FEDERAL COURT OF AUSTRALIA

 

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

 

EXTRADITION – review of determination of eligibility for surrender by magistrate – nature of review process – nature of function conferred on magistrate and court – constitutional validity – Extradition Act 1988 – approach to construction – construction by reference to rules of construction for international treaties – ordinary meaning of words and purpose of statute – request for extradition – supporting documents – no inquiry into foreign law – criteria for characterisation of documents issued by requesting country as “warrants” – ordinary meaning – due authentication – whether required for translations accompanying supporting documents under treaty provisions – sealing - whether one seal covers multiple documents – signing and certification – apostilles under Hague Convention – translation – where required – whether partial translation of warrants sufficient – translation of statements of offences, penalties and conduct – reliability – legibility of supporting documents – what constitutes a “copy” – partial illegibility – statement of conduct – sufficiency – more than one offence in a statement – whether specific allegation of conduct to offence required – double criminality – Extradition Objections – purpose of prosecution or punishment for political opinions – purpose – political opinions – assessment on premise that offences committed – substantial grounds – what is necessary to establish – prejudice – on account of political opinions – exclusion of material by magistrate – judicial review of magistrate’s decision – whether subsumed in s 21 review.

 

CONSTITUTIONAL LAW – separation of powers – review by Court of magistrate’s administrative decision – whether exercise of judicial power – nature of review.

 

WORDS AND PHRASES “review”, “duly authenticated”, “sign”, “certify”, “seal”, “substantial grounds”, “political opinions”.

 

Extradition Act 1988 s 3, s 12, s 16(1), s 19, s 21,  s 22, s 5, s 6. S 7, s 10(2), s 10(3), s 11, s 46

Extradition (United Mexican States) Regulations 1991 reg 4, reg 5

Judiciary Act 1903 (Cth) s 39B(1A)

Extradition (Foreign States) Act 1966

Federal Court of Australia Act s 35(6)

Criminal Federal Procedure Code Article 25

Bertran v Vanstone (2000) 173 ALR 63

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

Wiest v Director of Public Prosecutions (1988) 23 FCR 472 cited

Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 followed, discussed

Zoeller v Federal Republic of Germany (1989) 23 FCR 282 cited, followed

Todhunter v United States of America (1995) 57 FCR 70 cited

Papazoglou v Republic of the Philippines (1997) 74 FCR 108 cited

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 cited

Bannister v See (1982) 42 ALR 78 cited

Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 cited

Builders Licensing Board v Sperway Construction (Syd) Pty Ltd (1976) 135 CLR 616 cited

Phillips v Commonwealth (1964) 110 CLR 347 cited

Aston v Irvine (1955) 92 CLR 353 cited

Woss v Jacobsen (1985) 60 ALR 313 cited

Sheahan v Joye (1995) 57 FCR 389 cited

State of Western Australia v Strickland [2000] FCA 652 cited

Powder Family v Registrar, National Native Title Tribunal [1999] FCA 913 discussed

Abebe v Commonwealth (1999) 162 ALR 1 cited

Kainhofer v Director of Public Prosecutions (No 2)  (1996) 70 FCR 184 followed

Republic of South Africa v Dutton (1997) 77 FCR 128 discussed

Cabal v United Mexican States (No 2) (2000) 172 ALR 743 discussed

Cominos v Cominos (1972) 127 CLR 588 followed

R v Quinn Ex parte Consolidated Foods Corporation (1977) 138 CLR 1 cited followed

Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 cited

R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1971) 123 CLR 361 cited

Precision Data Holdings Ltd v Willis (1991) 173 CLR 167 cited

R v Davison (1954) 90 CLR 353 cited

Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 cited

Trimbole v Dugan (1984) 3 FCR 324 cited

Dutton v Republic of South Africa (1999) 84 FCR 291 discussed

Queensland v Commonwealth (1989) 167 CLR 232 cited

Koowarta v Bjelke-Petersen (1982) 153 CLR 168 cited

Yager v R (1977) 139 CLR 28 cited

Polites v Commonwealth (1945) 70 CLR 60  cited

Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority (1995) 56 FCR 406 cited

James Buchanan & Co Ltd v Babco Forwarding & Shipping (UK) Ltd [1978] AC 141 cited

The Shipping Corporation of India Ltd v Gamlen Chemical Co (A/Asia) Pty Ltd (1980) 147 CLR 142 cited

Fothergill v Monarch Airlines Ltd [1981] AC 251 cited

Riley v Commonwealth (1985) 159 CLR 1 cited

Minister for Foreign Affairs v Magno (1992) 37 FCR 298 cited

Applicant A v Minister for Immigration and Ethnic Affairs (1998) 190 CLR 225 cited

Re Bolton Ex parte Beane (1987) 162 CLR 514 cited

R v Horseferry Road Magistrates’ Court; Ex parte Bennett [1994] 1 AC 42 cited

Schlieske v Federal Republic of Germany (1987) 14 FCR 424 discussed, followed

Prabowo v Republic of Indonesia (1995) 61 FCR 258 cited

De Bruyn v Republic of South Africa (1999) 96 FCR 290 cited

Timar v Republic of Hungry [1999] FCA 1518 cited

Scott v Cawsey (1907) 5 CLR 132 cited

Beckwith v R (1976) 12 ALR 333 cited

Government of Belgium v Postlethwaite [1988] 1 AC 924 cited

Cheng v Governor of Pentonville Prison [1973] AC 931 cited

Government of Canada v Aronson [1990] 1 AC 579 cited

Zoeller v Federal Republic of Germany (1988) 19 FCR 64 cited

Harris v Attorney-General (Cwth) (1994) 52 FCR 386 discussed, followed

Ichiyo Ujiie v Republic of Singapore  (unrep Fed Court 18/10/95 Wilcox J) cited

Timar v Republic of Hungry [2000] FCA 755 followed

Kainhofer v Director of Public Prosecutions (No 1) (1994) 52 FCR 341 cited

Federal Republic of Germany v Parker (1998) 84 FCR 323 cited

Haddad v Larcombe  (1989) 42 A Crim R 139 cited

Federal Republic of Germany v Haddad (1990) 21 FCR 496 cited

McDade v The United Kingdom [1999] FCA 1868 followed

Prevato v Governor, Metropolitan Remand Centre (1986) 8 FCR 358 cited

Prabowo v Republic of Indonesia (1997) 74 FCR 599 cited

R v Bow Street Magistrates’ Court; Ex parte Vandenholst (1986) Cr App R 114 cited

Ex parte Bennett; re Cunningham (1966) 68 SR(NSW) 15 cited

R v Evans [1994] 1 WLR 1006 cited

Jahazi v Minister for Immigration and Ethnic Affairs (1995) 61 FCR 293 cited

State of Wisconsin v Armstrong (1973) 10 CCC 2d 271 cited

Stanton v Republic of the Philippines (unrep Fed Court 12/1/93) cited

R v Governor of Pentonville Prison  Ex parte Teja (1971) 2 QB 274 discussed

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 discussed

Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106 discussed

Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 discussed

Brown Re Classification Review Board (1998) 82 FCR 225 cited

Pearce and Geddes, Statutory Interpretation in Australia, 4^th Edition, Butterworths (1996) at 2.23, 9.7

Aughterson, Extradition – Australian Law and Procedure, Law Book Co, 1955 pp 20-24

Corpus Juris Secundum, Vol 35

CARLOS CABAL PENICHE and MARCO PASINI BERTRAN v UNITED MEXICAN STATES, LISA HANNAN and COMMONWEALTH OF AUSTRALIA

V 728 of 1999

 

 

 

 

FRENCH J

29 AUGUST 2000

PERTH (Heard in Melbourne)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 728 OF 1999

 

BETWEEN:	CARLOS CABAL PENICHE FIRST APPLICANT   MARCO PASINI BERTRAN SECOND APPLICANT
AND:	UNITED MEXICAN STATES FIRST RESPONDENT   LISA HANNAN SECOND RESPONDENT   COMMONWEALTH OF AUSTRALIA INTERVENING
JUDGE:	FRENCH J
DATE OF ORDER:	29 AUGUST 2000
WHERE MADE:	PERTH (Heard in Melbourne)

 

THE COURT ORDERS THAT:

 

1.         The decision of the First Respondent made on 17 December 1999 that the First and Second Applicants are eligible for surrender to the United Mexican States in relation to the offences set out in Annexure 1 and 2 to this order is confirmed.

 

2.         The application for judicial review is dismissed.

 

3          The Applicants are to pay the Second Respondent’s costs of the application.

 

4.         Liberty to the Commonwealth of Australia to apply within fourteen days on the question of costs of its intervention on the Constitutional point.

