions, for the reasons given below.

failure to give consideration to relevant matters

14                  The applicants submitted that, in refusing their application not to fix a date for the s 19 proceeding until after the determination of the proceedings in this Court, the first respondent erred in failing to take into account and assess the pendency of the proceedings in this Court.  Her Worship had failed, so the applicants submitted, to take into account:

(1)     the pendency [of the Federal Court proceedings] which if determined [in their favour] would have deprived the first respondent of any jurisdiction to conduct a hearing pursuant to section 19;

(2)     whether there was any serious question to be tried in the [Federal Court] proceedings such that there was a legitimate doubt about whether the first respondent had jurisdiction to conduct proceedings pursuant to section 19;

(3)     whether, if there was a serious question to be tried, it was just and convenient in all of the circumstances for the hearing of the s 19 surrender proceedings to be adjourned pending the hearing and determination of the [Federal Court] proceedings.

15                  Those submissions turn in part on the nature of the case made by the applicants in matters V 120, 121 and 222 of 1999.  Briefly, the case made by the applicants in those matters is in substance as follows.

(1)         The extradition requests made by Mexico in respect of Mr Cabal and Mr Pasini are invalid on account of Mexico’s failure to disclose:  (a) the Amparo stay; and (b) that the limitations period for most of the alleged offences has expired.

(2)         Mexico’s second extradition request for Mr Cabal is invalid because it was made when the first request was still on foot and neither the Act nor the Treaty on Extradition between Australia and the United Mexican States permits concurrent requests from the same extradition country to operate at the same time respecting the same person.

(3)          The s 16 notices in respect of Mr Cabal and Mr Pasini are invalid because:  (a) they are based on an improperly formed and wrong opinion that the applicants are “extraditable persons”; and (b) they were issued in breach of the duty to observe natural justice in that (i) the Attorney-General refused to supply Mr Pasini with material to which he could respond; and (ii) the Attorney-General refused to extend the opportunity to be heard to Mr Cabal on any issue.

The submissions made to the magistrate

16                  Having read and considered the transcript of the hearing accorded by the first respondent, I am unable to accede to the applicants’ submission that her Worship failed to take into account and assess the pendency of the proceedings in this Court.

17                  The applicants invited her Worship to take into account a number of matters, including the following.

(1)               The matters raised in the Federal Court proceedings would, if determined in the applicants’ favour, deprive her of jurisdiction to conduct the s 19 proceedings.

(2)               The primary claim made in those proceedings is that all the s 16 notices issued in respect of Mr Cabal and Mr Pasini are invalid.

(3)               The validity of the s 16 notices could not be determined by her Worship in the s 19 proceedings.

(4)               The Federal Court proceedings raise “a serious and genuine non-colourable challenge” to her jurisdiction, “a very serious triable issue” (regarding the Amparo stays) and “an open and shut case” (regarding denial of natural justice).

(5)               There might be appeals from the decisions at first instance in the Federal Court and there might be applications for delay based on those appeals.

(6)               The principle against fragmentation is inapplicable.

(7)               If the s 19 proceedings were to proceed and the applicants met with success in the Federal Court, the applicants would incur considerable additional expense and inconvenience in opposing the s 19 proceedings.

18                  Mexico invited the first respondent to consider such matters as the following. 

(1)               Having regard to the Act, an open-ended adjournment of the s 19 proceedings would be impermissible.

(2)               It is clear that “none of the attacks on the s 16 notices will ultimately succeed”; that it is “tolerably clear now, the end result after two years will be failure”; that “those attacks on s 16 notices are … ostensibly a strategy to fragment and delay the extradition process”; and that the matters raised in the Federal Court are “barely arguable”.

(3)               It is clear that “a great deal of time can be taken up in having [the applicants’ claims] properly heard by the Federal Court and possibly the subject of the appellate process”.

(4)               It is appropriate for the first respondent to proceed on the basis that the s 16 notices are valid.

