FEDERAL COURT OF AUSTRALIA

Peniche v Vanstone [1999] FCA 916

EXTRADITION – challenge to validity of notices under s 16 of Extradition Act 1988 – effect of stays of arrest warrants in Mexico – meaning of warrants “in force” – whether opinion that extraditable persons could be reasonably held – validity of requests made by requesting country – whether only one request at a time permissible – whether requesting country under duty to disclose stays and limitations problems – whether breach of natural justice regarding refusal of access to extradition documentation.

INTERLOCUTORY INJUNCTIONS – whether serious question to be tried – balance of convenience – principle against fragmentation of proceedings.

Extradition Act 1988 (Cth), s 6, s 16, s 19

Extradition (United Mexican States) Regulations 1991, reg 4

Treaty on Extradition between Australia and the United Mexican States, Arts 2, 8, 16, 17 and 19(4)

American Cyanamid Co v Ethicon Ltd [1975] AC 396 referred

Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 referred

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 referred

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

Foster v Attorney-General (Cth) (1997) 97 A Crim R 560 discussed

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

L. Joseph Pty Ltd v Gray (1939) 56 WN (NSW) 190 discussed

Pikor v Smith [1982] Tas. R 240 discussed

Gray v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 351 discussed

Zoeller v Attorney-General (Cth) (1987) 16 FCR 153 referred

Zoeller v Federal Republic of Germany (1989) 23 FCR 282 referred

R v Weil (1882) 9 QBD 701 cited

Harris v Attorney-General (Cth) (1994) 52 FCR 386 applied

Annetts v McCann (1990) 170 CLR 596 referred

May v Deputy Commissioner of Taxation (unreported, Branson, Finn and Kenny JJ, 21 May 1999)  [1999] FCA 287 referred

Kioa v West (1985) 159 CLR 550 referred

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

South Australia v O’Shea (1987) 163 CLR 378 referred

Cornall v AB (A Solicitor) [1995] VR 372 referred

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

The Queen v Iorlano (1983) 151 CLR 678 referred

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

The Queen v Elliott (1996) 185 CLR 250 referred

Seymour v Attorney-General (Cth) (1984) 4 FCR 498 referred

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

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

Bullock v Federated Furnishing Trades Society of Australasia (No. 1) (1985) 5 FCR 464 referred

MARCO PASINI BERTRAN v HON. AMANDA VANSTONE & ORS

V 120 of 1999

CARLOS CABAL PENICHE v HON. AMANDA VANSTONE & ORS

V 121 of 1999

CARLOS CABAL PENICHE v HON. AMANDA VANSTONE & ORS

V 222 of 1999

KENNY J

MELBOURNE

6 JULY 1999

THE COURT ORDERS THAT:

1.       Application for interlocutory injunctions, notice of which was given by par 3 of the applicant’s notice of motion dated 28 May 1999, be dismissed.

2.       The applicant pay the first respondent’s costs of and incidental to the said application.

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

THE COURT ORDERS THAT:

1.      Application for interlocutory injunctions, notice of which was given by par 3 of the applicant’s notice of motion dated 28 May 1999, be dismissed.

2.      The applicant pay the first respondent’s costs of and incidental to the said application

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

THE COURT ORDERS THAT:

1.      Application for interlocutory injunctions, notice of which was given by par 3 of the applicant’s notice of motion dated 28 May 1999, be dismissed.

2.      The applicant pay the first respondent’s costs of and incidental to the said application.

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

REASONS FOR JUDGMENT

1                     In each of these matters (V 120 of 1999, V 121 of 1999 and V 222 of 1999) the applicant makes application, upon notice of motion, for interlocutory injunctive relief against the first and fourth respondents.  In substance, each application seeks orders restraining the first respondent from taking any step in reliance on notices issued by her under s 16 of the Extradition Act 1988 (Cth) (“the Act”) and restraining the fourth respondent from conducting surrender proceedings under s 19 of the Act.  Each notice of motion is supported by numerous affidavits, including affidavits of George Defteros sworn on 19 March 1999 (in V 120 and 121), 29 March 1999 (in V 120), 4 May 1999 (in V 121), 10 May 1999 (in V 222), 31 May 1999 (in V 120, V 121 and 222), two on 4 June 1999 (in V 120) and one on 4 June 1999 (in V 121 and V 222) and on 8 June 1999 (in V 121 and V 222).  There were also two affidavits sworn by Alberto Zinser Cieslik (Mr Zinser), the first on 15 June 1999 and the second on 16 June 1999, and filed in all matters.  There was an affidavit in opposition sworn by Maria Ngo on 10 June 1999 and filed in all matters.  There was also an affidavit sworn by Rodolfo de la Guardia Garcia (Mr de la Guardia) on 13 April 1999 and filed in V 120. 

2                     The learned magistrate presently charged with responsibility for conducting the surrender proceedings under s 19 of the Act has indicated that she is content to abide by the decision of the Court and does not wish to participate otherwise in the proceedings. 

background facts

3                     The circumstances in which the interlocutory injunctive relief is sought can be briefly stated.  The applicants, Marco Pasini Bertran (“Mr Pasini”) and Carlos Cabal Peniche (“Mr Cabal”) are citizens of the United Mexican States (“Mexico”).  They left Mexico some years ago and have not returned there since. 

Mr Cabal

4                     Between 31 August 1994 and 15 May 1998, a total of thirteen warrants for the arrest of Mr Cabal were issued in Mexico by Judges of the Federal District in Criminal Matters.  The warrants for arrest alleged the commission of banking offences relating to embezzlement (under Article 112 Section V in connection with Articles 113 and 114 of the Law of Credit Institutions) and fraud (under Article 386 of the Federal Criminal Code).  Mr Cabal was arrested in Australia pursuant to a provisional arrest warrant (“PAW”) on 11 November 1998.  The PAW was issued on 10 November 1998 under s 12 of the Act on the application of Mexico.  Since 11 November 1998, Mr Cabal has been held in custody in Port Phillip Prison, pursuant to orders for remand made by a magistrate under s 15(2) of the Act. 

5                     By Diplomatic Note dated 31 December 1998 Mexico requested Mr Cabal’s extradition, relying on the thirteen arrest warrants which had issued against him in Mexico.  The supporting documents in relation to the request were received by the Commonwealth of Australia on 6 January 1999.  On 7 January 1999, the first respondent issued a notice pursuant to s 16(1) of the Act (“the first Cabal notice”) directed to the magistrate before whom Mr Cabal was brought, stating that the request had been received from Mexico in relation to Mr Cabal.  A copy of that notice and the supporting documents were served on Mr Cabal’s then solicitors in Australia on 8 January 1999. 

6                     Between 13 April 1998 and 7 January 1999 four additional warrants of arrest were issued in Mexico for Mr Cabal’s arrest in respect of taxation and money laundering offences (“the additional arrest warrants”).  One of the additional arrest warrants was the same as one of the warrants in respect of which the first Cabal notice was issued.  On 19 February 1999, whilst Mr Cabal was in custody, Mr Cabal was purportedly arrested again and brought before a magistrate pursuant to a second PAW.  The second PAW was issued under s 12 of the Act by a magistrate on 16 February 1999 in relation to the additional arrest warrants. 

7                     By Diplomatic Note dated 11 February 1999, Mexico again requested Mr Cabal’s extradition, relying on the additional arrest warrants.  On 30 March 1999, the first respondent issued a second notice in respect of Mr Cabal under s 16(1) of the Act (“the second Cabal notice”) directed to the magistrate before whom Mr Cabal was brought, stating that the request had been received from Mexico in relation to Mr Cabal.  A copy of that notice and the supporting documents were served on Mr Cabal’s solicitors under cover of a letter dated 30 March 1999. 