 

 

 

 

 

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

 

ANNEXURE 1

 

EXTRADITION OFFENCES IN RELATION TO WHICH CARLOS CABAL IS ELIGIBLE FOR SURRENDER TO THE UNITED MEXICAN STATES

 

·        Being an employee and officer of a credit institution who authorised transactions, being aware that such transactions will result in loss to the institution to which he renders his services, contrary to Article 112 section V of the Law of Credit Institutions of Mexico (6 counts);

 

·        Being an employee and officer of a credit institution who granted credit to individuals or corporations whose insolvency condition is known to him, if it is foreseeable, at the moment of the execution of the transaction, that the individual or corporation lacks the financial capacity to pay or who is responsible for the total of the credited sums, deriving in economic loss to the institution, contrary to Article 112 section V(c) of the Law of Credit Institutions of Mexico (5 counts);

 

·        Being an employee and officer of a credit institution who renewed partially or totally overdue credits to individuals or corporations referred to in Article 112 section V(c) of the Law of Credit Institutions of Mexico, contrary to Article 112 section V(d) of the Law of Credit Institutions of Mexico (4 counts);

 

·        Being an employee and officer of a credit institution who knowingly allowed a debtor to divert the total of the credit to his own benefit or that of third parties, and as a consequence, resulted in economic detriment to the institution, contrary to Article 112 section V(e) of the Law of Credit Institutions of Mexico (5 counts);

 

·        Being an employee and officer of a credit institution who intentionally omits to register transactions carried out by the institution or who alters the registers so as to conceal the true nature of transactions carried out thereby affecting the state of the assets, liabilities contingent accounts or profits, contrary to Article 113 of the Law of Credit Institutions of Mexico (2 counts);

 

·        Being an employee and officer of a credit institution who either by himself or through an intermediary, unduly receives from his clients a benefit as a determining condition to carry out a transaction, contrary to Article 114 of the Law of Credit Institutions of Mexico (1 count); and

 

·        Fraud, contrary to Article 386 of the Federal Criminal Code in Matters of Common Law for the Federal District and in Federal Matters for the Republic of Mexico (3 counts);

 

·        Tax Fraud Comparable, contrary to Article 109 section 1 of the Federal Tax Code of Mexico (2 counts);

 

·        Falsely Declaring Losses, contrary to Article 111 section IV of the Federal Tax Code of Mexico (1 count);

 

·        Being an employee and officer of a credit institution who granted credit to individuals or corporations whose insolvency condition is known to him, if it is foreseeable, at the moment of the execution of the transaction, that the individual or corporation lacks the financial capacity to pay or who is responsible for the total of the credited sums, deriving in economic loss to the institution, contrary to Article 112 section V paragraph (c) of the Law of Credit Institutions of Mexico (1 count); and

 

·        Money Laundering, contrary to Article 115 Bis section 1 paragraph (b) of the Federal Tax Code of Mexico (1 count).

ANNEXURE 2

EXTRADITION OFFENCES IN RELATION TO WHICH MARCO PASINI IS ELIGIBLE FOR SURRENDER TO THE UNITED MEXICAN STATES

 

·        1 count of wilfully helping Carlos Cabal Peniche to commit the following crime: being an employee and officer of a credit institution who granted credit to individuals or corporations whose insolvency condition is known to him, it if is foreseeable, at the moment of the execution of the transaction, that the individual or corporation lacks the financial capacity to pay or who is responsible for the total of the credited sums, deriving in economic loss to the institution, contrary to Article 112 section V(c) of the Law of Credit Institutions of Mexico in connection with Article 13, section VI of the Federal Criminal Code in Local Matters for the Federal District and in Federal Matters for the Republic of Mexico;

 

·        1 count of wilfully helping Carlos Cabal Peniche commit the following crime: being an employee and officer of a credit institution who knowingly allowed a debtor to divert the total of the credit to his own benefit or that of third parties, and as a consequence, resulted in economic detriment to the institution, contrary to Article 112 section V(e) of the Law of Credit Institutions of Mexico in connection with Article 13, section VI of the Federal Criminal Code in Local Matters for the Federal District and in Federal Matters for the Republic of Mexico; and

·        1 count of concealment contrary to Article 400, section II of the Federal Criminal Code in Local Matters for the Federal District and in Federal Matters for the Republic of Mexico.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 728 OF 1999

 

BETWEEN:	CARLOS CABAL PENICHE FIRST APPLICANT   MARCO PASINI BERTRAN SECOND APPLICANT
AND:	UNITED MEXICAN STATES FIRST RESPONDENT   LISA HANNAN SECOND RESPONDENT   COMMONWEALTH OF AUSTRALIA INTERVENING

 

JUDGE:	FRENCH J
DATE:	29 AUGUST 2000
PLACE:	PERTH (Heard in Melbourne)

REASONS FOR JUDGMENT

Introduction

1                     On 11 November 1998, Carlos Cabal Peniche and his brother-in-law, Marco Pasini Bertran, were arrested in Melbourne by the Australian Federal Police following requests for their extradition, received by Australia from the United Mexican States.  The offences for which the extradition is sought relate to breaches of Mexico’s Law of Credit Institutions in connection with the affairs of a bank called Banco Union, of which Cabal was Chairman.  Large sums of money, including one individual amount of $US100 million were said to have been involved.  The provisions of Mexican law allegedly breached relate to improper or fraudulent conduct by officers and employees of credit institutions. 

2                     The endeavour by Mexico to extradite Messrs Cabal and Pasini has led to substantial litigation.  The primary extradition hearing before Her Worship, Ms Hannan SM, occupied  sixty nine days of evidence and argument.  The proceedings in this Court upon review of that decision, occupied eight days of argument, the written submissions, evidence, exhibits and other materials put before the Court occupying some sixty five substantial files.

3                     The guilt or innocence of Messrs Cabal and Pasini has not been in issue before the magistrate or before this Court on review.  Nor is it a matter which either the magistrate or this Court can determine in these proceedings.  That will be a matter for the Mexican courts in the event that the applicants are surrendered to Mexico.  What has been raised is a substantial number of objections to the surrender including the following:

1.         That the Extradition Act 1988 is unconstitutional.

2.         That documents said to be warrants for the arrest of Cabal and Pasini under Mexican law, are not warrants.

3.         That the translations of the Spanish language documents supplied by Mexico to the Australian Government and the Spanish language documents themselves were not duly authenticated – not being sealed and signed or certified as required by the Act.

4.         The translations provided were partial or unqualified or unreliable.

5.         The documents provided by Mexico were illegible or incomplete.

6.         The statements of conduct alleged against the applicants did not comply with the requirements of the Extradition Act.

7.         The surrender of the applicants is sought in order to prosecute them for their political opinions and if surrendered they may be prejudiced because of those opinions.

In addition, the magistrate is said to have erred in various ways by failing to take into account relevant material, evidence and submissions and by applying wrong legal tests.

4                     For the reasons which follow, I am satisfied that the magistrate’s decision should be confirmed.  None of the objections taken by the applicants is sustained.  This does not involve any finding as to the guilt or innocence of the offences alleged against them.

5                     The reasons that follow begin with an outline of the factual background, including the history of events leading up to the issue of warrants in Mexico against Cabal and Pasini and their departure from that jurisdiction. This background draws in part on some material contained in Cabal’s proof which was submitted to the magistrate but not all of which was permitted to be led in evidence.  It is referred to as part of Cabal’s own account of his early commercial history.   The factual background generally does not canvass the conduct said to constitute the offences.  It does, however, provide some context for the contention by Cabal and Pasini that they are being prosecuted for their political opinions or that they may suffer prejudice on account of such opinions if surrendered to Mexico.

Factual Background

6                     Carlos Efrain de Jesus Cabal Peniche (Cabal) is a citizen of Mexico.  He describes himself as an entrepreneur.  He was born in 1956 in the south-eastern State of Yucatan at a place called Merida but grew up at Villahermosa in the State of Tabasco.  His father was a grocer.   Cabal went to primary school in Villahermosa from 1960 to 1967.  During that time his father became a significant local businessman.  He diversified his store, opened Tabasco’s first supermarket in 1965, a real estate business in 1966, a hotel in Villahermosa in 1967 and in the same year became President of the Chamber of Commerce. Cabal spent his last year of  secondary education at a Catholic school in Mexico City.  In 1974 he began studying for a degree in business administration in tourism at the Universidad Anahuac. 