(5)               Bearing in mind that extradition is antecedent to a criminal trial, it is important, as a matter of public policy, that there is no inordinate delay in the extradition process.

(6)               In the Federal Court proceedings, “none of the points [is] so simple and straightforward as to be capable of quick resolution”.

(7)               The “fragmentation of the criminal process which is involved is not outweighed by any real benefit that might flow from the collateral resolution of the issue”.

(8)               Whilst the validity of s 16 notices could not be the subject of enquiry in s 19 proceedings before the first respondent, many of the issues that the applicants sought to raise could be raised in relation to any determination that might be made by the Attorney-General under s 22 and, in consequence, the applicants’ challenges are premature.

(9)               There is no unfairness in continuing with the s 19 proceedings because the applicants will not be prevented subsequently from raising any issue.

(10)           Mr Pasini had already unsuccessfully sought an adjournment of the proceedings in the Refugee Review Tribunal on the basis of there being s 19 proceedings on foot.

The first respondent’s decision

19                  In my view, the first respondent clearly appreciated the nature of the difficulties presented by the concurrent conduct of the s 19 proceedings and proceedings in this Court.  Her Worship took into account and assessed the pendency of the proceedings in this Court in declining to grant an adjournment on the terms sought by the applicants. 

20                  As the first respondent recognised, her decision required the exercise of discretion.  In determining how that discretion should be exercised, her Worship acknowledged that a primary issue in the Federal Court proceedings (the validity of the s 16 notices) was not an issue that could be decided by her in the s 19 proceedings.  Her Worship said:

It is common ground that a valid s 16 notice is a necessary pre-condition to a s 19 hearing.  However, for my purposes, as extradition magistrate, it is only necessary, and indeed only permissible, for me to look to the notice with a view to determining whether the notice is valid on its face.  Any further challenge to the validity is necessarily dealt with by way of judicial review. 

Plainly enough, the decision of the High Court of Australia in Director of Public Prosecutions v Kainhofer (1995) 185 CLR 528 at 539 per Brennan CJ, Dawson and McHugh JJ and 541 per Toohey J is authority for that view.  (For present purposes, it is unnecessary to consider whether the first respondent is precluded from considering any other issue that arises in the Federal Court proceedings, or whether some or all of the issues raised in the Court proceedings might fall for the Attorney-General’s consideration under s 22(3)(f) of the Act.)

21                  The first respondent observed that, if the hearing of the s 19 proceedings were adjourned on the terms the applicants sought, there would be

no real prospect or method of determining when the matter would be likely heard in this court. … [There would be] significant delay.

That observation was patently relevant.  The contest between the applicants and Mexico on this issue related chiefly to the duration of the delay.  Mexico submitted that the adjournment, if granted, would have been indefinite, whilst the applicants submitted that the adjournment would be only until “the outcome before the Justice at first instance in the Federal Court” was known, although they acknowledged that appellate process might well be invoked and further adjournment applications made.  I do not think it matters much which way the matter is put:  there was no error in the first respondent’s approach and it was, on either view, plainly correct.

22                  The learned magistrate also had regard, as she was required, to the interest of the administration of justice, noting “there are obviously competing interests which fall to be considered.  The interests of both the applicants and the respondents in this regard are matters which I must have regard to, and I have done so”.  The first respondent properly had regard to the need for expedition on the one hand and the need to ensure that the applicants had the full benefit of the protection of the laws of this country (and, in particular, the Act) on the other.  If the applicants were extradited to Mexico as Mexico requested, then (subject to successful challenges in Mexico under Mexican law) they would stand trial.  Whilst in Australia, the applicants were in custody with limited prospects of bail:  s 15(3) and (6).  Those considerations and the terms of the Act (particularly in ss 3, 12, 16, 17, 21 and 22) support the proposition that extradition proceedings ought to proceed with expedition.  Plainly enough, however, the applicants were not, in the interests of expedition, to be deprived of the full benefit of the protection conferred by law and, in particular, the Act.  The transcript shows that the first respondent was fully cognisant of those competing considerations.