Mr Pasini

8                     On each of 18 January 1996 and 29 August 1996, a warrant for the arrest of Mr Pasini was issued in Mexico by the Third Unitary Criminal Court of the First Circuit in the Federal District.  The first arrest warrant alleges two breaches by Mr Pasini of Article 112 Section V of the Law of Credit Institutions.  The second arrest warrant alleges a breach by Mr Pasini of Article 400 Section II of the Federal Criminal Code.  In both warrants the alleged breaches relate to activities by Mr Pasini in connection with the activities or affairs of Mr Cabal.

9                     Mr Pasini was arrested in Australia pursuant to a PAW on 27 November 1998.  That PAW was issued on 27 November under s 12 of the Act on the application of Mexico.  Since 27 November 1998, Mr Pasini has been held in custody in Port Phillip Prison, pursuant to orders for remand made by a magistrate under s 15(2) of the Act. 

10                  By Diplomatic Note dated 20 January 1999 Mexico requested Mr Pasini’s extradition, relying on the arrest warrants which had been issued against him in Mexico.  On 21 January 1999, the first respondent issued a notice pursuant to s 16(1) of the Act (“the Pasini notice”) directed to the magistrate before whom Mr Pasini was brought, stating that the request had been received from Mexico in relation to Mr Pasini.  A copy of that notice and the supporting documents were served on Mr Pasini’s then solicitors in Australia on 22 January 1999. 

The Amparo proceedings and the stays

11                  Meanwhile, Mr Cabal’s legal representatives in Mexico instituted proceedings known as “incidental suspension proceedings” in conjunction with what are known in Mexico as “Amparo proceedings”.  The Amparo proceedings are proceedings challenging the lawfulness of the Mexican arrest warrants.  On 18 December 1998 a Judge in Mexico made interim (or provisional) orders that the execution of the arrest warrants against Mr Cabal be stayed.  They were stayed upon conditions, discussed below.  On 1 February 1999, the provisional stay was made final (or definitive) until the determination of the Amparo proceedings.

12                  On 22 February 1999, a Judge in Mexico also provisionally stayed two of the three additional arrest warrants.  A third had, as already noted, been previously stayed.  In consequence, only one of the additional arrest warrants is not now stayed, although Amparo proceedings have been issued in relation to it.

13                  Mr Pasini’s legal representatives in Mexico also instituted “incidental suspension proceedings” in conjunction with Amparo proceedings.  On 20 January 1999 and, in order to correct an error, again on 23 January, a Judge in Mexico made provisional orders that the arrest warrants against Mr Pasini be stayed.  There were conditions of the stay, also discussed below.  On 29 March 1999, the provisional stay was made final (or definitive) until the determination of the Amparo proceedings.  I also note that on 3 March 1999, a Twelfth Federal District Judge for Criminal Matters in Mexico City made a declaration to the effect that the warrant issued on 18 January 1996 was still in force and pending for execution. 

the questions raised

14                  In all three matters, the applicants challenge the validity of a notice issued by the first respondent under s 16 of the Act.  The notice under challenge in V 120 of 1999 is the Pasini notice dated 21 January 1999.  The notice under challenge in V 121 of 1999 is the first Cabal notice dated 7 January 1999.  The notice under challenge in V 122 of 1999 is the second Cabal notice dated 30 March 1999. 

15                  In the case to be put by the applicants at the final hearing of these applications, it is to be contended as follows. 

(1)        All the notices issued under s 16 are invalid because (a) they are based on the erroneous opinion that each of the applicants is an “extraditable person”, and (b) they were issued in breach of the duty of the Attorney-General to observe the requirements of procedural fairness. 

(2)        The extradition requests made by Mexico in respect of the applicants are invalid on account of Mexico’s failure to disclose (a) the Amparo stays, and (b) that limitation periods for most of the alleged offences have expired.

(3)        The second extradition request made by Mexico in respect of Mr Cabal is invalid because it was made at a time when the first extradition request by Mexico in respect of Mr Cabal was still on foot.

(4)        The first Cabal notice issued under s 16 is invalid because it was not given within the forty-five day period required by s 17(2) of the Act.  (At this interlocutory stage, the applicants made no, or virtually no, submissions on this matter.)

16                  At the hearing of the motions for interlocutory relief, the applicants submitted that, by reason of the abovementioned matters, there is a serious question to be tried and that the balance of convenience favours the grant of interlocutory injunctive relief:  see American Cyanamid Co v Ethicon Ltd [1975] AC 396 at 407-8 and Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153-4.  The parties accepted that the Court had jurisdiction to deal with the matters in question. 

legislative framework

17                  The parties’ respective submissions depend on the provisions of the Act, on the Extradition (United Mexican States) Regulations 1991 (“the Regulations”) and on the Treaty on Extradition between Australia and the United Mexican States (“the Treaty”), which is set out in a Schedule to the Regulations.  For the readers’ convenience, I set out below the provisions which are critical to an understanding of the submissions before me. 

Overview of the Act

18                  Section 3 of the Act states that the principal objects of the Act are (1) codification of the law “relating to the extradition of persons from Australia to extradition countries and New Zealand”, (2) facilitation of the making of requests for extradition by Australia to other countries, and (3) enabling Australia to carry out its obligations under extradition treaties.

19                  Mexico is an extradition country as defined by s 5 of the Act:  Regulations, reg 4.  When an extradition country seeks extradition of a person from Australia, it must make application pursuant to s 12(1) of the Act to a magistrate for the issue of a warrant for the arrest of the person.  The magistrate must first be satisfied, on the basis of information given by affidavit, that the person is an “extraditable person” in relation to the extradition country:  s 12(1)(b).  The term “extraditable person” is defined by s 6 of the Act.  Section 6 relevantly

provides:

Where: 

(a)    either:

(i)                 a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act; or

…

(b)    the offence or any of the offences is an extradition offence in relation to the country; and

(c)     the person is believed to be outside the country;

the person is, for the purposes of this Act, an extraditable person in relation to the country.

If the magistrate is satisfied as required by s 12(1) of the Act, then the magistrate must issue a warrant and send forthwith to the Attorney-General a report of the issue of the warrant (s 12(2)). 

20                  Where an extradition country seeks the extradition of a person in Australia, it will also need to make an extradition request to the Attorney-General (s 16(1)).  If the extradition is to proceed, then the Attorney-General must issue a notice directed to a magistrate stating that the request has been received:  s 16(1) and s 19(1)(b).  Section 16(2) prescribes the conditions governing the Attorney-General’s power to give the notice.  The subsection provides:

The Attorney-General shall not give the notice:

(a)    unless the Attorney-General is of the opinion:

(i)                 that the person is an extraditable person in relation to the extradition country; and

(ii)               that, if the conduct of the person constituting the extradition offence, or any of the extradition offences, for which surrender of the person is sought, or equivalent conduct, had taken place in Australia at the time at which the extradition request was received, the conduct or the equivalent conduct would have constituted an extradition offence in relation to Australia; or

(b)    if the Attorney-General is of the opinion that there is an extradition objection in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought.

An extradition offence is defined, in s 5, as an offence for which the maximum penalty is either death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months. 