7                     Marco Pasini Bertran (Pasini) was born in Mexico City.  His sister, Teresa, is married to Cabal.  The Pasini family was involved in construction and steel smelting businesses started by his maternal grandfather who came to Mexico from Spain after the Spanish civil war.  Pasini went to University Novo Mondo from which he graduated in engineering in 1989.  For a couple of years after graduation he worked for a company involved in the production of pumps.  Subsequently he started his own franchise business called “Lasergraphics”.  This and similar businesses in which he became involved were successful. 

8                     In 1976, the year in which Cabal met his wife to be, Teresa Pasini, his father’s business suffered from devaluation of the Mexican currency.  While still at University Cabal took over the running of his father’s chicken processing business in Mexico City.  When the Mexican economy improved in the course of what he called the “oil boom” years, he expanded and modernised the chicken business.  He acquired refrigerated transport trucks to provide fresh produce to Mexico City markets.   In 1977 he opened a new warehouse.  With that opening  he became a major chicken distributor in Mexico. 

9                     Subsequently, however, with the growth of his business he suffered from what he called a “price war” initiated by a large competitor.  At one point his plant was closed by the Department of Health of the State of Guanajuato on the grounds that it was too close to a primary school.  He contends that the Department of Health was headed by a member of the family that owned his major competitor.  He eventually reopened the plant but had taken on a greater debt burden during its closure.  As a result of devaluations of the Mexican currency in 1982 his business debts, which were in US dollars, doubled and then trebled.  His father also experienced economic problems at that time.  In the event, Cabal says he had to close down his chicken business, his father sold their house in Mexico City and he returned to Tabasco.   In 1981 he was charged with issuing a cheque with insufficient funds and was arrested.  The charge was dismissed or withdrawn in 1984 following a change in the law. Cross-examination and documentary evidence tendered about this incident before the learned magistrate went to whether there had been a failure by Cabal to comply with conditions of bail while the charge was pending.  It was said to go to his credibility.  It has at best a marginal significance for these proceedings. 

10                  Cabal claims that by the end of 1983 he had put in place repayment agreements with all of his outstanding business creditors and started work on some subdivision projects on two parcels of land free of any charges.  One parcel was in Yucatan and the other in Veracruz.  These subdivisions were successful so that by 1984 almost all of his creditors were repaid and he had some start-up capital for a new business venture.  He gives an account of his involvement in the shrimp business.  He made contact with co-operatives of shrimp fishermen in Campeche which is located between Tabasco and Yucatan.  He offered to incorporate a company in the United States that would buy shrimp direct from them.  He bought a plant on the Island of Ciudad del Carmen off the coast of Campeche and arranged for export of the produce to a company in Florida called Ladex Corporation, owned by a family of Cuban Americans.  However his first shipment was stopped at the border by Mexican authorities who claimed that he had inadequate documentation.  Cabal says he organised a meeting of all the co-operatives in Campeche, told them this was their only opportunity to become independent from the government monopoly buyer and to get better prices for their product.  The fisherman agreed to support him and, on his account of it, all 350 shrimp boats went on strike in support of the release of his shipment.  He negotiated with the relevant Minister of the Mexican Government who agreed to release his container on the basis that he would never organise another strike, that he would buy only a limited amount of shrimp and that if other co-operatives wanted to export through his company it would have to be subject to agreement with the principal wholesaler. 

11                  In 1985, according to Cabal, he had reached the position that almost all co-operatives were selling to his company.  He opened two shipyards so that when fishermen arrived at port they could take their ships direct to the shipyards for urgent repairs.  He claimed that the operation was very efficient, the fishermen were happy and exports were increasing and he was employing around 400 people.  By 1986 his shrimp business had become one of the most important export industries of the region.  At or about that time he was visited by representatives of an investment banker called Rodrigo Rocha who was interested in investing in Mexico and particularly in the export business.  He made Cabal a good offer, which he accepted, for thirty per cent of his shrimp businesses.  Subsequently Rocha took over the whole of the business.

12                  Cabal began looking for new business opportunities.  He became involved in banana production.  He acquired land in Tabasco and hired somebody knowledgeable in the business. He ran into industrial difficulties with unions.  These were not able to be resolved by negotiation.  He claims that the governor of Tabasco, Salvador Neme, became concerned that he would become too powerful to be controlled and tried to have him shut down by using the disruptive good officers of a union organiser, Isido Morales. Subsequently however through the intercession of Patrocinio Gonzales, the Govenor of Chiapas, Cabal’s relationship with the State government improved. 

13                  The first containers of bananas from the plantations went to the United States in 1988.  The marketing vehicle was a company called Continental Fruit.  However the quality of the product delivered into the United States was affected by Cabal’s dependence on road transport over poor quality roads.  So he leased cargo ships to transport the produce by sea.  This involved reopening a port near Villahermosa called Frontera Port.  The arrival of the first ship and the reopening of the old port was, he said, an important political event.  He started getting invitations from the State Governor to attend conferences and meetings.  In 1988, Carlos Salinas was elected as President of Mexico.  

14                  Cabal diversified from bananas to pineapples and papayas and subsequently began an export joint venture with other producers.  Under the joint venture agreement he would manage their plantations and they would receive a certain amount for each box of bananas produced from their land.  This was, he claims, the first partnership between different families in the south east and it was, in his view, a remarkable achievement to get them all to sit together at the same table.  He made technology transfer agreements with other growers and charged a commission on the sale of their bananas on the basis that his companies would harvest their product.  This enabled him to get enough bananas to keep the ships working.  He developed a close relationship with the Governor of Chiapas where he bought land to establish banana plantations.  He began travelling more to Chiapas to promote agriculture.  He claims to have had more and more contact with the ethnic Indian community in Chiapas, to have learned about the many serious problems facing them and the sorts of social and economic development that was needed to improve their living and working conditions.  By the end of 1989 Cabal said he had established a good relationship with the south-eastern governors, that is the governors of Tabasco, Chiapas and Campeche and other politicians in the region.  He had also, in his view, consolidated his relationship with his financiers, Eastbrook.  They had a thirty per cent equity in his plantation business.  By this time his third child was born.  He was running close to 10,000 hectares of banana plantations on land which he owned, land which he had access through joint ventures and land belonging to third parties.  These ventures employed about 20,000 people.  By this time, according to Cabal, he was the fifth largest exporter of bananas to the United States. 

15                  Cabal entered into other export ventures including parquetry and marble.  He developed those businesses by importing technology from Germany and Italy and exporting the finished products to the United States.  He established training courses in the new technologies that he had brought into the region.  He became actively involved with the Catholic Church and in particular a French Priest who had come to Mexico seventeen years earlier.  The Priest was running a Foundation which was established to help poor priests in Mexico.  Cabal claims to have developed a concern about the people of the south-eastern States of Mexico.  He thought there was a need to develop that region of Mexico. One of the obstacles was the attitude of the business people there.

16                  In 1991 President Salinas, visited the State of Campeche and through the intercession of the Governor of Campeche officially opened the parquetry plant.  This was the first contact that Cabal had had with the President.  He admired him for the way he had changed Mexico’s international image.  He knew of its improvement by virtue of his involvement with the US side of his operations.  He saw Salinas as trying to enhance Mexico’s international standing and participation in global markets by promoting the formation of companies and businesses that could compete internationally.  He also saw him as having been important in the establishment of a free trade agreement with the United States.  In 1990 Salinas had announced his intention to privatise Mexico’s banks.  At that time all of them were government owned.  Those which had been in private hands had been nationalised by President Portillo in the early 1980’s.  General rules governing the auctioning of the banks were published which set out decentralisation of banking services as one of the government’s objectives. (T 4451) At the opening of the plant on 13 June 1991, Salinas invited investors to participate in the privatisation program he had announced the previous year.  He encouraged Cabal and other businessmen to organise a group to buy a bank that could help finance development in the south-east.  Cabal took what he said seriously and organised a group to bid for one of the banks. 

17                  Cabal gave evidence to the magistrate that at this time he had formed what his counsel described as “political beliefs”.  In summary these beliefs were as follows:

1.         He should have the right to work and develop his region free from any political interference or from vested interests including groups with political and economic power in the country.

2.         He had a right to an opinion as to the role of government in the growth of Mexico.

3.         He had a right to support or not support candidates for political office based on their policies.

4.         He was entitled to resist instructions from government when the instructions involved abuse or excess of power.

These beliefs he conceded “might seem rather simple” but they “involved a number of difficulties when they were held in Mexico due to the way that country’s politics was conducted”.  There is no evidence of any public expression of these opinions prior to an open letter written by Cabal in November 1994 to which reference is made later in these reasons.