23                  As already noted, the first respondent was addressed by the applicants and Mexico on the merits of the Federal Court proceedings.  The proceedings, so the applicants said, had significant prospects of success.  Mexico said they had none.  Her Worship commented:

Much has been said by all counsel in relation to the alleged nature, purpose and likely success of the Federal Court proceedings.  As I have said more than once in the course of these applications, it is my view that it would be neither possible nor permissible for me to form any view in relation to that matter.  The only relevance from my point of view, lies in a simple fact, that there are currently on foot contested proceedings relevant to the s 16 notice.

In a similar vein I had been addressed in relation to possible scenarios and time frames which might arise even after the decision of the Federal Court is handed down.  At the end of the day, I am satisfied that on any view it is unlikely that the current proceedings in the Federal Court would be resolved until late this year or early next year.

24                  In light of this, her Worship accepted that the adjournment of the s 19 proceedings until after the determination of the proceedings in this Court would fragment the process.  The first respondent observed that:

I am in effect being asked to exercise my discretionary power in relation to adjournment to bring about a result that would lead to delay and fragmentation.  I am in a position where there is no bar to me proceeding to hear the s 19 hearing at a time when the Federal Court proceedings are on foot, unless, in effect, I am persuaded it would be unfair, unjust or not in the interests of justice to do so. 

After referring to the fact that the s 19 proceedings would not deprive the applicants of any rights that they might seek to vindicate in the Federal Court and to the undesirability of fragmentation, her Worship held that she was “not satisfied that it is appropriate to exercise [her] discretion to adjourn these proceedings, to await disposition of the challenges to the s 16 notices in the Federal Court”. As noted earlier, she declined to vary her ruling after the applicants submitted that the situation had been fundamentally changed by Mexico’s reservation of the right to file affidavit material in reply.  (For the reasons given below, I reject the applicants’ submission, made in this Court and before the first respondent, that the principle against fragmentation (or a cognate principle) does not apply.)

25                  It is plain enough from what I have just said that the first respondent did have regard to the fact that (1) the proceedings were pending in this Court and that they related directly to her jurisdiction; and (2) that the applicants and Mexico made competing submissions as to the prospects of success of those proceedings.  I reject the applicants’ submission that the first respondent erred in declining to form a view as to the merits of the proceedings in this Court.  As presented to her Worship, many of the issues in those proceedings were to depend upon evidence as to Mexican law.  No issue was said to be straightforward, and capable of determination on facts that were either uncontested or capable of speedy ascertainment.  Further, it was common ground that the first respondent was without power to decide, even in a preliminary way, the principal matter for determination in the Federal Court challenge, namely, the validity of the s 16 notices.

The principle against fragmentation

26                  Before her Worship and before me, the applicants submitted that the principle against fragmentation did not apply and, accordingly, her Worship ought not to have taken the principle into account.  The applicants submitted, amongst other things, that the s 19 proceedings had not yet begun and that most, if not all, issues to be decided in this Court were not capable of being decided in s 19 proceedings.  In consequence, the proceedings in this Court were not, so the applicants submitted, collateral in the relevant sense.

27                  I accept, as the applicants’ counsel noted, that, in many of the cases in which the principle against fragmentation has been invoked, there has been an attempt to raise collaterally matters that could have been decided at the trial of the charges:  see The Queen v Iorlano (1983) 151 CLR 678 at 680; Re Rozenes; Ex parte Burd (1994) 68 ALJR 372 at 373-4; Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149 at 187-188; The Queen v Elliott (1996) 185 CLR 250 at 257.  It is well established in this connection that criminal proceedings should not be fragmented by other courts entertaining, except in exceptional or extraordinary circumstances, claims involving aspects of the criminal trial.  It is accepted that the nature of the claim is relevant to the question whether there are exceptional or extraordinary circumstances shown.  If, for example, a claim for relief involves a pure question of law to be resolved on undisputed facts, then the circumstances may be characterised as exceptional in the relevant sense. 