21                  The Attorney-General may receive an extradition request either before or after the person whose extradition is sought is arrested pursuant to a warrant issued under s 12(1).  If the Attorney-General decides before arrest, but after a warrant is issued, not to issue a s 16 notice, the Attorney-General directs the magistrate to cancel the warrant (s 12(3)).  If, however, the person has been arrested and is remanded in custody or on bail pursuant to s 15(2), and the Attorney-General decides not to issue a s 16 notice, then the Attorney-General directs the magistrate to release him or her from custody or discharge the recognisances on which the bail was granted (s 17(1)).  Where the Attorney-General issues a s 16 notice and the person has been arrested and is on remand, the person may consent to being surrendered under s 18, alternatively proceedings may be conducted by a magistrate under s 19.  Subsection 19(1) provides:

Where:

(a)    a person is on remand under section 15;

(b)    the Attorney-General has given a notice under subsection 16(1) in relation to the person;

(c)     an application is made to a magistrate by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and

(d)    the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;

the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.

Where the magistrate determines that the person is eligible for surrender to the extradition country in relation to an extradition offence (or offences), a warrant is issued committing the person to prison to await surrender or release pursuant to a determination by the Attorney-General under s 22(2):  s 19(9)(a).  If the magistrate determines that the person is not eligible for surrender, then the person is released and the Attorney-General so notified (s 19(10)).  There is provision in s 21 for judicial review of the magistrate’s order. 

22                  Before conducting s 19 proceedings, the magistrate must be satisfied that the conditions of jurisdiction set out in s 19(1) are satisfied.  Amongst other things, the Attorney-General must have given notice under s 16(1) in relation to the person and the magistrate must consider that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings.  The former matter is in issue in these proceedings.  The latter matter is in issue in V 280 of 1999.

23                  In addition to the matters referred to in s 19(2)(a), (b) and (c) of the Act, the magistrate must decide whether the person whose extradition is sought has satisfied him or her that “there are substantial grounds for believing that there is an extradition objection in relation to the offence”:  s 19(2)(d).  The term “extradition objection” is defined in s 7 and extends to circumstances where:

(b)   the surrender of the person, in so far as it purports to be sought for the extradition offence, is actually sought for the purpose of prosecuting or punishing the person on account of his or her … political opinions or for a political offence in relation to the extradition country;

(c)    on surrender to the extradition country in respect of the extradition offence, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her … political opinions; …

The applicants say that they intend to pursue those objections before the magistrate in any s 19 proceedings. 

24                  Where a person has been committed to prison in accordance with s 19(9), that person becomes an “eligible person” within the meaning of s 22(1) and is eligible for surrender.  As soon as is reasonably practicable after a person becomes an “eligible person”, the Attorney-General is required to determine whether the person is to be surrendered (s 22(2)).  The Attorney-General is permitted to issue a surrender warrant only if the conditions set out in s 22(3) are met:  s 22(3).  Those conditions include that:

(a)     the Attorney-General is satisfied that there is no extradition objection in relation to the offence;

…

(d)      the extradition country concerned has given a speciality assurance in relation to the person;

…

(f)    the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence.

If any of the conditions prescribed by s 22(3) is not met, the Attorney-General orders release of the person:  s 22(5).

Overview of the Regulations and the Treaty

25                  Regulation 5 of the Regulations provides:

The Act applies in relation to Mexico subject to the Treaty on Extradition between Australia and Mexico done at Canberra on 22 June 1990 (being the treaty a copy of the English text of which is set out in the Schedule).

The Treaty is relevant to a number of the issues raised by the applicants.  It suffices to refer to arts 2, 8, 16, 17 and 19.  Article 2(1) relevantly provides:

For the purposes of this Treaty, extraditable offences are those offences, however named, which are punishable under the laws of both Parties by penalty no less severe than deprivation of liberty for a maximum period of at least one year.

Article 8 provides:

Extradition shall not be granted when criminal proceedings can no longer be instituted by reason of lapse of time or any other cause in accordance with the law of either Party.

Article 16(1) stipulates the documents which must accompany the extradition request, including

the original or authenticated copy of the warrant of arrest, warrant of commitment, conviction or sentence, if imposed, or any other judicial order made under the laws of the Requesting Party which authorizes the arrest of the person and from which the existence of the offence and its commission by the person sought may be reasonably inferred.  [Art 16(1)(b)] 

Article 17 provides that if the details or documents sent with the request for extradition are insufficient or defective, then the Requested Party “shall inform the Requesting Party of the omissions or defects which may be corrected, before the request will be submitted to the judicial authority”.  Article 19(4) provides that where a person is provisionally arrested, he or she may be “discharged if on the expiration of 60 days the Requested Party has not received the request for extradition and the documents mentioned in Article 16 or documents requested pursuant to Article 17”.

invalidity of s 16 notices

The effect of the Amparo stays

26                  The first basis upon which the validity of the s 16 notices issued by the first respondent is challenged concerns the effect of the Amparo stays.  The issue relating to the effect of those stays is said by the applicants to arise in the following way.

27                  Before the Attorney-General can issue a notice under s 16 of the Act, the Attorney-General must be of the opinion that “the person is an extraditable person in relation to the extradition country”:  s 16(2)(a)(i).  Counsel for the applicant submits that neither of the applicants is an “extraditable person” within the meaning of s 6 of the Act (set out above).  The applicants’ counsel submits that the words “warrant …  in force for the arrest of a person” in the definition of “extraditable person” in s 6(a)(i) “do not encompass a warrant that, according to the laws of Mexico, has been stayed pursuant to the Amparo laws of that country”.  That is because, so counsel submits, the words “warrant … in force for the arrest of a person” in s 6(a)(i) can refer only to a warrant that may be immediately executed upon the person whose arrest was authorised by it.

28                  In the case of Mr Pasini, the effect of the stay, provisionally granted on 20 January, alternatively on 23 February, and definitively granted on 29 March 1999, is, so his counsel submits, that he is not immediately arrestable in Mexico under the Mexican warrants for his arrest.  It was to those Mexican warrants that the first respondent had regard when she issued the Pasini notice under s 16(1) of the Act. 

29                  In the case of Mr Cabal, the effect of the stay, granted provisionally on 18 December 1998 and definitively on 1 February 1999, is, so his counsel submits, that he is not immediately arrestable in Mexico under any of the thirteen Mexican warrants for his arrest.  It was to those Mexican warrants that the first respondent had regard when she issued the first Cabal notice.  The effect of the stay provisionally granted on 22 February 1999 in respect of two of the additional arrest warrants is that Mr Cabal is not, so his counsel submits, immediately arrestable under those warrants.  It was to those warrants (amongst others) that the first respondent had regard when she issued the second Cabal notice.  (A stay has, so the applicants’ counsel says, been requested in respect of the only Mexican warrant that is not subject to a stay order but the stay application has not yet been heard.)

30                  If the construction of s 6(a)(i) for which the applicants contend is accepted, then, so the applicants’ counsel submits, it is immaterial that there is one warrant for Mr Cabal’s arrest that is capable of immediate execution.  If the issue of the s 16 notice on the basis of the additional arrest warrants is vitiated by the existence of the stays in respect of three of the four warrants, then the notice will, so it is said, fail for all purposes.

31                  The proceedings instituted by the applicants in Mexico under the law of Amparo challenged the validity of the Mexican warrants for their arrest.  The proceedings have, it seems, a constitutional dimension in Mexican law.  The effect in Mexican law of the stays that the Mexican courts have granted is, so the applicants submit, to deprive the warrants of force and effect until such time, if at all, that their legal efficacy is revived. 

32                  In order to make good that submission for interlocutory purposes, the applicants rely on statements by Marco Antonio Del Toro Carazo (Mr Del Toro).  In each matter, a statement by him is exhibited to an affidavit sworn by Mr Defteros.  At this interlocutory stage, no issue is taken as to admissibility.  Mr Del Toro’s opinion regarding the effect in Mexican law of the Amparo stays is to the following effect. 