18                  Cabal arranged a group of like-minded investors to tender for the acquisition of one of the banks, then known as Banco BCH.  His stated objective was to support investment and development in the south-east which had been of little interest to traditional money centres in the Centre and the North.  He registered his group of investors with the Mexican Ministry of Finance as prospective tenderers in about September 1991.  Two people with whom he had to deal in connection with that tender were the Under Secretary, Guillermo Ortiz (Ortiz), and the Minister himself, Pedro Aspe (Ape).  Cabal described Ortiz as a powerful man who effectively ran many areas of the Ministry of Finance and who was the official charged with carrying out President Salinas’ bank privatisation program. Both Aspe and Ortiz were described in evidence from Professor Roett, a Professor of International Relations at John Hopkins University as “classic technocrats”.  This was a term he used to describe senior public officials with degrees in planning economics obtained from leading United States universities.

19                  On 11 October 1991, Aspe and Ortiz visited Tabasco in company with one Eduardo Creel.  They wanted to meet the south-east investors group.   Cabal met them at the airport.  Aspe introduced him to Creel whom he described as a person with experience in the financial sector.  After the meeting with the investors, Ortiz is said to have told Cabal to have a meeting with Creel to work out an agreement under which Creel could become part of the group so that he could participate in the bid for the bank.  Cabal gave evidence that the group of investors he assembled to bid for the bank had no previous experience in the banking industry and that they had always thought that professionals who had that experience would be in charge of managing the bank.  However it was elicited in cross-examination that Cabal was in fact a board member of a local bank (T4522), that one member of his group was president of the Regional Council for Bank Banpais in Tabasco (T4523), another member, Mr Naumann, was a member of the Regional Bank of Bancomer in Chiapas (T4523) and another, Mr Elek, had twenty years experience as Director-General of Citibank Mexico with great experience in the financial sector and had been an Assistant Director of the National Bank of Mexico (T4524-4525).

20                  Cabal met with Creel in Mexico City on 14 October.  He concluded after the meeting that the objective of the proposal was for the Creel family to assume control of the bank.  Creel wanted to be Director-General of the Bank and his father-in-law to be Chairman.  It was Cabal’s intention and that of his group that the south-east investors should control the bank and avail themselves of professional assistance in technical areas.   He declined to take Creel in as a partner. On 7 November 1991, the day before the tender was submitted, he was asked by Ortiz to come and see him at his office in the Finance Ministry.    Oritz asked him how much he would be offering for the bank.  Cabal said that he and his group had considered offering 2.65 times the capital of the bank as at September 1991.  Ortiz said that Creel’s group was seen as the strongest group to purchase the bank and if Cabal didn’t win the tender he would probably have the opportunity to win a tender for a subsequent bank.  Cabal explained, however, that since his group was just beginning in the financial field it would be very difficult for him to keep it together if it didn’t win the tender.  In the event, on the following day, he tendered a higher figure than that which he had indicated to Ortiz, namely 2.67 times the bank’s capital.  When the tenders were publicly opened on 8 November, his was the highest.  On the following day he was called in again to meet with Ortiz.  Also present was Victor Miguel Fernandez, the Vice-President of the National Banking Commission.  Ortiz, he said, indicated “some great irritation” when Cabal entered the room asking why he had lied to him with regard to the price they were willing to offer.  Cabal said what he had quoted was an approximate amount and that on subsequent consideration after 7 November, he and his group had decided that the price actually offered was in fact the most suitable one.  Ortiz said he would have to consult with Aspe and the President as to what would be done.  When Cabal left the room Fernandez who accompanied him to the door, said that his offer was the highest. Creel’s offer was 2.66 times the bank’s capital.  The margin was very small and some deliberations would have to occur to see what was to happen.

21                  At about midday on Sunday, 10 November, Cabal received a telephone call at home from Aspe who said words to the effect of “You might not believe this but you’ve won the bid”.  Aspe told him he should meet with Ortiz in the next few days to close the transaction which would be a matter of the signature and payment for the shares.  Creel was subsequently given a licence to establish a new bank in the south-east to compete with BCH Bank.  This was to be called the South-East Bank.

22                  The tender for the BCH Bank was governed by specific bidding rules published in a document referred to in cross-examination as the “Official Diary of the Federation”.  The rules provided, inter alia, that if the two highest bids were within five per cent of each other then it was open to the National Banking Commission to award the tender to either bidder.  It was accepted by Cabal in cross-examination that the difference between his bid and Creel’s lower bid was less than five per cent.  So if the government had been determined to favour Creel over Cabal, it could have done so within the terms of the bidding rules. The suggestion that somehow Cabal had engendered some long term resentment on the part of government because of his tactics in relation to the bid appears to be without any foundation.

23                  In March 1992, Cabal and his board were contemplating appointing a new managing director to the bank to replace the person who had been the incumbent at the time of purchase.  At a meeting he had about that time with Ortiz he informed him of their intentions.  Ortiz recommended that a Mr Reyes Retana, be appointed.  However the board of Banco Union, including Cabal, decided to appoint another candidate, Camberos.  When Cabal informed Ortiz of this decision at a meeting at the Bankers’ Club in Mexico City, he expressed great displeasure.  Cabal said it wasn’t a personal decision of his, but one made by the Board of Directors.  Ortiz said that he had had other plans for Camberos.  Ortiz told Cabal that he would have to get used to receiving and obeying instructions.  

24                  The Bank undertook an aggressive program to open new branches, seven or eight in the south-east and in other states to give it a national presence.  It also relocated some other six branches throughout the country. One of Cabal’s first priorities was to invest in a modern computer system.  It was a major concern of his that the Bank should be connected on-line with all its different branches.  He met regularly with Ortiz although they were not friendly.  Ortiz insisted on being informed in advance of any proposed funding in any of the south-eastern states.  Cabal explained to Ortiz that he thought the Credit Committees of the Regional Boards should be able to decide whether the relevant state governments were in fact worthy of receiving credit.  Cabal said he did not comply with Ortiz’ request on all occasions, although if he were aware of a particular state credit, he might inform Ortiz.  In general however, he left it to the Credit Committees in each state.

25                  In 1992, the United States fresh food conglomerate, Del Monte Fresh, became available for purchase.  Cabal promoted the possibility of an acquisition amongst other Mexican businessmen and, in particular, the National Finance Organisation.  On 6 August 1992, President Salinas attended a meeting at the Port of Dos Bocas in Tabasco with a group of businessmen, including Cabal, who were interested in undertaking the acquisition.  The price was of the order of $500 million.  It would be impossible for such a transaction to proceed without presidential blessing and the backing of the National Financiera and other financial interests.  Salinas seemed to be very interested so Cabal began to work on the process of putting together a bid.  On 20 August a consortium which he had assembled acquired Del Monte Fresh for half a billion dollars.  He was assisted by a Mr Cosio, appointed by the National Finance Organisation.

26                  Shortly after the successful bid for that company Cabal attended the Eighth Banking Convention held in Acapulco from 23 to 26 August.  He was asked to make a presentation about the project to the bankers attending the Convention. In the course of that Convention Aspe who was attending it, found the opportunity to speak privately with him and told him that he must understand that the possibility of the Del Monte acquisition being successful was basically dependent upon the government support that he was receiving.  He was reminded of what Ortiz had previously told him, namely that he should be aware that he had to follow the instructions and follow the line, an expression which Cabal described as “very common in Mexico”.  The acquisition of the Del Monte company was finalised on or about 5 November 1992.

27                  On 30 April 1993, a letter was sent to Banco BCH from the National Banking Commission of Mexico advising that the Commission wanted to undertake a routine audit under Article 123 of the Credit Institutions Act. (T 4544)  An audit was carried out and on 27 July 1993 a letter sent to the Bank advising of irregularities. (T 269/T4547)  The letter was marked for the attention of Mr Jamie Collantes Ortega, the Director-General of the Bank. According to Cabal, Collantes did not raise the letter with him.  In June 1993, the Bank’s name was changed from BCH to Banco Union.

28                  In late June or early July 1993, Ramundo Florez, Chairman of the Board of Banca Cremi, called Cabal to discuss the possibility of merging the two banks.  He asked him to gather together a group of shareholders in Banco Union who might be capable of purchasing a ninety per cent interest in Banca Cremi.  The object was to purchase the Cremi Finance Group, which included Banca Cremi. Because of the magnitude of the proposed acquisition which involved about $550 million, it would require the approval of the President and of the Finance Minister, Aspe.  In August 1993, Cabal and his connections presented a proposal to Miguel Monserra, the Director of the Bank of Mexico.  Cabal himself met again with President Salinas to discuss the transaction on 31 August 1993.  Approval was granted for the purchase of Banca Cremi and that purchase took place in November 1993.  Subsequently Cabal tried to obtain necessary approvals for the merger and float of the two banks.