28                  The principle against fragmentation is designed to protect “the public interest in the expeditious resolution of accusations of crime”:  Flanagan 60 FCR at 187-188; The Queen v Elliott (1996) 185 CLR 250 at 257.  Perhaps it is on account of this that the principle has not been limited to collateral review (in the strict sense) of matters arising in criminal proceedings, and has been extended to review of extradition proceedings.  Proceedings of this kind can be said to give rise to the need to protect a very similar and closely related public interest, i.e., the speedy resolution of criminal trials to be held in an extradition country with whom Australia has obligations under extradition treaties. 

29                  In Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 (where, as in V 120 of 1999, V 121 of 1999 and V 222 of 1999, there was a challenge to the Attorney-General’s decision to issue a s 16 notice), a Full Court of this Court affirmed, at 413, that “there are sound reasons of policy why the Court should be reluctant to intervene at an intermediate stage of the extradition process, in the absence of an exceptional situation, for instance the determination of a discrete point of law on uncontested facts”.  See also Johnson v Williams (Attorney-General) (unreported, O’Loughlin J, 7 May 1999) [1999] FCA 586, pars 53-55; and Dutton v Republic of South Africa (unreported, Burchett J, 7 January 1999) [1999] FCA 2, par 20.  The applicants did not seek to persuade the first respondent (or me) that the issues arising in the Federal Court were to be characterised as falling outside the fragmentation principle by reason of their straightforward character permitting ready resolution on substantially uncontested facts.

30                  The principle against fragmentation was relevant to the question whether the justice of the case called for an adjournment of the s 19 proceedings pending the determination of the Federal Court proceedings.  So too was the fact, also relied upon by the first respondent, that the applicants would not be precluded from raising any issue if the s 19 proceedings were to proceed.  There was, of course, the risk that what promised to be lengthy s 19 proceedings would turn out to be entirely futile (and a waste of effort) because the applicants would succeed in their challenges to the validity of the s 16 notices.  That risk was patent, but it did not of itself justify the grant of an adjournment of the kind the applicants sought:  see Re Rozenes; Ex parte Burd (1994) 68 ALJR 372 at 373-4.  Bearing in mind that s 19(1) of the Act imposes a mandatory duty on a magistrate to conduct proceedings to determine whether a person is eligible for surrender where the preconditions set out in paragraphs 19(1)(a), (b), (c) and (d) are satisfied and that the Act does not permit a s 19 magistrate to enquire into the validity of a s 16 notice, I reject the applicants’ submission that the structure of the Act favoured the grant of an adjournment on the terms sought by the applicants.  It follows that I find no error in the approach taken by the first respondent in declining to grant an adjournment on those terms

excess of jurisdiction

31                  Before the first respondent conducts s 19 proceedings, she must consider that the applicants and Mexico have had reasonable time in which to prepare for the conduct of those proceedings:  s 19(1)(d).  If it were shown that she had failed to form that opinion in accordance with law, then jurisdictional error would be shown.  Where a decision-maker is required to hold an opinion of the kind referred to in s 19(1)(d) of the Act as a condition precedent to an exercise of power, then that opinion must be arrived at reasonably.  That is, it must be “such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts”:  R v Connell; Ex parte The Hetton Bellbird Collieries Limited (1944) 69 CLR 407 at 430 per Latham CJ.  The applicants submitted that the opinion formed by the first respondent as to whether the applicants had had reasonable time to prepare was so unreasonable that no reasonable magistrate could properly have arrived at it:  cf Buck v Bavone (1976) 135 CLR 110 at 118-9 per Gibbs J; Foley v Padley (1984) 154 CLR 349 at 353, 370, 375; and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 at 608-609 per Gummow J. 

