FEDERAL COURT OF AUSTRALIA

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

EXTRADITION – release on bail pending review – second bail application – whether s 21(6) of the Extradition Act 1988 (Cth) precludes successive bail applications – comparison with s 15(3) of the Extradition Act 1988 (Cth) – existence of the right at common law to make successive bail applications – whether fresh circumstances required for successive bail applications.

Extradition Act 1988 (Cth):  s 15(3), s 21(6)

In re Kray [1965] 1 Ch 736 cited

Eshugbayi Eleko v Officer Administering the Government of Nigeria [1928] AC 459 cited

In re Hastings (No 3) [1959] 1 Ch 368 cited

In re Hastings (No 2) [1959] 1 QB 358 cited

The State (Dowling) v Kingston (No 2) [1937] IR 699 cited

Regina v Fraser and Jacobs (1892) 8 WN (NSW) 144 cited

R v Malone (1903) St R Qd 140 cited

Director of Public Prosecutions v Kanfouche [1992] 1 VR 141 cited

Re Edwards (1988) 92 FLR 96 cited

Ratten v The Queen (1974) 131 CLR 510 cited

Re Knowles [1984] VR 751 cited

CARLOS CABAL PENICHE & MARCO PASINI BERTRAN v UNITED MEXICAN STATES & ANOR (No 2)

V 728 of 1999

GOLDBERG J

MELBOURNE

15 MARCH 2000

RULING

Introduction

1                     On 17 December 1999 Ms L A Hannan, a Magistrate in Victoria, determined pursuant to s 19(9) of the Extradition Act 1988 (Cth) (“the Act”) that the first applicant (“Mr Cabal”) and the second applicant (“Mr Pasini”) were persons eligible for surrender to the first respondent (“Mexico”) in relation to a number of extradition offences.

2                     The Magistrate, pursuant to s 19(9) of the Act, by warrant, ordered that the applicants be committed to the Melbourne Assessment Prison or Port Phillip Prison to await, in relation to the offences the subject of her determination, surrender under a surrender warrant or release pursuant to an order under s 22(5) of the Act.

3                     On the same day as the Magistrate issued the warrants, the applicants filed an application in the Federal Court pursuant to s 21 of the Act for a review of the Magistrate’s decision to commit the applicants to prison.  In that application the applicants sought by way of interim relief orders pursuant to s 21(6)(f)(iv) of the Act that they be released on bail pending the review of the Magistrate’s decision.  I heard that application for interim relief on 22 and 23 December 1999.  On 4 January 2000 I published my reasons for dismissing the application by each of the applicants that they be released on bail until the review had been conducted.  I also ordered that liberty be reserved to the applicants to apply further for release on bail consistently with my reasons for judgment.  In par 112 of my reasons I said:

“As I have observed earlier in these reasons I am reserving liberty to the applicants to renew their application for bail if the conditions under which they are kept in Port Phillip Prison deteriorate or if the conditions under which they are transported and detained while outside the prison, whether in shackles or otherwise, are such as to warrant further consideration.”

4                     On 9 February 2000 the applicants filed a notice of motion for orders pursuant to s 21(6)(f)(iv) of the Act that they be released on bail until the review of the Magistrate’s decision has been determined.  That notice of motion was returnable on 6 March 2000.  I indicated to the parties that I would not fix a date for the hearing of the motion until the material relied upon by the applicants in support of the motion had been filed and served.  Thereafter the applicants filed and served a number of affidavits to which I shall refer which related to issues other than those in respect of which I had reserved liberty to apply.

5                     I held a directions hearing on 22 February 2000 to determine how the matter would proceed.  Counsel for the applicants submitted that it was open to the applicants to make a fresh or further application for bail and to bring before the Court material relevant to the application which included material which was available to the applicants at the time of the earlier bail application but which was not relied upon on that application.  It was submitted that the fact that the material was not relied upon at the time of the last hearing did not preclude the applicants from raising the material on the further bail application.

6                     Counsel for Mexico indicated that Mexico wished to raise two preliminary issues by way of objection to the proposed bail application:

·                    Section 21(6)(f)(iv) of the Act did not allow more than one bail application before the review by the Court was undertaken.  Subsumed in this objection was the submission that I had no jurisdiction to reserve liberty to the applicants to make a further application for bail as I had done on 4 January 2000.

·                    If s 21(6)(f)(iv) did allow for more than one bail application it was not open to the applicants to rely on material which was available to them, or which could have been obtained by them, but was not relied upon at the time of the earlier bail application.

7                     The parties agreed that it was desirable that these preliminary issues be determined before any hearing of the motion because their determination would influence, and have an effect on, the extent of the material to be relied upon by both parties.  Accordingly I directed that written submissions be filed and exchanged and set a date for hearing Mexico’s preliminary objections to the bail applications and the material to be relied upon by the applicants. 