29                  In 1993 there was a presidential election due in Mexico.  For nearly seventy years the country had been governed by one party, the Institutional Revolutionary Party (PRI).  It is only since 1997 that opposition parties have been represented in the Mexican Congress.  The position of president was one of considerable power, described by Professor Roett as “all powerful”.  The President was said to control all appointments to public office including the effective nomination of his successor.  The latter was a process called Dedazo. (T1828)

30                  The three leading candidates for PRI endorsement as its candidate to succeed President Salinas were Pedro Aspe, Luis Donaldo Colosio and Manuel Comacho.  Colosio was the Minister of Social Development.  He was responsible for programs which brought basic facilities to many Mexicans.  Cabal had been introduced to Colosio in 1992 by the Governor of Chiapes, Patroccinio Gonzalez.  Colosio was at that time implementing social programs in that State.  He told Cabal then and also in 1993, of his social policies.  These centred around encouraging self-sufficiency and wealth creation by providing education and training for people.  He also supported equitable development of the regions in Mexico and the creation of a true multi-party democracy.  He wanted to limit the power of the President.  All of these policies were attractive to Cabal. (T4269)  Cabal described Colosio in his evidence as “…a very pleasant person, a very simple person, a very humble person” and a popular candidate with the people of Mexico.  He was a person of both Spanish and indigenous blood and in that sense, according to Cabal, “a common Mexican”. 

31                  Towards the end of June 1993 Cabal was visited by Senator Carlos Salez Guteriez seeking a contribution to the PRI for the presidential election.  He says he agreed to arrange for contributions totalling $US15 million.  He told Guteriez that he was willing to do so in the belief that Colosio would be the endorsed candidate. He gave instructions to Collantes, the then Managing Director of Banco Union, that he should make an arrangement with PRI officials to open up a trust account in the bank and that he should endeavour to organise the shareholders and partners in the bank so that the necessary funds could be placed into that trust.  A trust deed was created for that purpose.  The donation was made on or about 26 July 1993. Cabal did not regard the amount as significant when compared with the standard contribution which was in excess of $US25 million.

32                  On 20 November 1993, Collantes resigned from the Bank.  He died about a month later.  On 30 November 1993 there was a meeting of a committee referred to in evidence as the Board of Administration of the Bank.  A minute of the meeting was translated in cross-examination by Alberto Zinser, Cabal’s principal Mexican lawyer who appeared as a witness in the s 19 proceedings.  At that meeting a proposal was put for the creation of a Management Committee that would be the administrative and executive organ responsible for the day to day operations of the Bank. (T2714)  It would also be in charge of the direction and administration of the Cremi Financial Group and Banca Cremi.  The proposed committee was to be subject to the direction of the Board of Administration of Banco Union.  It was to comprise the most senior officers of the Bank.  It would function as a high level Credit Approval Committee with power to approve credit to what was described as “the maximum legal limit” based on the net capital of the borrower.  In the case of corporations this was thirty per cent of their capital and in the case of individuals, ten per cent. (T2716)  There was apparently already in existence at this time a High Credit Committee of Banco Union.  Cabal, who was to be a member of the proposed committee, was to have a casting vote.  Other members of the committee included Mr Robert Bailey as President, Joaquin Alcala Herroz, Ricardo Armas Arroyo, Guillermo Barboso, Garza Alfredo Castaneda Breton and Ernesto Malda Maza. (T2719)    Robert Bailey was an American banker whose services had been engaged by Banco Union with a view to effectively managing the post-merger financial group.   Cabal explained that he wanted Bailey to take charge of the post-merger financial group but given the requirement the General Manager be a Mexican citizen, the Management Committee was formed under Bailey’s chairmanship with Alcala acting as the General Manager of the Bank.

33                   Colosio was endorsed as the official PRI presidential candidate on 8 December 1993.  Cabal says he was the first businessman to go and congratulate him.  He had agreed to support Colosio’s campaign. He provided him with a house where he could make appointments, conduct meetings and carry out his campaign.  He also gave him transport assistance and organised meetings of south-eastern businessmen.

34                  Colosio’s campaign co-ordinator was Ernesto Zedillo.  At a meeting with Zedillo at the beginning of 1994, Cabal offered additional support to Colosio’s campaign to the value of $US5 million. His assistance to Colosio extended to accompanying him on a tour to Tabasco at the end of February 1994 and on part of his tour in the north-east of the country.  In the course of their travels they had conversations about Colosio’s plans for Mexico.  As Cabal put it “…. he wanted Mexico to have a true democracy and he wanted to improve the standard of living of Mexicans in general”.  He was very worried about the concentration of the population in Mexico City and wanted to promote decentralisation of powers and redistribution.  On 23 March 1994, however, Colosio was assassinated.  As a consequence Salinas nominated another successor, in this case Ernesto Zedillo. 

35                  Following Zedillo’s endorsement as the new presidential candidate, Cabal met with Oscar Espinosa, Finance Secretary for the PRI, on 13 April 1994.  Espinosa asked him to make good his offer of $US5 million which he had previously mentioned to the campaign co-ordinator.  Cabal explained that the candidate had changed.  It was now Mr Zedillo.  Moreover the economic situation wasn’t so good.  He asked for a few days to see what he could do to organise the additional donation.  On 20 April 1994 in the course of a visit to Mexico by Cabal’s Japanese partners in Del Monte Fresh, he met with President Salinas in Loz Pinos.  Salinas asked him to support Zedillo.  He indicated that Cabal should provide financial support because it was mid campaign.         

36                  On 29 April 1994 a letter was sent by Jose Camargo Ascencio, Director General of Supervision of the National Banking Commission to Banco Union.  The letter was marked for the attention of Robert D Bailey as President of the Committee of Direction of the Bank.  The letter referred to certain irregularities and allowed the Bank five days to explain what it intended to do about them.  Cabal said that as far as he could remember Bailey had never said to him that he had received such a letter. (T4548) 

37                  At the beginning of May 1994, Cabal was phoned by Espinosa who asked him to make the $US5 million previously offered available, as money was needed to meet Zedillo’s campaign costs.  He asked that the contribution be in cash or by way of small deposits made into the trust because of electoral laws regulating campaign contributions. (T4400)  Cabal replied that the group of businessmen with whom he was associated had difficulty in providing further funds for the campaign and that he was somewhat disappointed with the state of affairs in Mexico.  In the event Cabal said he would get Alfredo Castaneda, an officer of Banco Union, to get in touch with Espinosa to see if something could be arranged.  His own attitude was that he was not keen to provide cash or to organise his associates to promote Zedillo’s campaign.  Nevertheless he spoke to Castaneda and told him to work out a solution in response to the pressure that was being applied by Espinosa for contributions.  He didn’t personally want to support Zedillo, he just wanted to find a way of avoiding problems.  He told Castaneda to meet with Espinosa or Espinosa’s people to work something out.

38                  On 12 May Cabal met with Espinosa and, faced with his insistence that Cabal contribute cash, he offered a personal contribution to the extent of the limit permitted by  recently introduced campaign contribution laws.  The maximum amount permitted was one million pesos which, at that time, was the equivalent of about $US300,000.  Cabal deposited the amount by way of a cheque into a trust account in Banca Cremi. (T4409)  The deposit was made on 26 May 1994.  A receipt for that deposit was issued and was received in evidence before the magistrate. (C44)  In the same month, Cabal received calls from one Mariano Palacios, a former State Governor, requesting further support for Zedillo’s campaign.  Cabal told him the Bank was already contributing to the campaign and was unable to give any more support. 

39                  At this time, June 1994, the merger of Banco Union and Banca Cremi had still not proceeded as necessary approvals had not been received.  Cabal blamed the delay on Ortiz and another official, Thomas Ruiz.  They constantly imposed requirements.  He said that when specified requirements were fulfilled, further requirements would be raised. 

40                  Cabal’s involvement with the Zedillo campaign was heightened when he was asked to accompany Zedillo on his tour to Tabasco on 12 June.  He travelled with Zedillo in a private plane together with some other people.  His relationship with Zedillo however was not close.

41                  On 21 July 1994, Cabal met with Espinosa and went through with him the file relating to the trust account in Banca Cremi.  Espinosa had asked for the documentation relating to the operations of the Bank with regard to the PRI trust so Cabal took along to the meeting the trust information together with some information on expenses.  The expenses related to promotional material in support of the Zedillo campaign, including the publication of a booklet and the production of key rings.