32                  Amongst the matters placed before the first respondent in support of the applicants’ submission that they had not had reasonable time to prepare were (1) the complexity of the applicants’ extradition objections calling, so it was said, for wide-ranging enquiry into the political, governmental and financial fabric of Mexico; (2) the magnitude of the evidentiary task, involving, so it was said, a significant number of expert and other witnesses, including “eminent lawyers, political scientists, industrialists, former politicians and historians”; and (3) difficulties in assembling evidence arising from the foreign location of the evidence, differences in time zones, language differences, the applicants’ ongoing incarceration, and the political nature of the case, including its high public profile in Mexico.  The countervailing factors relied on by Mexico included that (1) the nature of the extradition objections had been foreshadowed by the applicants since at least early in 1999, when the applicants had consented to a June hearing date; (2) the applicants had already had several months or more in which to prepare and would have further time; (3) Mexico had been ready to proceed for some time; (4) the applicants were legally represented by a team of lawyers and had been represented in the extradition proceedings by their present solicitors since the end of January; and (5) that the applicants and their legal representatives had been assisted in Australia by a lawyer from Mexico (Mr Zinser). 

33                  Besides these matters, there was evidence before the first respondent, in an affidavit sworn by George Defteros on 11 May 1999 (and exhibited to his affidavit of 28 May 1999 filed in this Court), that preparations for the s 19 proceedings were being made by the applicants’ legal representatives from at least 15 February 1999; that junior counsel for the applicants had been in Mexico from 26 January to 10 February 1999, had interviewed some twenty-nine witnesses, and obtained draft witness statements from twenty possible witnesses; that some of those statements were, on 11 May 1999, suitable for use and were being drafted into final form; that other statements to be filed on the applicants’ behalf required further consultation; that numerous other witnesses for the applicants had been identified; and that senior counsel for the applicants was not available to travel to Mexico until late July 1999, in order to settle witness statements for a hearing.  There was also the applicants’ counsel’s estimate that the hearing would require at least eight weeks’ hearing time. 

The first respondent’s ruling

34                  In reaching the view that the applicants (and Mexico) had had reasonable time in which to prepare, the first respondent stated:

What is reasonable in particular case will obviously depend on matters particular to that case.  It is relevant here to note:  (1) the applicants have been in custody since late last year; (2) s 16 notices were issued on 21 January and 30 March of this year.  The applicants have at all times been legally represented.  The fact that a political exception will be argued has been known from an early stage.  Preparations have progressed, [the applicants’ present solicitors] having been instructed to act on 28 January. 

Some witness interviews have been conducted and I am told some twenty statements have been obtained, at least in draft form.  The second s 16 notice served on Mr Cabal has not been argued to have either taken the applicants by surprise or substantially altered the grounds they will seek to argue.

Some five months have now elapsed.  In my view all these matters, taken in  combination, lead to the view that a reasonable time has been afforded to the applicants in terms of the preparations of these matters.  Accordingly, the application for adjournment is granted only to the extent necessary to allow the court to accommodate the increased time estimate.  The date that is available – and I will hear from counsel in relation to a time frame in a moment – is 19 July.  …  I have now managed to secure dates for eight weeks commencing on Monday, 19 July, and concluding on 10 September.

I am unable to detect any error in her Worship’s approach.  There was, in my view, evidence before her Worship upon which she could consider that there had been reasonable time to prepare for the conduct of s 19 proceedings:  cf Connell, at 435 per Latham CJ.  As Gummow J observed in Eshetu at 609:

Where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question.  It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way. 

It is, I think, plain enough that the applicants recognised the difficulty referred to by Gummow J in the above passage.  They attempted to overcome or circumvent it, by submitting that the timetable fixed by her Worship itself showed that she had adopted a pre-determined and unreasonable position. 

A pre-determined position?

35                  Counsel for the applicants submitted that not only was the applicants’ case in the s 19 proceedings exceptional, especially in the amount of work required, but that, as at 13 May 1999, the first respondent could not have been in a position reasonably to estimate the time reasonably required by the applicants to prepare their reply to Mexico.  The applicants’ counsel submitted that until Mexico filed its rebuttal evidence, her Worship could not assess what matters of fact, if any, were in contest.  I do not think there is any substance in this submission.