8                     The affidavits filed in support of the motion dealt with matters other than the deterioration of the conditions under which the applicants have been kept in Port Philip Prison and the conditions under which they are transported and detained while outside the Prison.  The issues covered by the affidavits filed by the applicants fall into the following categories:

·                    Commercial transactions entered into by Mr Cabal during 1996.  Mr Howard Schrader’s affidavit deals with those matters.

·                    Evidence as to the conditions in which the applicants were kept prior to the earlier bail application including evidence challenging and contradicting the affidavit of Mr Shane Kelly sworn on 22 December 1999 as to the conditions in the Sirius East Unit at Port Philip Prison.  Mr Kelly’s affidavit was relied on by Mexico at the earlier bail application.  Mr Lavery, one of the applicants’ solicitors, said that the applicants disagreed with Mr Kelly’s evidence and that after the hearing on 22 December 1999 concluded, the applicants instructed their counsel to prepare affidavits from the applicants, an inmate of the Prison and Ms Nettlebeck, a solicitor to refute Mr Kelly’s evidence.  Those affidavits were prepared overnight, the affidavits of Ms Nettlebeck and the inmate were sworn and the affidavits of the applicants were finalised.  A conference was held between the applicants and their solicitor and counsel on 23 December 1999 before the conclusion of the hearing at which the applicants expressed the view that the further affidavits should be filed and served but counsel disagreed.  The affidavits were not filed on that day.  The affidavits relied on are those of Mr Lavery, Ms Nettlebeck, the inmate of the prison and Mr Minc.

·                    The contention that the conditions under which the applicants are kept in prison are in contravention of Australia’s obligations under international treaties.  The affidavits of Dr John Pace are relied upon.

·                    The position of the applicants under Mexican law and the Mexican judicial system.  Mr Minc has sworn an affidavit exhibiting unsworn affidavits by Mr Jose Luis Izunza Espinosa, Mr Ricardo Guerra Carrillo and Mr Alberto Conrado Zinser Cieslik.

·                    The actions and activities of the applicants after they left Mexico in or about August 1994 - Mr Cabal has sworn an affidavit in which he sets out in considerable detail events which occurred in Mexico prior to him leaving Mexico and subsequently, all of which events occurred prior to the first bail hearing.  Mr Cabal has also sworn a further affidavit in which he gives evidence in relation to his financial affairs and as to reasons as to why he says he will not abscond if granted bail.  He relies upon his “supplementary statement” dated 22 December 1999 which was not tendered at the first bail hearing.  Mr Pasini has sworn an affidavit in which he sets out in considerable detail matters relating to his personal and business background, his departure from Mexico in August 1994, his loss of business and his movements and activities from September 1994 including activities which arose in Spain, France, Argentina, Dominican Republic and his apprehension in Melbourne.  He also refers to “Amparo” proceedings in Mexico in relation to the warrants for his arrest and to threats to his family members and associates.  He also complains that he will not receive a fair trial on his return to Mexico.  All these matters were known to Mr Pasini prior to the earlier bail application save for the fact that approximately two weeks before he swore his affidavit on 25 February 2000 the judge considering his application to have the warrants quashed was changed.

·                    The conditions under which the applications have been detained in prison subsequent to the earlier bail application.  Mr Cabal and Mr Pasini give evidence as to their current living conditions and general treatment in prison which they say are identical to the living conditions and general treatment of all convicted prisoners in Sirius East.  The matters to which they refer (par 31 and par 67 respectively) are the conditions and treatment which existed in substantially the same form at the time of the first bail hearing.  However the applicants do raise circumstances which have occurred since the earlier bail application.

9                     In summary, the issues which the affidavits address are:

·                    The continued harassment of the applicants and the further deterioration of their conditions of detention;

·                    Refutation of Mr Kelly’s evidence that Sirius East is a safe environment and that the applicants were transferred there for their own protection;

·                    Refutation of the evidence that the decision to place the applicants on the high security transport list was based on the reason that Mr Cabal had offered a prisoner money to assist an escape;

·                    The applicants’ state of mind when they determined to remain outside Mexico and the reasons they sought to avoid arrest by the Mexican authorities;

·                    The contention that the applicants’ legal and political status in Mexico is now significantly different than was the position in 1994, which position would be undermined if they were to abscond.

·                    The contention that Australia has breached its obligations under the International Covenant on Civil and Political Rights in the manner in which it has detained the applicants. 