(1)       The immediate effect of an Amparo stay with regard to a warrant for arrest is to prevent the responsible authority from detaining a person under the warrant, i.e., from executing the warrant. 

(2)       An Amparo stay deprives a warrant of arrest of “force” (in Spanish “en vigencia – vigente”) in the sense that the responsible authority is precluded by the stay from complying with the warrant.  In Mr Del Toro’s words (via Spanish to English translation) “[b]y in force we should understand a law or an act of authority possessing the force to oblige, which is valid during a specific period of time, and which is enforceable”. 

(3)       Only when the stay is denied or revoked by a subsequent decision, as in the substantive Amparo proceedings, can the responsible authority recover power to execute an arrest warrant previously stayed.

(4)       Criminal liability attaches to a responsible authority which fails to respect a stay. 

(5)       The writ under which a stay is granted takes effect at the instant it issues.  Any warrant for arrest which is the subject of a stay loses its “force” in the sense already mentioned at the moment the stay is granted.  A definitive stay continues the effect of a provisional stay.

(6)       The cumulative effect of the Amparo stays (provisional and definitive) on the thirteen warrants for the arrest of Mr Cabal is that the responsible authority has been without power to execute the warrants since 18 December 1998.  The stays in respect of the additional arrest warrants have a similar effect. 

(7)       The cumulative effect of the Amparo stays (provisional and definitive) on the warrants for the arrest of Mr Pasini is that the responsible authority has been without power to execute the warrants since 20 January 1999.

(8)       In respect of Mr Cabal, the only part of each stay that is conditional on his return to Mexico is that regarding his obligations in the event he returns to Mexico.  Similarly, in respect of Mr Pasini, the only part of each stay that is conditional on his return to Mexico is that regarding his obligations in the event he returns to that country.

(9)       The declaration by the Twelfth District Judge for Penal Matters in the Federal District that a warrant for the arrest of Mr Pasini is still “in force” is to be understood as no more than a declaration that the warrant is still pending for execution.  

(In affidavits filed in each application, Mr Zinser, another Mexican lawyer, deposed that he shared Mr Del Toro’s opinion.)

33                  The first respondent does not accept the description of the effect of the Amparo stays given by Mr Del Toro.  The matters in contest are outlined by Mr de la Guardia in a statement exhibited to an affidavit sworn by Ms Ngo on 10 June 1999 and filed in each matter.  Mr de la Guardia states, amongst other things, that “the purpose of the … Stays is to observe that the action of the Authority allegedly violating the Individual Rights remains untouched to be analyzed by the District Judge so as to issue an Amparo resolution”.  Mr de la Guardia adds that there are conditions attaching to each of the stays and that, in general terms, they require the applicants to (1) return to Mexican territory; (2) “pay a bail”; (3) “agree with the jurisdiction of the Judges”; (4) “appear before Criminal Judges in order to render a statement every time it is necessary”; and (5) “in certain cases, … accept being under the custody of the police”.  Mr de la Guardia continues

as long as the conditions and requirements established in the … Stays issued by the District Judges are not accomplished, all the arrest warrants issued for Cabal and Pasini are in full force and effect.  Additionally, such warrants have enough legal value for them to be arrested and to be forced to appear before the Criminal Judges in order to continue the criminal prosecution[s].  The unfulfilment of and the breaching to the conditions of the Stays will cause their immediate arrest. 

Mexican Amparo courts’ view of the purpose of extradition processes and of their jurisdiction with regard to them

34                  The matters in contest between the applicants and the first respondent will, presumably, be more fully ventilated at the final hearing.  I note, in passing, that there is little in Mr Del Toro’s statement which discusses the significance in Mexican law of the statements (seemingly contrary to his opinion) appearing in a translation (exhibited to Mr Defteros’s affidavit of 19 March 1999) of the resolution of the Mexican court which, on Mr Cabal’s application, granted the definitive stay on 1 February 1999.  Whilst the resolution granted a definitive stay of the thirteen warrants for the arrest of Mr Cabal, it apparently denied a provisional suspension of “the request for extradition of [Mr Cabal and] any acts performed in order to obtain the extradition of [Mr Cabal]”.  Such suspension was, it seems, denied principally on the ground that the extradition was a “public matter” and its suspension would infringe certain constitutional laws.  The judge noted that international treaties (under which, semble, the extradition process was being conducted) “are incorporated in the Political Constitution of the United States of Mexico, as it is provided for in section 133 of the Constitution which both the State and the society are engaged in complying with and observing, therefore the collective interest must prevail over the private.”  As translated, the judge went on to say:

To strengthen this it must be said that the acts performed by a foreign government with the aim of putting at the Mexican authorities’ disposal an individual against whom there is an arrest warrant awarded by a competent judge, cannot be suspended by a District Judge, because the jurisdiction of validity of the Law for the Protection of Constitutional Guarantees [the Amparo Law] is determined by the principle of territoriality, that is to say that it is limited to the national territory and cannot have effect outside our borders.

35                  At this stage of the proceedings, there is also a translation of the stay provisionally granted on 20 January 1999 in respect of Mr Pasini.  It too apparently refers to a request, made by Mr Pasini’s legal representatives, for a stay in respect of the extradition process and to the fact that that request was denied upon a number of grounds, including that the acts constituting the extradition process had “the aim of putting [Mr Pasini] at [the] authorities’ disposal in the national territory so as to continue with the due process”.

36                  If translated correctly, such judicial observations as those set out above would seem to call for some explanation as to their significance for Mexican legal purposes.  It suffices at this stage of the proceedings merely to note the first respondent’s submission that the stays do not have present effect, and, in terms, only prevent immediate execution of the Mexican arrest warrants when the applicants enter Mexican jurisdiction.

Are the warrants in force for the purpose of s 6(a)(i) of the Act?

37                  The case for the applicants, which thus far depends upon the evidence of Messrs Del Toro and Zinser, is that, as the Mexican arrest warrants are not in force under the law of Mexico, they are not, in consequence, “in force” for the purpose of s 6(a)(i) of the Act.  This is because the words “in force” in s 6(a)(i) are properly to be construed as referring only to a warrant that can lawfully be executed immediately in Mexico and, as the evidence of Mr Del Toro and Mr Zinser shows, none of the stayed warrants can be executed at this moment in that country. 

38                  For the purposes of these applications for interlocutory relief, I am prepared to accept that, under Mexican law, none of the warrants subject to the Amparo stays could be executed against the applicants if the applicants were at this very moment to enter Mexican jurisdiction.  Is it open, however, to construe the expression “warrant … in force for the arrest of a person” in the way for which the applicants contend?  The applicants place some emphasis on the fact that s 6(a)(i) refers to “a warrant … in force for the arrest of a person”.  It is not enough, so they submit, that a warrant of arrest is in existence and has not been declared invalid:  a warrant is not relevantly “in force” if it does not provide lawful authority for the immediate arrest of a person.  After all, the purpose of the Act, so the applicants submit, is “to enable persons who are liable to arrest for immediate prosecution or punishment in other countries to be arrested for extradition in Australia”.  In this connection, the applicants refer to art 16.1(b) of the Treaty.  They also refer to Parliament’s concern, evident in the Act, to protect the interests of a person whose extradition is sought as well as those of the requesting State.  “One important safeguard”, so the applicants say, “is the requirement in section 6(a)(i) that a warrant be in force for the arrest of a person before they [sic] can be amenable to extradition.  If, according to laws of the requesting country, the persons could not be arrested if they were to be returned there, this safeguard must produce the result that they are not amenable to extradition to the country”.  At this stage of the proceedings at least, I am not persuaded that the last statement is necessarily correct. 