42                  A few days after his meeting with Espinosa, Cabal and the General Manager, Joaquin Acala, were asked to attend upon Ortiz.  The meeting took place on 26 July at the Finance Ministry.  The purpose of the meeting was to discuss the irregularities said to have been  discovered by the audit which had been carried out by the National Banking Commission.  At the meeting, according to Cabal, he and Acala were told that they should make all efforts to clear up where the irregularities had occurred but that they should maintain absolute secrecy about the administrative intervention by the Commission as the elections were very close and it was not desirable that it should be known in that environment that a bank was subject to intervention.  Mr Bailey was not to be made aware of the intervention.  Ortiz asked Cabal and Acala to sign a document of formal notification of the intervention.  Cabal raised the question of authorisation to have the Bank’s shares listed on the Stock Exchange but was told that while the irregularities were under investigation, the Bank shares would not be able to be listed.  On his account of it, he signed the notification of intervention as it was the only way that ultimately the float would be able to proceed.  Ortiz told them that they would have every opportunity to clear up any alleged irregularities.  He said he had no difficulty with that as the Ministry was aware of all the Bank’s operations in any event.

43                  The document signed by Cabal and Acala was in the following terms, as translated orally to Her Worship by Rudolfo Dela Guardia Garcia, a legal attache to the Mexican Embassy in Australia:

“1.       In meetings held in on the 8^th and 17^th of June 1994 the National Banking Commission made known to the officials of the aforementioned credit institutions various irregular operations which were detected in the process of supervision which is being undertaken by such organisation.  Likewise the observation was reiterated on loans granted for the purchase of shares of Banco Union SA and Grupo Financiero Cremi SA de CV without the fact that to that date such irregularities may have been sufficiently made clear or clarified nor resourced.

2.         Dated 21^st of July 1994 Messrs Lic Carlos Cabal-Peniche and public accountant Hoakim El Kala Heros verbally accepted before the Chairman or President of the National Banking Commission the existence of irregular operations at Banco Union SA which implied the financing, the excessive financing to various people in relation to the acquisition of companies. (T1162)

3.         In view of the above at an extraordinary meeting of the Board of Management of the National Banking Commission dated 24 July 1994 the aforementioned Board agreed on the administrative intervention of Banco Union and Banca Cremi, appointing for this purpose as intervenor Mr Public Accountant Jose Camargo Ascencio under the terms as provided for in Article 137 of the Credit Institutions Law as well as in Articles 40 to 42 of the Regulation of said Commission in matters to do with inspection, vigilance and accountability. (T1181)

4.         In these very same act delivery is made to Messrs LIC Carlos Cabal and public accountant Hoakim El Kala of the intervention audit files, file numbers 601-1-vJ-32777-94 and 60-1-vi-32778 dated 26 July 1994 to which Article 41 makes reference of the aforementioned regulation. (T1163)

5.         Mr LIC Carlos Cabal-Peniche and public accountant Hoakim El Kala Heros shall supply the National Banking Commission and the administration auditor with all such information regarding the irregular operations which may be of their knowledge with the purpose of evaluating the impact on the financial situation of Banco Union SA and Banca Cremi SA. (T1162-63)

6.         Likewise the aforementioned banking officials shall submit presently to the consideration of the National Banking Commission the form and terms in which any irregular operation is sought to be normalised. (T1163)

7.         The officials of the aforementioned Credit Institution shall at all times collaborate with the appointed auditor, appointed by the National Banking Commission without prejudice to other sanctions that may result applicable, the failure to co-operate or the lack of accuracy in the information supplied to the auditor or to the Commission shall result in the intervention with the status of management of the very same institutions on the terms of Article 138 of the Credit Institutions Law.”

44                  It is submitted for the applicants that Cabal, by being told to sign this document, was being directed to sign a document falsely acknowledging the occurrence of irregularities.  If it were, from his point of view, a false acknowledgment that was his own doing.  It does not import any want of bona fides on the part of the National Banking Commission.  I find it unlikely that Cabal did not appreciate the potential seriousness of the allegations to which he was, in broad terms, assenting.  He was, by virtue of paragraph 2 of the document accepting “…the existence of irregular operations at Banco Union SA which implied the financing, the excessive financing to various people in relation to the acquisition of companies”.

45                  The day after he signed the irregularities document presented to him by the National Banking Commission, Cabal obtained a visa from the French Consul General. (T1162)  On 30 July his father died.  Subsequently he and his family left Mexico and travelled to the United States where they spent a few days.  From there they went on to Europe. Cabal’s stated purpose for going to Europe was to negotiate a personal line of credit in Switzerland.  The line of credit he negotiated was about $110 million.  Its objective was to enable him to acquire Del Monte Foods, a canning operation, and merge it with Del Monte Fresh.  He regarded the acquisition of Del Monte Foods as a matter of considerable significance.  The overall price of the acquisition was about $US1 billion.  The acquisition brought with it an important distribution network in the United States.  The company had a very high consumption of tomatoes and Mexico is a very important producer of tomatoes.

46                  While Cabal was in Europe the Mexican presidential elections took place on 21 August 1994.  Zedillo was elected as President. (T1367)  On or about 24 August 1994 Aspe’s secretary, Jorge Trrasso, telephoned Cabal from Mexico saying that he should come back to Mexico to have a conversation with Aspe.  As a result of this Cabal made an appointment to see Aspe on 31 August in Mexico City.

47                  Immediately after the election of the President, on 29 August 1994, Banco Union and Banca Cremi published newspaper advertisements congratulating President Zedillo upon his election.  Although Mexico’s chronology suggested that Cabal had ordered the publication of these congratulations, neither the notices of congratulations nor the evidence about them from Zinser bore out that he was personally responsible.

48                 Under the Criminal Law of Mexico there are two classes of offences: those which may be investigated by the Attorney-General by virtue of his or her office; and offences which are de querella, which can only be the subject of criminal investigation upon the filing of a complaint by a person legally entitled to make the complaint.  In respect of tax offences or tax-related offences, the Ministry of Finance may file a querella.  For banking offences, either the bank itself or the Ministry can formulate the complaint but the complaint must be made on the basis of a confirming technical opinion from the National Banking Commission. (T 2253-2256) It is contended for the applicants that what constituted a formal complaint from the Ministry of Finance was issued on 29 August and delivered to the Federal Public Prosecutor at the Attorney-General’s office on 30 August.  The prosecutor applied on 31 August to a judge, the Seventh District Judge for the Federal District in Criminal Matters, Ricardo Ojeda Bohorquez, who issued a warrant or order of apprehension on the same day.  The order so issued related to Cabal and nine other persons.  The alleged offences were against articles 112, 113 and 114 of the Law of Credit Institutions.  The factual recital grounding the issue of the warrant comprised about 142 pages.

49                  On the same day, 31 August, Cabal who had returned to Mexico, met with Doctor Aspe.  Also present was Ortiz, Fernandez and Mr Thomas Ruiz.  Dr Aspe told Cabal he was very annoyed about the irregularities which had been found in connection with the Bank and that Cabal should follow instructions from Fernandez in order to clear them up.  Cabal replied that he was unaware of the irregularities and so far as he was concerned the Bank was operating normally.  Aspe said if he wanted to demonstrate that, he should follow Fernandez’ instructions.  There was some discussion about the float, Cabal making the point that he still hadn’t received authorisation to float the shares on the Stock Exchange.  Aspe said he should not proceed at that time.   The irregularities should be cleared up and Fernandez’ instructions followed.  Cabal referred to his negotiations in Europe in order to obtain finance and the line of credit which he had arranged.  However Aspe was not interested in talking about that. 

50                  On the following day Cabal met with Fernandez.  He asked why the Bank was being singled out with respect to the alleged irregularities.  He told Fernandez that it was operating the same way as all other banks in Mexico and that so far as he was aware the Commission was fully informed of all the operations that were being undertaken in the Bank and that those operations were not irregular. Fernandez said he was not the person to decide on Cabal’s case.  Decisions would be taken at a presidential level.  It was an extremely big case for Mexico because of all the companies that Cabal was managing and that were involved.  He had nothing personal against Cabal and was only following instructions.  He had set out a list of questions which needed answering and had given them to Lel Kala.  He told Cabal he should be ready to be called to a further appointment.  Cabal said he would have to return to Europe to be with his family and that Fernandez should give him adequate notice. He said that he would place fully at Fernandez’ disposal any information he wanted about the Bank.   On the same day that he met with Fernandez, Cabal also consulted a lawyer, Juan Velazquez, whom he described as “…an important criminal lawyer”. (T4537)

51                  While Cabal was meeting with Fernandez and his lawyer, officers of the National Banking Commission were appearing before the Federal Public Prosecutor. An application for a second order of apprehension or warrant was made to the Seventh District Judge on 2 September and issued on the same day.  It was not communicated to the Federal Prosecutor until 5 September at 3.15pm.  The recital of facts backing the warrant runs to 46 pages.  The order required the apprehension of Cabal, Gabriele Roblesy Gonzalez Del Cossio, Francisco Macias Zamora and Alejandro Garza Vasconcelos  “as subjects with probable responsibility for committing the felonies foreseen and sanctioned by articles 112, fraction V, clause d), and 114 fraction 1, of the Law of Credit Institutions”.