The legislation

10                  The resolution of the preliminary issues depends upon the proper construction of s 21(6)(f)(iv) of the Act.  Section 21(6) of the Act provides:

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

(a)     applies under subsection (1) for a review of an order;

(b)     …

(c)     …

the following provisions have effect:

(d)     the court to which the application or appeal is made shall have regard only to the material that was before the magistrate;

(e)     if, because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has been released – the court to which the application or appeal is made may order the arrest of the person;

(f)      if:

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

(ii)     the person has been arrested under an order made under paragraph (e);

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

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

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

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

(g)          …”

Submissions

11                  Mexico submitted that the provisions relating to bail in respect of persons detained under the provisions of the Act were to be found exclusively in the Act and that there was no basis for any other bail regime to apply.  It was submitted that s 21(6)(f)(iv) of the Act provided for only one application for bail until the completion of the review and that there was no express or implied reservation of any right to make further bail applications once the first bail application had been unsuccessful.

12                  The applicants submitted that there was nothing in s 21(6)(f)(iv) which limited the number of bail applications which could be made to one bail application only and they contrasted the position at the review level with the position which applied at the level of the Magistrate’s consideration, which was governed by s 15(3) of the Act.

13                  Section 15 is in the following terms:

“(1)     A person who is arrested under a provisional arrest warrant shall be brought as soon as practicable before a magistrate in the State or Territory in which the person is arrested.

 (2)      The person shall be remanded by a magistrate in custody, or, subject to subsection (6), on bail, for such period or periods as may be necessary for proceedings under section 18 or 19, or both, to be conducted.

 (3)      If a person is remanded in custody after making an application for bail, the person cannot make another application for bail during that remand unless there is evidence of a change of circumstances that might justify bail being granted.

(4)                 At any time before proceedings under section 18 or 19 commence in relation to a person (in this section called the ‘transferee’) who is on remand under subsection (2), the Attorney‑General may, by warrant in the statutory form:

(a)        where the transferee is in custody – direct a magistrate to order the release of the transferee into the custody of a specified police officer and authorise that police officer to take the transferee in custody to appear before a magistrate in a specified State or Territory; or

(b)        where the transferee has been granted bail – direct a magistrate to order the discharge of the recognizances on which bail was granted and authorise a specified police officer to take the transferee in custody to appear before a magistrate in a specified State or Territory.

 (5)      The transferee shall be remanded by a magistrate in the specified State or Territory in custody, or, subject to subsection (6), on bail, for such period or periods as may be necessary for proceedings under section 18 or 19, or both, to be conducted.

 (6)      A magistrate shall not remand a person on bail under this section unless there are special circumstances justifying such remand.”

It should be noted that subs (3) of s 15 was amended by the Crimes Act and Other Legislation Amendment Act 1997 (Cth) which inserted subs (3) of s 15 in its present form.  Prior to that amendment s 15(3) provided:

“Where a magistrate remands the person in custody after the person has made an application for bail, the person is not entitled to apply to any other magistrate for release on bail during that remand.”

The Explanatory Memorandum relating to the Extradition Bill 1996 explained the need for the amendment in the following terms:

“This amendment corrects a deficiency in the previous provision.  Subsection 15(3) previously provided that where a magistrate remands a person in custody after the person has made an application for bail, the person is not entitled to apply to any other magistrate for release on bail during that remand.  The purpose of the provision is to restrict ‘magistrate shopping’, but the provision could have had a more far‑reaching application than was originally intended, for instance, in cases where a magistrate dies, resigns or retires.  The amendment avoids that possible effect by making it clear that if a person makes an application for bail and fails, the person is not able to make a further application unless there is evidence of a change in circumstances that might justify bail being granted.”

14                  Mexico submitted that there was no “inherent jurisdiction” in the Court to grant bail and that it could not be argued that by virtue of s 23 of the Federal Court Act 1976 (Cth) it was necessary that an applicant have a right to make serial or successive bail applications.  Mexico relied upon the observation of Brennan J in Jackson v Sterling Industries Limited (1987) 162 CLR 612 where his Honour said at 620‑621:

“The relief which the Court is authorized to give does not extend beyond the grant of remedies appropriate to the protection and enforcement of the right or subject‑matter in issue.”

15                  It was said that in the absence of any “inherent jurisdiction” and in the absence of any jurisdiction independent of statute in respect of bail, the question for the Court was whether, on the proper construction of s 21(6)(f)(iv), it was implicit in the section that an applicant had a right to make a further bail application, once bail had been refused by the Court before which the appeal or review is to be conducted.

16                  Mexico also submitted that the maxim of statutory interpretation expressio unius est exclusio alterius applied so that the express reservation of the right to make further bail applications in s 15(3) and the lack of any such reservation in respect of s 21 demonstrated that it was the intention of the Parliament that an applicant for bail was restricted to a single bail application at the review or appeal level.  Mexico submitted that in the absence of a provision like s 15(3) there was no right to make a further application for bail after an earlier application for bail had failed and that s 15(3) was the specific conferral of a right to make a further bail application albeit in limited circumstances, namely where there were changed circumstances.