The Minister’s opinion

39                  Be that as it may, one of the main obstacles in the applicants’ path is, it seems to me, that each of the s 16 notices issued by the first respondent states she is of the opinion referred to in s 16(2)(a)(i), namely, that the relevant applicant is an extraditable person in relation to the extradition country.

40                  The power to issue a s 16 notice depends, amongst other matters, on the fact that the opinion is held.  The first respondent submits that, in order to succeed on this aspect of their case, the applicants would have to demonstrate that no person in the position of the first respondent on the dates when she issued the notices, having the material which was available to her, could reasonably have held that opinion:  see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229 and 234; R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 435; Foster v Attorney-General (Cth) (1997) 97 A Crim R 560 at 568; and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 at 609.  The applicants submit that they will succeed if they are able to show that the first respondent necessarily asked herself the wrong question in forming the opinion described in s 16(2)(a)(i) of the Act.  For present purposes, I accept that submission.  I also accept that, for present purposes, the applicants’ evidence as to the effect of the Amparo stays would be relevant to a challenge to the validity of the s 16 notices if that evidence showed that the first respondent asked herself the wrong question, or that she could not reasonably have been of the opinion referred to in s 16(2)(a)(i).  The evidence as to the effect of the stays in Mexican law would be irrelevant, however, if, on no view, could s 6(a)(i) of the Act bear the construction for which the applicants contend.  That, in summary, is the case for the first respondent. 

41                  For the purpose of these interlocutory applications, it is common ground that the Mexican warrants are valid.  The case for the first respondent is that the expression “warrant … in force for the arrest of a person” cannot bear the meaning the applicants seek to give it.  The expression contains, the first respondent has observed, a noun with two qualifications (“in force” and “for the arrest of a person”).  Each qualification applies to the word “warrant”.  In consequence, the expression could, so the first respondent submits, read (without changing its meaning) “warrants for the arrest of a person which are in force” or “valid warrants for the arrest of a person”.  According to the first respondent, the words “in force” simply mean “valid” or “operational”:  cf definition of “force” in Oxford English Dictionary (“in force”, 8c) and Macquarie Dictionary.  The warrants in question are valid and operational in two senses:  first, the stays do not, so the first respondent submits, take effect until the applicants enter the jurisdiction of Mexico and, secondly, if they were to fail to comply with the conditions of the stays once within the jurisdiction, then the applicants would be liable to arrest under the warrants.  Put simply, the stay qualifies the warrant:  if there were no warrant, then there would be no need for a stay. 

42                  In support of those submissions, the first respondent relies on L. Joseph Pty Ltd v Gray (1939) 56 WN (NSW) 190, Pikor v Smith [1982] Tas. R 240 and Gray v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 351. 

43                  The first case concerned the effect of a stay of proceedings under the Moratorium Act 1932 (NSW) on a writ of fieri facias.  Bavin J rejected a submission to the effect that, after the sheriff had received notice of the stay, his continued possession of goods earlier taken under the writ was unlawful.  His Honour said at 195-6:

A stay of proceedings, as I understand it, does not require anything to be undone that has been legally done.  It does not require the party against whom it operates, to alter the legal position that has already been created.  It merely prevents anything from being done that would in any way alter that position.

…

I think the effect of the stay is to leave the position in fact, just as it is, and to forbid the Sheriff to take any step which would alter the legal position.

44                  In Pikor v Smith, Cox J held that a warrant of arrest under s 78(4) of the Justices Act 1959 (for non-payment of a fine) was valid, although issued pursuant to proceedings that were stayed after the warrant was issued. 

45                  In Gray v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 351, Burchett J considered the effect of a stay on a deportation order, observing at 353: 

Mr Gray then argues that, since the deportation order has been stayed pending the hearing of his appeal, it is not ‘in force’ within the meaning of s 93(1) [of the Migration Act 1958].  But that is to mistake the effect of the stay.  Although the Minister must temporarily hold his hand, the order has not ceased to be in force.  Its ultimate operation is merely suspended.  This point, too, fails, and the arrest was lawful. 

If, so the first respondent submits, a stay in Australian law does not deprive the primary order of the character of being “in force”, then, a fortiori, the stays granted in the Mexican courts do not deprive the Mexican arrest warrants of that character.  Further, the warrants are, so the first respondent claims, subject to declarations of validity by Mexican courts.  (The applicants submit that Gray is distinguishable, because that case did not involve any stay on an arrest warrant, and the arrest warrant in Gray had, in any event, been executed prior to the stay order.  I accept that, of course, there are those differences between the present cases and Gray.  It is another question, however, whether those differences diminish the force of Burchett J’s remarks, to the extent that they may relate to this case.)

46                  In summary, the first respondent submits that the construction of s 6(a)(i) propounded by the applicants is untenable; and, in consequence, the applicants cannot show that it was not reasonably open to the first respondent to have held the opinion that the warrants were in force at the time she issued the s 16 notices under challenge in the proceedings.  In any event, so the first respondent submits, she did not know anything of the Amparo stays at the time she issued the Pasini notice and the first Cabal notice.  What is more, given the material before her at the time she made her decision to issue the second Cabal notice, the existence of the Amparo stays could not have compelled the conclusion that Mr Cabal was not an extraditable person. 

47                  Having regard to the parties’ respective submissions, is there a serious issue to be tried arising from the existence of the Amparo stays?  The evidence as to the Mexican law is not yet complete and, indeed, the terms of all of the stay orders are not yet in evidence.  In this state of affairs, it is not the Court’s function to seek to resolve conflicts in the evidence as to the state of Mexican law.  Although, at this stage of the proceedings, I do not think that the applicants’ construction point (in relation to s 6(a)(i)) is a particularly strong one, it is fairly arguable.  The evidence as to what lay before the first respondent at the time she issued the notices under s 16(1) may also not be complete.  For the purposes of these applications for interlocutory relief, I am prepared to accept that the applicants have shown that there is a serious question to be tried in relation to the Amparo stays.

the remaining issues

48                  Being of the view that there is a serious question to be tried, at least in relation to the Amparo stays, it is, perhaps, not strictly necessary to examine the other issues that the applicants seek to agitate in these proceedings.  I do so below, for the purpose of determining whether there are other claims made by the applicants which, alone or in conjunction with the Amparo stay point discussed above, might tip the balance of convenience in the applicants’ favour.

(i)                 Period of limitations (prescription)

49                  The applicants submit that most of the offences (all, in the case of Mr Pasini) for which extradition is sought are statute-barred.  That is, the relevant limitation periods for filing criminal complaints have expired.  Reference is made to art 8 of the Treaty and to statements made by Jose Luis Izunza Espinosa (Mr Izunza) which, with some variations, are exhibited to an affidavit of Mr Defteros filed in each matter.  The expiry of limitation periods constitutes a second reason, so the applicants submit, why neither of them is an “extraditable person” within the meaning of s 6 of the Act.

50                  The first respondent submits that that issue is not relevant to the opinion she was required to form under s 16(2) of the Act.  Having regard to the terms of s 6 and s 16(2), that may ultimately be accepted (although I have and express no concluded view on the matter).  (I note too that the first respondent also took issue with the applicants’ description of the applicable Mexican law and as to whether she had material before her when she issued the notices that would have indicated that the charges were, or might be, statute-barred.)

(ii)               Maximum Penalties

51                  At this stage, it appears that the applicants’ claims in relation to the penalties issue are weak. 

(iii)             Valid request under s 16(1)?