52                  Cabal departed from Mexico on 1 or 2 September 1994.  He travelled first to the offices of Del Monte in Miami where he spent a few hours and then travelled to Europe to join his family.  He has not been back to Mexico since that time. 

53                  On 31 August Pasini had also departed Mexico for Europe, specifically Monaco where he joined his sister, Teresa Cabal.  The reason he gave in his evidence was that he had been invited to see his sister on holidays and also because he had been offered, some time previously, a job with Del Monte.  No particular time had been mentioned, just a period of training and the offer of a position if he turned out to be suitable.  In the event he did not take up any such position.  In context, the account given of his reasons for leaving Mexico at the time seem inherently improbable.

54                  A letter dated 1 September 1994 from the National Banking Commission to Banco Union, signed by Fernandez, announced the Commission’s intervention in the affairs of the Bank.  It appears from the concluding paragraphs of the letter, which is in Spanish, that this intervention was made pursuant to a resolution of the Commission on 28 August.  The second last paragraph appears to identify the object of the intervention as normalisation of irregular operations and the establishment of an administration which would observe sound financial practices.  Cabal did not become aware of this intervention until 5 September when he saw it on CNN television news in Europe.  The substance of the report as Cabal described it in his evidence to Her Worship was that the Bank had been the subject of intervention through the agency of Aspe and Ortiz, that approximately forty officers of the Bank had been detained and that he, Cabal, was an absconder from justice.  He immediately rang his lawyers in Mexico so that they could analyse the situation and take charge of the case.  On the same day, Mr Zinser was given Mr Cabal’s power of attorney by two of his legal representatives in Mexico, a process which, according to Zinser, is available under Mexican civil law. (T2509)  The document was not actually delivered to Zinser until the following day, 6 September. (T2523 X190)

55                  Not surprisingly there was wide spread publicity in Mexico surrounding these events and Cabal’s departure from the jurisdiction.  There was an attempt before Her Worship to cross-examine Zinser on newspaper reports of statements said to have been made on Cabal’s behalf by the lawyer, Velazquez, to the effect that Cabal would respond to each of the charges against him.  Counsel for Mexico sought to rely upon this evidence to establish that it was widely believed in Mexico that Cabal was out of the country.  Evidently this would either explain or rebut arguments that might be made about the exhaustiveness of the police inquiries about the whereabouts of Cabal in Mexico. (T2687)  Her Worship quite properly in my opinion, refused to allow cross-examination along these lines to continue.  The newspaper reports were simply marked for identification. (T2684-2688)  In the meantime, acting on his lawyers’ advice,  Cabal made no statements and stayed out of the jurisdiction.  His lawyers were in contact with Aspe and treasurer officials.  Cabal himself did not have continued communication with bank officers.  Everything, he said, “… was in a very confused state”. (T4443)

56                  While in Monaco, Pasini also heard the news that “the government had taken [Cabal’s] banks”.  He decided to stay there because as he put it:

“…my sister needed support at that time and I made the decision that the right thing was for me to stay with her at that time.” (T4650)

 

Towards the end of September or early in October 1994, Pasini went to France with his sister and stayed with her and her family in a town called Dreux near Paris. 

57                  On 14 September a third warrant or order of apprehension was issued by Carlos Arellano Hobelsberger,  Judge for the Eighth District in criminal matters in the Federal District.  The warrant was issued against Cabal, Hector Gomez Lopez and Eduardo Hernandez Torres “…for their probable criminal responsibility in the commission of the crimes contemplated and penalised by article 112, fraction V, 112, fraction V paragraph e), and the same number in its fraction VI of the Law of Credit Institutions”.  In this case it appears a complaint was made to the Federal Prosecutor’s office on 7 September 1994, application for the issue of the warrant made on 8 September and the warrant issued on 14 September 1994.  On 9 October a fourth warrant was issued by the Tenth District Judge.  The initial complaint to the office of the Federal Prosecutor was made on 30 September 1994 and the application for the issue of the warrant on 4 October 1994.  The warrant was for the arrest of Cabal and Alfredo Castaneda Bretton for breaches of article 112, section V, first paragraph and article 112, section V, clauses c), d) and e) of the Credit Institutions Law.  The issuing judge was Olga Estrever Escamilla. 

58                  On 5 November 1994, Cabal arranged for the publication of an open letter in the Mexican press.  His objective, according to his evidence before Her Worship, was “… to make known to the public opinion in general and to the Bank shareholders with regard to what my situation was at that time in relation to the government of Mexico.”  He also asserted that the letter referred to his political beliefs.  A translated version was admitted in evidence before Her Worship without objection (C47).  The letter was published in a newspaper called “Financiero”. (T4446-4447)  In the letter Cabal asserted that an attempt had been made to arrest him on 5 September when police entered his offices at Banco Union.  He referred to the appearance on television that night of Ortiz reporting that the Ministry of Finance had carried out “.. a managerial intervention on behalf of the National Banking Commission, of all the intermediaries that make up the financial group Cremi-Union…”.  He referred also to Ortiz’ announcement that “based on the petitions of the financial authority, the Office of the Attorney General of the Republic filed the criminal proceedings, and the legal authority issued the corresponding orders of arrest against Mr Carlos Cabal Peniche…and others”. Ortiz, he said, later gave “an extensive but vague explanation to support his hasty measures, which amounted only to defamatory assumptions and fantasies without any basis whatsoever, with the sole purpose of provoking and fostering scandal”.  He described the procedures set in motion as “…the machinery of injustice”.  He said:

“Up to now I have been silent while I waited for better circumstances in which to defend myself.  Those who attack me do so without reason, and their actions have nothing to do with compliance with the law and are, instead, arbitrary actions born from resentment.  I am not driven by any negative feelings, but by my wish for the truth to be known, and for lawfulness to prevail over the powerful personal interests that, feeling affronted, have led to my persecution.”

He said he had fled from injustice.  He claimed that the justice system did not always act with the independence that was essential to “fully trust in it”.  He denied that he had committed any of the “absurd crimes” of which he was accused.  The relevant authorities had always been informed regularly and with full details of his every move and activity in the banking institution.  He went on to say:

“Clearly identified interests, seeking tax concessions, have fostered the confusion, and have taken advantage of it in order to try to implicate several of my friends, for purposes of party politics.  Others have reached the height of absurdity in trying to link me to drug dealing and money laundering.  Some have discovered the right occasion to become, without any real grounds, severe critics.”

He referred to his family background, his love of his country and of his region.  He had always been a firm believer in the greatness of Mexico, had constantly wanted to do something important for the country and had been willing to take risks.  Speaking of his banking group he said:

“In the struggle to consolidate and expand that institution, I thought that it was my duty that small and medium-size entrepreneurs of the South Eastern Region should have the chance to take part in the intensive development of that region, so that it could attain progress comparable to that of other regions in the country.”

He said it was in the Maya States that unemployment had reached “unimaginable levels”.  He did not want them to be left behind in Mexico’s progress.  It was the same desire which led him to purchase Del Monte Fresh.  He asserted that his competitors were the main beneficiaries of the injustice caused against him.  He said:

“I have also been informed that the same powerful interests, with specious arguments and unlawful measures, intend to take this company away from me.  I shall do, backed by the law, all that is necessary to prevent this from happening without retribution.

By acting independently I have earned the enmity and rancour of the representatives of the most exclusive and conservative sectors of the country, who arrogantly watched us and considered our South Eastern Region Group as a collection of incompetent, uneducated provincial men.

Therefore, it is understandable that we, the newcomers, have been the ones chosen to give a show of pretended legal and moral exemplariness.  This is essentially unfair, because it is evident that there are many loopholes in the legislation regulating the matter, there is an abundance of vacuums, anachronisms and ambiguous interpretations, which permits and even fosters their arbitrary enforcement.  This is an area that deserves an in-depth analysis.”

He said that he did not intend to surrender control of either Grupo Financiero Union or Del Monte Fresh.  He knew there was a path full of obstacles in front of him.  He said he would act with determination for so long as it was necessary.  By way of addendum to the translation of the letter Cabal indicated that the reference to “interests, seeking tax concessions” is a familiar Mexican expression meaning “people who have sold themselves to the government”. 