17                  The applicants submitted that the maxim of statutory interpretation expressio unius est exclusio alterius had application to the construction of s 15 and s 21 of the Act but with a different result than that contended for by Mexico.  They submitted that s 15(3) operated to confine an unlimited power, that is to say, a power unlimited as to the number of times the Court could entertain an application for bail.  It was said that the Parliament had expressly provided for restrictions on subsequent bail applications before the Magistrate under s 15 but had not extended those restrictions to subsequent bail applications under s 21(6)(f)(iv).  Accordingly, s 21(6)(f)(iv) should be accorded its plain meaning, namely that there were no restrictions on further bail applications such as were found in s 15.  Putting the matter another way it was said that the right to make further bail applications under s 15 was limited to situations where there was a change of circumstances but that no such limitation was to be found under s 21(6)(f)(iv).

Reasoning

18                  I was initially troubled by the terms of s 15(3) of the Act and the legislative history of that provision because of the potential application of the maxim expressio unius est exclusio alterius.  But, on further consideration, I have concluded the terms of s 15(3) are of little assistance in construing s 21(6)(f)(iv).  The general procedure contemplated by s 15, as following from the point at which a person is arrested under a provisional warrant, is quite different from the procedure which follows once a person applies under s 21(1) for a review of a magistrate’s decision that a person is eligible for surrender to the extradition country.  In the former situation there may be a remand for specific or limited periods at the end of which there may be further periods of remand.  For example, a person may be remanded to a specific date to determine whether the Attorney‑General will issue a notice under s 16(1) of the Act in relation to the person; or the person may also be remanded to a specific date after the Attorney‑General has issued such a notice to give the person a reasonable time to prepare for the conduct of the s 19 proceedings:  see s 19(1)(d).  Section 15(3) in its original and amended form contemplates that there shall only be one bail application in relation to each period of remand  (although the amended form allows a further application if there are changed circumstances) but contemplates that there may be more than one bail application during the period commencing on the date on which the person is arrested under a provisional warrant and concluding on the date the magistrate determines that the person is eligible for surrender to the extradition country.

19                  Successive periods of remand are contemplated by subs (5) of s 15.  Subsection (3) of s 15 only operates in relation to each period of remand, it does not operate, in its terms, in relation to the totality of the whole period between the date on which a person is arrested under a provisional warrant and the date on which the magistrate determines that the person is eligible for surrender to the extradition country.  However s 21 does not contemplate successive periods of remand, nor does it contemplate successive stages to be completed or steps to be taken up to the date the review has been conducted or the appeal heard.  Section 21, for example, does not have any stages such as are found in s 16(1) (the Attorney‑General’s notice in writing to the magistrate) or in s 19(1)(d) (the giving of a reasonable time for the person or the extradition country to prepare for the conduct of the proceedings).

20                  The applicants also relied upon further principles of statutory construction, namely that there is a presumption that a statute does not alter or interfere with existing common law rights, that a court will construe a statute in conformity with the common law and will not attribute an intention to the legislature to alter common law principles unless such an intention is manifested according to the true construction of the statute:  American Dairy Queen (Q’ld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677 at 682‑683; Potter v Minahan (1908) 7 CLR 277 at 304.  It was submitted that although Parliament can derogate from basic rights it must do so clearly, by express language or an inference that is unambiguously clear:  Coco v The Queen (1994) 179 CLR 427 at 436‑438. 

21                  Mexico submitted that the bail provisions which related to the Act were to be found exclusively in the Act and that there was no basis for any other bail regime to apply.  It may be accepted that the Federal Court has no “inherent” jurisdiction as such and that any amplification of its powers is to be found by reference to the scope of s 23 of the Federal Court Act.  However such position does not exclude the relevance or operation of the principles of statutory construction upon which the applicants rely.  For the reasons to which I shall refer, based on the proper construction of s 21(6)(f)(iv) it is not necessary to consider whether any assistance is to be gained from s 23 of the Federal Court Act in construing s 21(6)(f)(iv).