52                  The discretion to issue a notice under s 16(1) depends not only on the formation of the opinion described in s 16(2) but also on the receipt of an extradition request from an extradition country in relation to a person, as required by s 16(1) of the Act.  Mexico has, it seems, made three extradition requests, namely, by Diplomatic Note dated 6 January 1999 in respect of Mr Cabal, by Diplomatic Note dated 20 January 1999 in respect of Mr Pasini, and by Diplomatic Note dated 11 February, again in respect of Mr Cabal.

Only one request at a time?

53                  Mr Cabal submits that Mexico can have on foot only one request for his extradition at any one time.  It is said, amongst other things, that if more than one extradition request from Mexico in respect of Mr Cabal could validly be made, then that would violate the principle of specialty, the force of which is acknowledged in s 22(3)(d) of the Act and art 18 of the Treaty.  In order to succeed, that submission must overcome a number of hurdles:  cf Zoeller v Attorney-General (Cth) (1987) 16 FCR 153 at 160 and 162 per Beaumont J.  The effect of the Act and the Treaty is, it seems, to prevent the applicants from being tried in Mexico for other than a surrender offence, unless the Attorney-General consents to the trial of non-surrender offences.  The second extradition request extended the protection of the Act to Mr Cabal.  He would not have had that protection if Mexico had merely sought the Attorney-General’s consent.

54                  Mr Cabal makes much of the fact that a PAW issued under s 12 of the Act could not be executed on a person already in custody.  There is authority to the contrary:  R v Weil (1882) 9 QBD 701 at 705 per Jessel MR, cited in Zoeller 16 FCR at 162.  In any event, Mr Cabal’s objection may fade away if, as the first respondent submits and s 12(3) apparently contemplates, the issue of a notice under s 16(1) is not dependent on the execution of a PAW.  At this stage of the proceedings, the applicants have not advanced any strong basis for their claim that Mexico cannot have two extradition requests for Mr Cabal on foot.

Duty to disclose Amparo stays

55                  Articles 15 and 16 of the Treaty prescribe certain requirements for an extradition request between Australia and Mexico.  In particular, they provide that (1) the request is to be in writing through diplomatic channels, as required by art 15(1); (2) the documents submitted in support of the request are to be authenticated in accordance with art 15(2); and (3) there are requisite supporting documents, to be sent with the extradition request, as listed in art 16(1).  The question which arises under s 16 of the Act is whether an extradition request has been received:  Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 403 per Beaumont, Einfeld and Foster JJ.  In brief, a request will be taken to be received if it is sufficiently certain, and if there is substantial compliance with provisions to the effect of arts 15 and 16:  52 FCR 401 and 403.

56                  The applicants submit that, pursuant to art 16(1)(b) of the Treaty, Mexico was required to send, with each extradition request, an authenticated copy of each Amparo stay order.  As presently framed, this submission also faces a number of obstacles.  It may be, as the first respondent submits, that the obligations in art 16(1)(b) are strictly alternative and, in consequence, the sending of authenticated copies of the warrants of arrest was sufficient to fulfil the obligation relevantly imposed on Mexico.  Be that as it may, a stay order is not, it seems to me as presently advised, readily described as a “judicial order … which authorizes the arrest of the person and from which the existence of the offence and its commission by the person sought may be reasonably inferred”. 

Duty to disclose problems of limitations

57                  Pursuant to art 16(1)(c) of the Treaty, Mexico was obliged to send with the extradition request “a statement of the punishment that may be imposed [in relation to the offences the subject of request] and the provisions relating to the period of limitation or prescription”.  The applicants submit that Mexico is in breach of that duty, because it failed to state the effect of the provisions relating to periods of limitation (or prescription) accurately.  It suffices to say, I think, that there is a contest between the respective experts on Mexican law (Mr Izunza and Mr de la Guardia) as to the accuracy of the observations contained in the extradition requests.  It is another matter altogether as to whether it will be open to the applicants at the final hearing to challenge the accuracy of the statements made in the extradition requests, for the purpose of challenging the validity of the s 16 notices. 

(iv)             Breach of natural justice

58                  Finally, on these applications for interlocutory relief, the applicants submit that there are serious issues to be tried concerning denials of procedural fairness.  The applicants’ solicitors had sought access to the supporting documentation before the Pasini notice and the second Cabal notice were issued and, so the applicants claim, were denied access to that documentation in breach of the requirements of procedural fairness.  They submit too that Mr Cabal ought to have been afforded an opportunity to reply to the submission received by the first respondent from Mexico before she issued the second Cabal notice and that the failure to afford that opportunity to Mr Cabal also constitutes a breach of procedural fairness requirements.  (In written submissions, counsel for the applicants submitted that the failure to provide the opportunity sought by them led the first respondent to ignore relevant considerations.  That submission was not elaborated in argument before me.)

59                  At this stage of the proceedings, the circumstances relevant to these claims appear to be the following.

The Pasini notice

(1)           On 27 November 1998, Mr Pasini was arrested on a PAW under s 12 of the Act.

(2)           On 23 December 1998, Mr Pasini’s solicitors asked the Attorney-General to provide them with copies of the supporting documents so that they could make submissions before the exercise of power under s 16(1) of the Act.

(3)           On 13 January 1999, the Attorney-General’s Department responded to the effect that the supporting documents were not yet to hand; that the sixty-day limit made it unlikely that copies of the documents could be provided before the first respondent considered whether or not to issue a notice; and that any submissions which Mr Pasini made by 5.00 pm on 18 January 1999 would be placed before her. 

(4)           On 18 January 1998, Mr Pasini’s solicitors wrote to the Attorney-General’s Department, reserving “our rights to make further submissions in relation to Mr Pasini before the issue of a s 16 notice”; and, on 19 January 1999, the Attorney-General’s Department repeated the point that the sixty-day limit meant that the Department would be unable to provide the copies of the supporting documents as requested prior to the first respondent’s consideration. 

(5)           On 20 January 1999, Mexico forwarded its extradition request to Australia through the diplomatic channel. 

(6)           On 21 January 1999, the Department forwarded a memorandum, together with the request and a note dealing with the legal pre-conditions set out in s 16 of the Act, to the first respondent. 

(7)           On 21 January 1999, the first respondent issued a notice under s 16(1) of the Act with respect to Mr Pasini, reciting the receipt of the extradition request dated 20 January 1999. 

The first Cabal notice

(8)           On 11 November 1998, Mr Cabal was arrested pursuant to a PAW under s 12 of the Act.

(9)           On 25 November 1998, Mr Cabal’s then solicitors wrote to the Director of Public Prosecutions (Cth) requesting copies of all documentation “presently being relied upon in support of the extradition proceedings”.  Mr Cabal’s solicitors wrote to the Attorney-General the same day, requesting information from him. 

(10)       By letter dated 27 November 1998, the Attorney-General’s Department responded that a copy of the supporting documents would be made available “prior to the extradition hearing in accordance with s 16(3) of the Act” and that the hearing could be expected to be fixed following receipt of the supporting documents from Mexico and the issue of a notice pursuant to s 16 of the Act.

(11)       On 23 December 1998, Mr Cabal’s solicitors asked the Attorney-General to provide them with copies of supporting documents so that they could make submissions before an exercise of power under s 16 of the Act.

(12)       On 6 January 1999, Mexico forwarded its extradition request through the diplomatic channel.

(13)       On 7 January 1999, the Department forwarded a memorandum, together with a request and a note dealing with the legal pre-conditions set out in s 16 of the Act, to the first respondent.

(14)       On 7 January 1999, the first respondent issued a notice under s 16(1) with respect to Mr Cabal, reciting the receipt of an extradition request dated 6 January 1999.