36                  The first respondent considered, as s 19(1)(d) required her to do, whether the applicants and Mexico had had reasonable time to prepare for the conduct of the s 19 proceedings and formed the opinion that indeed they had.  Having formed that opinion (and pars (a), (b) and (c) of s 19(1) also being satisfied) she was required to conduct proceedings to determine the applicants’ eligibility for surrender.  As part of the conduct of those proceedings, her Worship fixed a timetable culminating in a hearing on 19 July, with an estimated duration of eight weeks. 

37                  One of the first respondent’s proper concerns was to ascertain how the magnitude of the applicants’ case would translate into pressures on her court.  Early on the first day, her Worship asked the applicants’ counsel for an estimate of the case, saying “I just simply for co-ordination purposes need some information”.  That, as we have seen, led to counsel’s estimate of eight weeks.  From time to time after that estimate was given, her Worship mentioned different dates to accommodate a hearing of that magnitude, eventually settling on 19 July 1999. 

38                  Having fixed upon that date, her Worship had to set a timetable.  Of necessity, that timetable had to take account of the date fixed for the hearing as well as the steps preparatory to the hearing.  In that limited sense alone, was there any element of “pre-determination”, but it does not touch upon the first respondent’s decision to fix the hearing’s commencement for 19 July 1999. 

39                  I am not persuaded that her Worship erred in stipulating a time for the provision of rebuttal evidence by Mexico.  Whilst it may be unusual for the extradition country to adduce evidence in s 19 proceedings, it does not follow that it cannot do so.  After all, paragraph (d) of s 19(1) requires a s 19 magistrate to consider the preparation time of both the person whose extradition is sought and the extradition country.  Moreover, I do not accept that the reservation by Mexico of a right to file affidavits in rebuttal constituted a fundamental change in the circumstances as presented to the first respondent.  That certainly was not how her Worship perceived the matter.  Mexico had, it seems, raised the matter of its own affidavits on 8 January 1999.  Mexico again raised the need for an “opportunity to respond” on the second day of the hearing before the first respondent.  True it is that, as the applicants pointed out, there was no express reference to the filing of rebuttal affidavits in the minutes of proposed orders that were at one stage handed up by Mexico to the first respondent.  That was because, so counsel for Mexico explained in this Court, those minutes made provision for a special mention shortly after the applicants were to file their material.  The timetable proposed in the minutes would have given Mexico the opportunity to consider the applicant’s material before it sought a date for filing its own, should that prove necessary.  The timetable that the first respondent ultimately proposed was significantly different and required Mexico to seek a date at an earlier stage in the preparation of the case.  Be that as it may, I do not think much turns on the question of the minutes.  The most that can be said is that counsel for Mexico and for the applicants were proceeding on different assumptions about Mexico’s role in the s 19 proceedings.  If, as counsel for Mr Cabal said to the first respondent, the applicants were to make “very strong criticisms” of Mexico, then it might reasonably be anticipated that Mexico would want a right to reply. 

40                  I accept that the final parameters of the s 19 proceedings depends on the nature and scope of the affidavit material filed by the applicants and the nature and scope of the rebuttal made by Mexico.  Neither matter was known on 13 May.  The provision in the first respondent’s directions for special mentions, on 23 June and 12 July, to some extent took account of that.  The applicants (and Mexico) were to be afforded an opportunity, on those dates, to raise (on appropriate material) matters relevant to the timetable and to make such applications as they might be advised.  I am not persuaded that her Worship had, as the applicants submitted, shut herself out of varying the timetable, even fundamentally, were that to prove appropriate.  As at 13 May 1999, the ambit of Mexico’s response was unknown; and it might have been a limited one, perhaps challenging only the admissibility of the applicants’ affidavit material.  As at 13 May, as the first respondent said, much was still “in the realms of speculation in terms of what ultimately will occur in these proceedings”. 