The common law

22                  Those principles are well accepted but it is necessary to determine what were the common law rights in relation to bail.  It was submitted by the applicants that at common law there was a right to make further applications for bail subsequent to an unsuccessful application and that such common law right did not involve a requirement that the further bail application be based on fresh or new facts or grounds.  Historically an application for a writ of habeas corpus was the normal method of applying for bail although the courts also had an inherent jurisdiction to grant bail virtute officii:  In re Kray [1965] 1 Ch 736 at 740.  Although it has been assumed in some cases that an applicant for a writ of habeas corpus or bail could apply successively to different judges or different courts if refused relief the view has been expressed that such a right was more limited.  The more expansive view is found expressed in Cox v Hakes (1890) 15 AppCas 506 at 514; Eshugbayi Eleko v Officer Administering the Government of Nigeria [1928] AC 459 at 468 and in Ex parte Chapple (1950) 66 TLR (Pt 2) 932.  A more limited view was taken in In re Hastings (No 2) [1959] 1 QB 358 where a Divisional Court (Lord Parker CJ, Hilbery and Diplock JJ) undertook a detailed analysis of the right to apply for a writ of habeas corpus and to apply for bail.  The Court concluded that in term time the writ of habeas corpus could only be issued by the court sitting in banc and that an applicant could go from court to court, for example from King’s Bench to Common Pleas, from Common Pleas to Exchequer, but that in the vacation an applicant could go from judge to judge even of the same court.  The Divisional Court did not accept that in term time an applicant could go from judge to judge.

23                  This view was adopted in In re Hastings (No 3) [1959] 1 Ch 368.  At 380, Harman J said:

“In my judgment, this application therefore is precluded, by the absence of the ancient but imaginary right, to go round and round and round from judge to judge when the term is in progress.  There never was such a thing; there is not now; and this applicant, having had the judgment of the High Court, cannot have another one.”

24                  However, as the Divisional Court observed in In re Hastings (No 2) (supra) at 371, an applicant:

“could not apply twice to the same court on the same facts … The court must have an inherent jurisdiction to refuse, having once exercised its discretion, to hear the same matter argued again.”

The Divisional Court observed that In re Cobbett (1845) 5 LTOS 130 an application had been refused by the Court of Queen’s Bench and again by the Court of Exchequer.  When it was made a second time to the Court of Exchequer, Parke B remarked, in the course of argument:

“You have been heard once; we cannot enter into this matter again.”

The Divisional Court in In re Hastings (No 2) (supra) concluded at 374:

“So far we venture to think that the authorities cannot be said to support the principle that except in vacation an applicant could go from judge to judge as opposed to going from court to court.  Nor can we trace any single instance in the books of application being made to successive judges of the same court.”

It will be remembered that in 1873 the Judicature Act united the various English courts into one Supreme Court of Judicature and their jurisdiction was transferred to the High Court of Justice.  The Divisional Court observed at 377 that it knew:

“of no case since 1880 in which an application based on the same grounds and the same evidence had been renewed before a Divisional Court consisting of different judges of the Queen’s Bench Division.”

The Divisional Court then concluded at 377:

“We hold, therefore, that the applicant, having already once been heard by a Divisional Court of the Queen’s Bench Division, is not entitled to be heard again by another Divisional Court of the same Division.”

In Eshugbayi Eleko (supra) the Privy Council acknowledged that there was no reported case before 1873 of applications being made to successive judges of the same court but noted that the common law courts usually sat in banco so that an application to the Court was effectively an application to all the judges of the Court sitting together.  The Privy Council concluded at 468:

“If it be conceded that any judge has jurisdiction to order the writ to issue, then in the view of their Lordships each judge is a tribunal to which application can be made within the meaning of the rule, and every judge must hear the application on the merits.  It follows that, although by the Judicature Act the Courts have been combined in the one High Court of Justice, each judge of that Court still has jurisdiction to entertain an application for a writ of habeas corpus in term time or in vacation, and that he is bound to hear and determine such an application on its merits notwithstanding that some other judge has already refused a similar application.”

It is fair to say that the Divisional Court cast doubt on the historical basis for the justification of the views expressed in Eshugbayi Eleko (supra) and Ex parte Chapple (supra), which the Court regarded as obiter, but left open the question whether they were correctly decided.  Eshugbayi Eleko (supra) was also the subject of critical comment by the Supreme Court of Ireland in The State (Dowling) v Kingston (No 2) [1937] IR 699.  At 739‑740 Fitzgibbon J said:

“There is no doubt that in term time the suitor could apply to each Court in turn, just as in vacation he could have gone – ex concessis – to each Judge of each Court in turn, but the theory enunciated by Lord Hailsham that he had right to go to each Judge of each Court during term time is unsupported by any decision and is contrary to a strong current of authority.”

(See also (1959) Modern L R 184)

25                  In re Hastings (No 2) (supra) was followed by the Lord Chancellor in In re Kray (supra) who observed (at 742):

“In my opinion the law at the time of the passing of the Judicature Act, 1873, was that the superior courts, virtute officii, had an inherent jurisdiction to grant bail, that the remedy at common law for the improper refusal of bail by the magistrates was ordinarily by writ of habeas corpus and that the only right to go from court to court or, but only in vacation, from judge to judge, was that provided by the Act of 1679.  With the passing of the Judicature Acts the former courts became one High Court, so that it was no longer possible in term time to go from court to court, but it was still possible, in vacation, to go from judge to judge.  By statute the Lord Chancellor is a judge of the High Court.”