(15)       On 13 January 1999, the Attorney-General’s Department wrote to Mr Cabal’s solicitors, stating that it would not have been possible to provide the solicitors with copies of the supporting documents before the first respondent considered the exercise of power under s 16(1), because those documents had not been received until 6 January 1999 and the solicitors’ letter was not received in the Department until 8 January 1999 and in the international branch of the Department’s criminal law division (dealing with the matter) until 12 January 1999. 

The second Cabal notice

(16)       On 11 February 1999, Mexico forwarded a second extradition request in relation to Mr Cabal to Australia through the diplomatic channel.

(17)       On 11 February 1999, the Attorney-General’s Department notified Mr Cabal’s solicitors that Mexico had made a second request for extradition, and provided the solicitors with a copy of the documents which supported the request.  The solicitors were invited to make submissions to the first respondent by 5.00 pm on 19 February 1999.

(18)       On 16 February 1999, a second PAW under s 12 of the Act was issued in relation to Mr Cabal.

(19)       On 24 February 1999, Mr Cabal’s solicitors made detailed submissions to the Department opposing the issue of a notice under s 16(1) of the Act, upon a number of grounds, including that Mr Cabal was not an “extraditable person”; that his alleged conduct did not satisfy the test of dual criminality; and that there were extradition objections.

(20)       On 10 March 1999, Mexico made detailed submissions in reply to the submissions made by Mr Cabal’s solicitors.

(21)       On 23 March 1999, the Department forwarded a memorandum, together with the request, the submissions from Mr Cabal’s solicitors and from Mexico and a note dealing with the legal pre-conditions set out in s 16 of the Act, to the first respondent.

(22)       On 30 March 1999, the first respondent issued a second notice under s 16(1) with respect to Mr Cabal, reciting the receipt of an extradition request dated 11 February 1999.

60                  The right to procedural fairness and the obligation to accord it derive from common law:  see Annetts v McCann (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ and May v Deputy Commissioner of Taxation (unreported, Branson, Finn and Kenny JJ, 21 May 1999) [1999] FCA 287 par 22.  When a statute confers power upon a public officer to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the requirements of procedural fairness regulate the exercise of that power, unless they are excluded by plain words of necessary intendment:  Annetts v McCann 170 CLR at 598; and Kioa v West (1985) 159 CLR 550 at 584 per Mason J.  An exercise of the power under s 16 of the Act to issue a notice in accordance with the section operates adversely to the person named in the extradition request.  If already on remand under s 15, it enables that remand to continue:  s 17(2) and art 19 of the Treaty.  Once a person is on remand under s 15 and a notice has been issued under s 16(1), the person against whom the notice is issued may either consent to surrender (s 18) or be subject to a determination of eligibility for surrender (s 19).  As Cooper J said in Foster v Attorney-General (1997) 97 A Crim R 560 at 573:

An exercise of the power under s 16 of the Act to issue a notice in accordance with the section operates adversely to the person named in the extradition request because it prejudices that person’s right to personal liberty and to be, and move, at large without constraint.

His Honour went on to conclude:

Prima facie the exercise of the power is one regulated by the rules of natural justice and the requirement of procedural fairness.

61                  For the purposes of these interlocutory applications, I assume that procedural fairness requirements are relevant to an exercise of power under s 16(1) of the Act.  It will, of course, be necessary to decide at a final hearing whether that assumption is correct and to consider whether common law procedural fairness has been excluded by operation of the Act and, if not, what the requirements of procedural fairness are, having regard to the statutory context in which the decision to issue a s 16(1) notice is made. 

62                  The relationship between decision-makers at each stage of the process was considered by the High Court of Australia in Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528.  I refer particularly to the joint judgment of Brennan CJ, Dawson and McHugh JJ at p 538.  As their Honours’ account of the Act makes plain, certain issues central to the extradition of the applicants fall to be considered more than once in the process.  At this stage of the proceedings, I am inclined to the provisional view, contrary to that advocated by the applicants’ counsel, that the discretion conferred by s 22(3)(f) would permit the Attorney-General to reconsider matters that he had previously considered under s 16(1) of the Act:  see also Foster v Attorney-General (Cth) 97 A Crim R at 575.  If this is so, the requirements of procedural fairness may, in relation to an exercise of power under s 16, be comparatively slight.  Cf South Australia v O’Shea (1987) 163 CLR 378 at 389 and Cornall v A. B. (A Solicitor) [1995] 1 VR 372 at 393-402. 

63                  In that regard, there is, I think, much to be said for the view expressed by Cooper J in Foster v Attorney-General (Cth).  His Honour said, at 97 A Crim R 575-6:

The discretion which the Attorney-General exercises under s 16 is limited to the question of whether the extradition process should proceed.  To the extent that there is any duty to make inquiry, that duty is limited to the three matters in respect of which the Attorney-General must hold an opinion before giving the notice.  There is no duty to make inquiries as to matters which may go to a residual general discretion not to issue the notice.  Nor, in my view, do the rules of natural justice or procedural fairness require that a magistrate or the Attorney-General disclose to the person against whom extradition is sought prior to exercising the powers under ss 12 or 16 that a request from an extradition country has been received and give that person an opportunity to respond.  For to do so may render ineffective or frustrate the process:  Johns v Australian Securities Commission (1993) 178 CLR 408 at 431:  Kioa v West at 615. 

Where, as in the present case, representations are made not to any of the three statutory elements under s 16, but to the residual discretion, the rules of natural justice require that those submissions be received and considered in the context of whether the extradition process should be peremptorily terminated.  However, the duty does not extend to conducting an inquiry as to the truth of any assertions of fact or to resolve finally at that stage any inconsistencies between versions of the facts put by the applicant and others.

Although those observations are not specifically directed to the circumstances of the present cases and, therefore, cannot directly answer the matters raised by the applicants, they throw doubt on the view, for which the applicants contend, that the first respondent was obliged to furnish the extradition documentation to each of the applicants so as to afford him an opportunity to respond. 

64                  As it happened, Mr Pasini’s legal representatives knew of the forthcoming request and, in response to their representations, his legal representatives were invited by the Department to make submissions as to the exercise of power under s 16.  That may well have been enough to meet the requirements of procedural fairness. 

65                  What of the first Cabal notice?  Again, Mr Cabal’s legal representatives knew of the forthcoming extradition request and of the inquiry required by s 16(1) of the Act.  By their letter of 23 December 1998, they foreshadowed submissions “on the ‘extraditable person’ issue … and the dual criminality issue …” but did not enlarge on those matters, seeking in the meantime access to the extradition documentation.  At this stage of the proceedings, nothing very much seems to turn on the first respondent’s failure to consider the letter of 23 December, even if the view be taken that the letter was constructively before her at the time she issued the relevant notice.  As in the case of the Pasini notice, the outcome of the claim regarding the first Cabal notice apparently turns on whether or not Mr Cabal had an entitlement to the documentation supporting the extradition request. 

66                  In relation to the second Cabal notice, it is said that the first respondent’s failure to afford him an opportunity to respond to adverse matters raised by Mexico constituted, in the circumstances of the case, a failure to accord procedural fairness.  In support of that submission, counsel for Mr Cabal refer to observations of Mason J, in Kioa v West 159 CLR at 587.  The first respondent’s response is that, if there was a duty to observe the requirements of procedural fairness, the first respondent was “not required to give Cabal a right of rejoinder to Mexico’s reply.  The process must end somewhere.  The [first respondent] was not obliged to institute a curial process.  Any obligation of procedural fairness went no further than receiving and considering Cabal’s submissions”.  Having regard to Cooper J’s observations in Foster, that may turn out to be ultimately accepted. 