41                  In summary, I reject the applicants’ submission that the first respondent exceeded her jurisdiction in forming the opinion, on 13 May 1999, that the applicants and Mexico had had reasonable time to prepare for the conduct of the s 19 proceedings.

breach of natural justice

42                  In written submissions, the applicants advanced the contention that the first respondent had breached the duty she owed to accord natural justice.  The submission was that her Worship failed to provide a reasonable opportunity to prepare for the conduct of the s 19 proceedings in that she (1) directed a date for the commencement of the hearing of the proceedings in accordance with a pre-determined position; (2) directed that the applicants have a period of only seven days in which to file affidavits in reply to Mexico’s rebuttal evidence without affording the applicants an opportunity to be heard in relation to the time which they required; and (3) determined that Mexico was entitled to file rebuttal evidence without providing the applicants with an opportunity to be heard as to whether Mexico was so entitled. 

43                  There is, I think, no substance in these submissions, which did not figure much at the hearing in this Court.  For the reasons already given, I do not accept that the first respondent directed a date for the commencement of the s 19 proceedings in accordance with a pre-determined position.  Further, her Worship permitted the applicants full opportunity to advance all relevant submissions about that commencement date.  Secondly, the question whether it was fair in all circumstances to permit the applicants only seven days to respond to Mexico’s affidavit material was not then capable of being finally resolved.  Much depended on Mexico’s response.  The applicants were not precluded by the first respondent’s directions of 13 May from making application to vary or vacate those directions should it subsequently appear that the magnitude of Mexico’s response made the seven-day period impracticable.  Thirdly, the first respondent did not, it seems to me, rule on the nature and extent of Mexico’s right to participate in the s 19 proceedings.  Her Worship did no more than set a timetable preparatory to the hearing under s 19 of the Act.  The nature and extent of Mexico’s right, if any, to file rebuttal affidavits depended in part on the affidavits that the applicants filed.  Again, there was nothing to preclude the applicants from applying to her Worship to vacate or vary her directions when the relevant circumstances were capable of being ascertained more clearly.  The opportunity for the applicants to contend that Mexico is not entitled to rely on the rebuttal affidavits, if any, that it chooses to file has not yet closed.  Accordingly, I reject the third ground of this application.

summary of the position reached

44                  The applicants have failed to satisfy me that (1) the first respondent did not give any or any adequate consideration to matters relevant to the exercise of her discretion regarding the applicants’ adjournment application;  (2) her Worship exceeded the jurisdiction conferred on her by s 19 of the Act; or (3) her Worship denied the applicants natural justice.  That is, the applicants have failed to make out any basis for the relief they seek.

45                  It is to be borne in mind that there are strong discretionary reasons why this Court should not intervene in a case such as this.  I have already referred to the principles against fragmentation and to the public interest in the expeditious and fair resolution of extradition proceedings in Australia.  For reasons given in matters V 120 of 1999, V 121 of 1999 and V 222 of 1999, there is not shown in this case any exceptional or extraordinary circumstance that would justify the Court in intervening in the s 19 proceedings conducted by the first respondent.  Further, a decision in the s 19 proceedings in the applicants’ favour would secure their release from custody, subject to rights of review:  s 19(10) and s 21.  A similar consequence may follow from a result favourable to the applicants in this Court.  An important consideration, in that respect, is that if the s 19 proceedings proceed before the first respondent in accordance with the timetable referred to earlier in these reasons, then the applicants will not be precluded from pursuing any of the issues that have been raised in the proceedings in this Court.  In any event, as already noted, the applicants were not precluded by the first respondent’s directions of 13 May from applying to her, on appropriate material, for a variation of her directions.  Whilst I accept that there are issues raised in this Court that cannot be dealt with by the first respondent, the proceedings in which those issues are raised will not be rendered nugatory by the continued conduct of the s 19 proceedings.  Whilst the possibility remains that the applicants may be put to considerable and ultimately unnecessary expense and inconvenience by the continuance of the s 19 proceedings, that is not a sufficient reason for the Court to intervene. 

46                  Accordingly, I would dismiss the application with costs. 

Associate:

Dated:              6 July 1999