I therefore take the common law in England (before it was altered by statute) to have been that an applicant for a writ of habeas corpus or bail had the right to apply to different courts in term time and different judges in vacation time if unsuccessful in an application.  However the applicant could not renew an application to the same court in term time.

26                  The common law in Australia appears to have adopted the approach taken in Eshugbayi Eleko (supra), although the law relating to bail has been regulated by statute for some considerable time:  see, for example, Bail Act 1977 (Vic), s 18(4) which prohibits further applications for bail unless the applicant was not represented or new facts or circumstances have arisen subsequent to the earlier application.  There are a number of cases which support the proposition that at common law an applicant for bail had the right to make successive applications for bail to different judges of the same court if an earlier application for bail was refused.  In R v Kerr, ex parte Groves (1973) Qd R 314 the Queensland Full Court said at 316 that the decision in Eshugbayi Eleko (supra) “must be accepted as stating the law in Queensland”.  In Tobin v Minister for Correctional Services (1980) 24 SASR 389 the Full Court of the Supreme Court of South Australia expressly followed Eshugbayi Eleko (supra).  At 392‑393 King CJ (with whom the other members of the Court agreed) said:

“The traditional view has been that an application for a writ of habeas corpus may be taken from court to court (in a jurisdiction in which there is more than one court with power to grant the remedy) and from judge to judge.  Although this view has been question in England (In re Hastings (No 2); In re Kray), it is authoritatively established as the law of South Australia by the decision of the Privy Council in Eshugbayi Eleko v. Government of Nigeria (Officer Administering).  Ex parte Partington (which was referred in the Eleko case with apparent approval) is authority for applying to the Full Court de novo for habeas corpus notwithstanding that a similar application has been refused by a Judge of the Court.”

27                  In Regina v Fraser and Jacobs (1892) 8 WN (NSW) 144 the Chief Justice, sitting as a member of the Full Court said at 144:

“As Mr Wise has pointed out, a separate application [for bail] might have been made to each judge of the Supreme Court, one after the other.”

(See also Ex parte Rowlands (1895) 16 NSWR 239 at 246, R v Higgs (1962) 79 WN (NSW) 335, Williamson v The Director of Penal Services [1959] VR 205 at 206 but see Ex parte Williams: Re Poundall (1931) 48 WN (NSW) 228).

28                  In R v Malone (1903) St R Qd 140, Griffith CJ said at 141‑142:

The application for bail by summons is in substitution for the old mode of making application for habeas corpus, and the Courts in England, in administering the law in relation to that writ, have always held that an applicant for a writ may go to one Court after another, and that no Court was bound by the view taken by any other.  We do not think that the right to apply to each of the Judges in succession has been altered by s. 10 of The Judicature Act.”

This passage was cited and followed by the Queensland Full Court in R v Hughes [1983] Qd R 92 at 93.

29                  The applicants submitted that none of these authorities referred to a requirement that additional facts or fresh grounds be demonstrated before the common law right could be exercised and that no such restriction applied at common law.  The observations in In re Hastings (No 2) (supra) and In re Cobbett (supra) referred to above (par 24) suggest to the contrary, certainly so far as an application to the same court is concerned.  However none of the Australian cases deal specifically with the issue as to how a judge’s discretion might be exercised on a further application for bail, based on the same facts as were before the judge who refused the earlier application.  Whether the facts and circumstances have changed between the applications appears to be a matter for the exercise of discretion rather than a matter of jurisdiction to entertain the application.

30                  Having regard to the authorities to which I have referred, I take the common law applicable to bail in Australia at the time of the enactment of the Extradition Act to be that successive applications for bail could be made to different courts and to different judges of the same court. 

31                  I consider that upon the proper construction of s 21(6)(f)(iv) an applicant is not precluded from making a further application for bail after a previous application for bail has been unsuccessful.  There is no express limitation in the subsection on such right and I do not consider that such right is excluded by implication.  Any such implication would have the effect of removing the common law right to make successive applications for bail and, consistently with the authorities to which I have referred, such an intention does not appear from the terms of the statute. 