67                  The applicants’ case raises the questions, does the common law requirement of procedural fairness apply to an exercise of power under s 16(1) of the Act and, if so, what are those requirements?  As I have said, Cooper J’s approach in Foster v Attorney-General (Cth) is indicative of an answer adverse to the applicants but it is not, I think, definitive.  In the absence of binding authority directly on point, those questions call for more careful analysis than is appropriate to an interlocutory hearing.  It is possible, too, that there may be some additional factual matters upon which the parties may wish to rely at the final hearing.  On balance, although on the material presently before me I do not regard the applicants’ denial of natural justice claims as strong, I am of the view that, for the purpose of applications for interlocutory relief, they, too, raise serious questions to be tried. 

balance of convenience

68                  Having found that there are serious questions to be tried, it becomes necessary to consider the balance of convenience. 

69                  I accept that, as the applicants submit, the validity of the s 16 notices (which are under challenge in these proceedings) cannot be determined in the proceedings to be conducted under s 19 of the Act:  Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 539 per Brennan CJ, Dawson and McHugh JJ and 541 per Toohey J; also Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 304 (on limitations periods).  I accept, too, that if it were established that the s 16 notices were invalid, a necessary condition of the magistrate’s jurisdiction to conduct s 19 proceedings would not exist.  I do not accept, however, that there is, at least at this stage of the proceedings, any real risk that the challenge that the applicants make to the s 16 notices in this Court will be rendered nugatory if the fourth respondent is not restrained from conducting the s 19 proceedings.  On the contrary, if the fourth respondent makes a decision in the applicants’ favour, then, subject to rights of review, the applicants would secure their release and an end to the extradition process:  see s 19(10) and s 21.  If the fourth respondent makes a decision adverse to them, then the applicants will have rights of review (to a single judge) and rights of appeal (to an appellate court, including, by way of special leave, to the High Court):  see s 21.  Moreover, there must be a determination by the Attorney-General under s 22 that each of the applicants should be surrendered before Mr Cabal or Mr Pasini can lawfully be deprived of the protection of the Act and of the courts of this country.  (I accept the first respondent’s submissions that there would be little utility at this stage in restraining the first respondent in the manner the applicants seek:  no determination under s 22 falls to be made until the outcome of the s 19 proceedings is known.)

70                  The applicants submit that if the fourth respondent is now restrained from conducting the s 19 proceedings, the costs of the s 19 proceedings (which may be considerable) will be saved.  The possibility that the applicants will be put to unnecessary expense, worry or inconvenience is not, however, a sufficient reason for the Court to grant interlocutory injunctive relief:  cf Re Rozenes; Ex parte Burd (1994) 68 ALJR 372 at 373-4 per Dawson J. 

71                  The applicants also submit that the principles against fragmentation do not apply in this case, because the s 19 proceedings have not yet begun and most if not all issues can only be decided in this Court and not in the s 19 proceedings.  In consequence, so the applicants submit, the proceedings in this Court are not collateral in the relevant sense. 

72                  I accept, as 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; 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. 

73                  The principle against fragmentation is designed to protect “the public interest in the expeditious resolution of accusations of crime”:  Flanagan 60 FCR at 187; The Queen v Elliott (1996) 185 CLR 250 at 257; Seymour v Attorney-General (Cth) (1984) 4 FCR 498 at 501.  Perhaps it is on account of this that the principle has not been limited to collateral review (in the strict sense) in 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 interest, i.e., the speedy resolution of criminal trials to be held in an extradition country with whom Australia has obligations under an extradition treaty.  Against the interests of the applicants in the result of the s 19 proceedings and in the conduct of those proceedings according to law must be weighed the public and international interest in the expeditious resolution of accusations of crimes where, by the crossing of international borders, a person accused of crimes is necessarily subject to extradition procedures. 

74                  In Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 (where, as in this case, 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; Dutton v Republic of South Africa (unreported, Burchett J, 7 January 1999) [1999] FCA 2, par 20. 

75                  The applicants do not seek to persuade me that any of the issues arising in this Court are to be characterised as falling outside the fragmentation principle by reason of their straightforward character.  On the contrary, they emphasise the complexity of the issues raised in the proceedings and that a number of those issues turn on expert evidence of Mexican law (not all of which is to hand).  At my invitation, the applicants placed before the Court a draft of a question which, so counsel submitted, raised the question the applicants sought to agitate on the Amparo stays.  It is common ground, however, that the answer to that question turns upon facts which, in the absence of agreement between the parties, are to be determined by the Court.  It is not suggested that those facts would be substantially uncontested or capable of ready resolution.  Moreover, the natural justice issues turn, so the applicants submit, upon matters of fact; and it is not suggested that those facts would be substantially uncontested.

76                  The principles against fragmentation militate against the Court interfering with the magistrate’s orderly conduct of the s 19 proceedings.  No exceptional situation has been shown to take the proceedings in this Court outside that principle.  If an interlocutory injunction is granted and the applicants are not ultimately successful in this Court, the extradition process will be significantly fragmented and delayed.  There are, I think, strong discretionary reasons why the Court should not intervene in the magistrate’s conduct of s 19 proceedings. 

77                  In some cases, the disproportionate strength of one party’s case over the other (especially where there is no real dispute about the facts) may justify the grant of interlocutory relief:  see American Cyanamid Co v Ethicon Ltd [1975] AC 396 at 409.  As a Full Court of this Court said, in Bullock v Federated Furnishing Trades Society of Australasia (No. 1) (1985) 5 FCR 464 at 472:

[A]n apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even.  A more doubtful claim (which nevertheless raises ‘a serious question to be tried’) may still attract interlocutory relief if there is marked balance of convenience in favour of it.

In these applications for interlocutory injunctive relief, the applicants have crossed the “serious question” threshold but I am not persuaded, on the material before me at this stage, that their claims are particularly strong ones and, in my view, the balance of convenience clearly favours the continuation of the s 19 proceedings.

78                  For the above reasons, I would dismiss each of the applications for interlocutory relief in V 120 of 1999, V 121 of 1999 and V 222 of 1999, with costs.

Associate:

Dated:              6 July 1999

V 120 of 1999:

V 121 of 1999:

V 222 of 1999:

No person is liable to be taken into custody under the Act unless a magistrate is satisfied, on the basis of the information contained in the affidavits supporting the application for the arrest of that person, that the person is an extraditable person.  But the power of a s 19 magistrate does not extend to the reviewing of the satisfaction of the original magistrate or of the opinion of the Attorney-General as to whether the person is an extraditable person.  The powers conferred by the Act, other than those conferred on a court by s 21, are administrative in nature.  They are exercisable by different repositories in sequence, but none of them authorises the repository of a power to review the exercise of a power by another repository earlier in the sequence.

Of course, the same issue or similar issues may arise for independent determination by the respective repositories of powers where the same issue or a similar issue conditions the exercise in sequence of their respective power.  Thus, if the Attorney-General forms an opinion when considering the issue of a s 16 notice that there is an extradition objection, he has no power to issue the notice (s 16(2)(b)); if the s 19 magistrate is satisfied that there are substantial grounds for believing that there is an extradition objection, the magistrate must order the person to be released (s 19(2)(d), (10)(a)); and unless the Attorney-General in making a determination under s 22 is satisfied that there is no extradition objection, he cannot issue a warrant for the person’s surrender under s 23 (s 22(3)(a)).  But the s 19 magistrate does not review the Attorney-General’s non-formation of an opinion under s 16; nor does the Attorney-General review the s 19 magistrate’s state of non-satisfaction.  The existence or possible existence of extradition objections fall for consideration by the Attorney-General under s 16, by the s 19 magistrate and again by the Attorney-General under s 22 but on each occasion the repository of the relevant power makes an independent determination of the issue on which the existence of that power depends.