32                  The existence of the requirement of “special circumstances” justifying release on bail supports the construction to which I have referred.  The concept of “special circumstances” has been considered in a number of cases:  Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 at 74, Wu v Attorney‑General of the Commonwealth (1997) 79 FCR 303 at 307; Bertran v Minister for Justice (1999) 165 ALR 155 at 161.  It is clear from these cases that it is necessary to find circumstances which are different from the circumstances which ordinarily apply in usual type of extradition case where a person is expected to be kept in custody and which by their nature warrant a more favourable view in relation to the grant of bail.  It is not unreasonable to expect that circumstances applicable to a person held in custody under the Act might change from time to time.  The requirement that “special circumstances” exist is a recognition not only of the threshold which an applicant for bail must overcome but also a reflection of the fact that if at any time special circumstances exist they can be brought before the Court as a justification for the grant of bail.

33                  Although s 21(6)(f)(iv) may give a right for successive applications for bail if the appropriate special circumstances exist, I do not consider that an applicant is at large on each subsequent bail application in relation to the subject‑matter or circumstances on which he or she may rely.  There is no doubt that the requirement for the existence of “special circumstances” must exist each time an application for bail is made.  That requirement, found in the Act, is consistent with the common law position in extradition cases which requires the power to grant bail to be exercised with “extreme care and caution”:  Wu v Attorney‑General of the Commonwealth (supra) at 306‑307.

34                  I consider that a further application for bail after an earlier application has been refused requires special circumstances to exist which are circumstances which did not exist at the time the earlier bail application was made.  Putting the matter another way, I consider that the special circumstances  required in the subsequent or succeeding bail application must be circumstances which are, in effect, a change in the circumstances which existed at the time of the earlier bail application or are circumstances which have arisen since that time. 

35                  The applicants submitted that the common law right to make a fresh or further application for bail did not entail or require fresh facts or grounds.  That may be so in the sense that the principle that successive bail applications could be made did not, as part of the principle, require that subsequent applications be made in relation to changed circumstances.  However, as a matter of practice that was the position adopted by the courts.  For example, in Director of Public Prosecutions v Kanfouche [1992] 1 VR 141 the Appeal Division of the Supreme Court of Victoria said at 144‑145:

“Yet there is not in the common law jurisdiction of the Supreme Court any right of appeal from a refusal of a grant of bail by one judge of the court to the Full Court, or, indeed, to another judge of the court.  Rather, there was, and is, a right of fresh application to another judge of the court, whose success will depend, inter alia, upon some change in circumstances.”

(See also In re Hastings (No 2) (supra); In re Cobbett (supra)).

This observation appears to relate to the common law jurisdiction of the Court rather than its statutory jurisdiction which prevented fresh applications unless the applicant had been unrepresented at the first application or new facts and circumstances had arisen.

36                  In Re Edwards (1988) 92 FLR 96, McPherson J considered whether the provisions of the Bail Act 1980 (Qld) precluded the right to make successive applications for bail to different judges prior to the commencement of a trial.  McPherson J said at 99:

“The true position is, it seems to me, that refusal of an application for bail does not have the effect of automatically precluding a further like application; but its practical effect is that any further application will, unless supported by additional relevant facts, be ‘fruitless’, to adopt the term used by Taylor J in Hall v Nominal Defendant (1966) 117 CLR 423 at 440‑441; cf also Ex parte Britt [1987] 1 Qd R 221 at 226‑227.”

The question then arises whether the changed circumstances or additional facts relied upon must be circumstances or facts which have arisen subsequent to the earlier bail application or whether it is sufficient that they existed at the time of the earlier bail application but were not relied upon or placed before the court at the time.

37                  I have reached the conclusion that where information or knowledge of circumstances is available to an applicant and such information or knowledge is not used at the time of a bail application to support a particular ground relied upon for the application, it is not appropriate that information or knowledge of circumstances be relied upon as constituting special circumstances for the purposes of a subsequent bail application under s 21(6)(f)(iv).  One may accept that there is a right to make successive bail applications but that does not mean that an applicant should have the right to run the same point or mount the same argument time and again before the same or different judges.  The law does not allow that situation to occur in analogous circumstances. 

38                  I refer, for example, to the situation where evidence otherwise available is not called in a criminal trial and the accused seeks, on appeal, to have a new trial on the ground that because the evidence was not called, the trial was unfair.  In Ratten v The Queen (1974) 131 CLR 510 Barwick CJ said at 517:

“It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial.  Great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial, and it will probably be only in an exceptional case that evidence which was not actually available to him will be denied the quality of fresh evidence.  But he must bear the consequences of his own decision as to the calling and treatment of evidence at the trial.

            Thus, there will be no miscarriage simply because evidence which was available to him actually or constructively was not called by the accused, even though it may appear that if that evidence had been called and been believed a different verdict at the trial would most likely have resulted.  The accused, nevertheless, will have had a fair trial.  But if the new evidence does qualify as fresh evidence it can be said that the trial was not fair.  Of course, if by reason of new evidence accepted by it though it may not be fresh evidence, the court is either satisfied of innocence or entertains such a doubt that the verdict of guilty cannot stand, the fact that the trial itself has been fair will not prevent the court upon that evidence quashing the conviction."

In Re Knowles [1984] VR 751 the Full Court of the Supreme Court of Victoria cited this passage and continued at 770:

“Amongst the various defects or omissions which may lead a trial to become unfair and to amount to a miscarriage of justice are circumstances which may be treated as vitiating the volition or choice by an accused or his lawyers to follow or refrain from following some course at the trial.  Some factors capable of amounting to vitiating factors, which are mentioned in the cases, are fraud, mistake, surprise, malpractice and misfortune, and, with particular reference to defence lawyers, inexperience, remissness, defect of judgment or neglect of duty …”

The courts have taken the view that if evidence was available at the time of the trial, in the absence of vitiating factors, evidence which was available or which could reasonably be regarded as having been available and which was not called, would normally not furnish a ground for overturning a conviction:  R v Hadland [1969] VR 725 and the cases therein cited.  The observation of Latham CJ in Green v The King (1939) 61 CLR 167 is apposite in this context.  At 176 the Chief Justice said:

“There is grave risk of impeding the administration of justice if new trials are readily granted upon the ground of discovery of fresh evidence.  If persons who become subject to the processes of the law were allowed to try again because they had chosen not to use evidence which was available or which with reasonable diligence could have been discovered by them, legal proceedings would tend to become interminable and grave injustice would, in practice, result in many cases.”

39                  There is also an analogy with the situation which arises in civil trials where it is sought, on appeal, to rely upon further evidence.  At common law, in order to obtain a new trial on the ground of the discovery of fresh evidence, it was necessary to overcome the threshold that the evidence in question was not available at the trial and could not have been obtained by the exercise of reasonable diligence:  Council of the City of Greater Wollongong v Cowan (1995) 93 CR 435 at 444; Orr v Holmes and Anor (1948) 76 CLR 632 at 635; Commonwealth Bank v Quade and Others (1991) 178 CLR 134 at 140.

40                  The authorities and principles to which I have referred are an answer to the submission of the applicants (which I reject) that they are not precluded from relying on facts and raising arguments that their previous lawyers chose not to rely upon or advance at the earlier bail application.

41                  It follows from this analysis and these conclusions that the applicants should not be allowed to raise, as special circumstances justifying the grant of bail, a number of the matters referred to in the affidavits upon which they seek to rely.  I refer in particular to the affidavits which were either sworn, or finalised in preparation for swearing, on 22 and 23 December 1999, the evidence relating to the applicants’ personal and business circumstances and activities prior to the hearing of the earlier bail application and the evidence directed to the issue that Australia has failed to comply with its obligations under the International Covenant on Civil and Political Rights in relation to the manner in which it is holding the applicants in prison.  I also include within this category evidence directed to the proposition that the case against the applicants is not strong whether on the basis of the “Amparo” proceedings or the fact that it is contended that Mr Cabal was not at relevant times a director or employee of Banco Union.  I also include the ground that the Extradition Act is unconstitutional.  It has not been shown that the existence of that ground was not available to the applicants at the time of the earlier bail hearing.  The applicants will be able to argue that ground at the review hearing, scheduled to commence on 3 April 2000.

42                  I therefore rule that I will not allow into evidence, for the purpose of the application for bail, evidence relating to:

·                    The applicants’ personal and business circumstances and activities prior to the earlier bail hearing;

·                    Refutation of Mr Kelly’s evidence that Sirius East is a safe environment and that the applicants were transferred there for their own protection;

·                    Refutation of the evidence that the decision to place the applicants on the high security transport list was based on the reason that Mr Cabal had offered a prisoner money to assist an escape;

·                    The applicants’ state of mind when they determined to remain outside Mexico and the reasons why they sought to avoid arrest by the Mexican authorities;

·                    The contention that the applicants’ legal and political status in Mexico is now significantly different than was the position in 1994, which position would be undermined if they chose to abscond;

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

·                    Affidavits which were either sworn, or prepared for the purposes of swearing, prior to the conclusion of the earlier bail hearing;

·                    The conditions under which the applicants were kept in custody prior to the earlier bail hearing;

·                    The submission that Mr Cabal was not at relevant times a director or employee of Banco Union.

43                  I will not at this stage formally rule on particular affidavits as it may be necessary to allow in some of the evidence in respect of the grounds which it is open to the applicants to advance.  When the hearing resumes and the applicants come to tender formally the evidence on which they rely I will rule on the admissibility of the affidavits or particular passages in them consistently with this ruling.

44                  The costs of this preliminary ruling will be dealt with as costs in the application for bail.

Associate:

Dated:              15 March 2000