59                  On 1 December 1994 Zedillo assumed office as President of Mexico.  He appointed as Attorney General, Antonio Lozano Gracia, a member of the opposition National Action Party (PAN).  Lozano in turn appointed officials who were not members of the PRI.  Professor Roett, to whom this was put in cross-examination, was dismissive of it saying:

“It has now become symbolic to appoint a non-PRI person to the position of Attorney General, to convince us that the rule of law exists in Mexico when it does not.” (T2060)

 

In December 1994 the Mexican economy experienced difficulty evidently known as “the December mistake”. On 20 December the Finance Minister, Jaime Serra Puehe, announced a sudden devaluation of the peso.  The impact of that decision led to his resignation and replacement by Ortiz who had initially been appointed as the Secretary of Communications and Transport by Zedillo. (X 187). A number of banks which had been privatised under President Salinas had problems and were the subject of interventions. (T4448)

60                  On 31 December 1994 regulations were promulgated in the Official Gazette by the President at the request of Congress which apparently contained transitional provisions to ensure continuity of the institutions of government, including the administration of the Supreme Court and the Council of the Federal Judiciary. (T3636 X-246)

61                  In January 1995 the Chase Manhattan Bank published a newsletter on the financial crisis in Mexico, the author of which was Professor Roett.  In that newsletter Roett referred to three areas in which the monetary crisis could undermine political stability in Mexico:

1.         The year old Zapatista insurgency in the State of Chiapas associated with demands for the resignation of the incumbent PRI governor on the grounds that his election was procured by electoral fraud. 

2.         Imminent state elections.

3.         The role of labour unions, their relationship to government and the PRI.

The newsletter concluded that the Mexican monetary crisis had overshadowed the commitment of the Zedillo administration to political reforms including negotiations to resolve the Chiapas crisis and the guarantee of fair elections at State and municipal levels.  It also raised the question whether or not Mexican workers would accept a prolonged period of wages losses and diminished high standards.  It observed that to the degree the Zedillo government was unable to stabilise the peso and avoid inflation it ran the risk of social and political uncertainty.  Chase Manhattan Bank however subsequently published a memorandum stating that the newsletter did not reflect its views.

62                  On 31 January 1995, a fifth warrant issued by the Eighth District Judge.  It was directed against Cabal and Castaneda and asserted contraventions of article 112, fraction V, first paragraph and 112, fraction V clause c), d), and e) of the Law of Credit Institutions. The warrant and backing facts occupy some seventeen pages.  It does not appear from the recital when the complaint was first made to the Federal Public Prosecutor’s office or when the application for the issue of the warrant was made to the judge. A sixth warrant was issued on 7 September 1995 by the Seventh District Judge against Cabal, Castaneda, Ernesto Malda Maza, Ricardo Armas Arroyo and Rafael Antonio Ramirez Galn alleging contraventions of article 112, section V, first and second paragraphs, clauses c) and e), of the Credit Institutions Law.  In this case it appears that there was a complaint on 22 May 1995 and that the request for the issue of the warrant was dated 31 July 1995, received by the Court on 2 August 1995.  A seventh warrant issued on 24 October 1995, again by the Seventh District Judge.  It appears that the initial presentation of a complaint to the Federal Public Prosecutor was on 3 October 1995 and the application for the warrant on 24 October 1995.  The warrant was directed against Cabal, Castaneda, Malda and Armas and again asserted contraventions of article 112, section V, paragraphs c) and e), of the Credit Institutions Law.

63                  In January or February 1995 Pasini learned that one of his businesses which he owned in partnership with Manuel Hurtato had been closed without any prior warning to him.  About six months later, another of his businesses closed.  Also at about that time he had to renew his visa to remain in France.  He did that and in July 1995 moved with his sister to Spain.  From time to time he travelled back from Spain to France.  He claimed that while in Spain he and his sister and her family were consistently followed. (T4652)

64                  In September 1995, Pasini was introduced, in Madrid, to a person calling himself Domingo Murguia, whom he later discovered in fact to be Juan Miguel Ponce Edmondson, an officer of Mexican Interpol. (T4653)  Pasini met Ponce at a hotel in Madrid in company with his sister, Teresa Cabal, and a Spanish lawyer Pedro Gonzales Trevijano.  Ponce told Pasini and his sister that they had no chance of fighting the government.  It was like David and Goliath.  The only way forward was to negotiate with him.  They could not trust their Mexican lawyers who were only interested in making money.  He told them that they had to understand “…that the problem Carlos [Cabal] had at that stage was only a political problem and could only be resolved in a political way”.  The people who were after Cabal wanted “to present him to the public in a photo behind bars and with the striped prison suit on”.  Cabal should give himself up on 15 September.  If he did not, there would be serious consequences for the people who were close to him and who were helping him.  Ponce said that the people following Cabal already had the striped jacket measured up for him and that it was up to the Pasinis whether it was to be luxury model or just a standard model.  Ponce said warrants could be issued for the arrest of Pasini, his sister Teresa, and his brother Pedro.  He told Pasini he was in a very delicate situation for sticking his bib in where it wasn’t his business.  He ended by saying to Pasini:

“I hope your faith can save you because that’s the only thing that will be capable of saving you.” (T4656)

 

 

65                  A further meeting was arranged with Ponce at the same hotel.  In the course of that further meeting he asked which politician Cabal had offended and what he had done to receive such a punishment.  Pasini put it to Ponce that if he had important contacts he should know which politician it was.  Ponce didn’t want to say who, he didn’t want to reply, he kept saying that the Pasinis should state their theory as to who the offended politician was.  The meeting concluded with Ponce warning the Pasinis that their time had started to tick over and that they should make a quick decision because time was hanging over them.

66                  In October 1995, when Pasini was at his apartment in Druex in France, two French policemen and a Mexican police officer, Juan Carlos Lopez, entered and demanded to search his apartment and his car.  Lopez told Pasini the reason for the search was that he was a member of Cabal’s family and was helping Cabal.  The police carried out the searches then took him to a police station in Versi where they kept him for two and a half days.  He claimed that Lopez threatened him, saying that he was  going to make sure that Pasini would go to jail in Mexico and he wouldn’t survive more than two days as he, Lopez, would place Pasini with his friends in the prison.  On 24 October 1995, Pasini was interviewed by French authorities and made a statement to them in Spanish which was tendered untranslated (X171).  He told French authorities he was President and General Director of a company called Xurtu.  The purpose of the company was the sale and lease of property.  The lawyer Pedro Gonzales had asked him to occupy the position of President and General Director.  He had accepted that appointment because the lawyer told him that role would not cause him any problems.  An office was leased in Madrid for carrying out the various operations of the company.   After his release by the French police, Pasini went to Madrid.  While there he was telephoned at a hotel by the same Mexican officer who asked where Cabal was.  Pasini said he did not know.  The officer told him that he was in serious trouble for saying that and for not co-operating and that the officer was going to be very happy to do damage to him personally. (T4660)  A short time later he was joined by his girlfriend, who is now his wife.  In view of the risks of remaining where he was he decided it would be best for Mrs Cabal and himself if they separated.  Pasini then travelled to Argentina where his girlfriend joined him in November 1995.  They were married there in December 1995.

67                  The evidence of a Federal Agent, Robert Grant, of documents obtained from Pasini in Melbourne in November 1998 (T4775-4777) and the documents themselves, having regard to Pasini’s refusal to answer questions about them in cross-examination (T4684-4685) establish that in 1996 he obtained a false passport from the Dominican Republic in the name of Gregorio Montero (X-271).  He also obtained an extract of a birth certificate from the Dominican Republic in 1997 (X-272) under the name Montero and an identity card in the same name from the Republic of Uruguay (X-273).  In addition, he was in possession of an identity card from that country in the name of Aracelis Del Carmen Pichardo Diaz (X-273). 

68                  Like Pasini, Cabal was cross-examined about documents found at his premises in Melbourne in November 1998, being three passports from the Dominican Republic, an Australian Driver’s Licence, a driver’s licence from the Dominican Republic and an identity card from Uruguay (X 263, 264, 265, 267).  He declined to answer the questions put to him in relation to those documents on the basis that the answers could “tend to expose me to procedures or penalties” (T4621-4623).  The evidence of Federal Agents Macauley and Grant however, established that the documents had been located at Cabal’s residence at Glyndon Avenue, Brighton on 11 November 1998.  Two of the three passports from the Dominican Republic purported to have been issued in 1996.  The third appeared to bear an issue date of 17 September 1998.  All were issued to Rafael Certi Merrit.  The Dominican Republic driver’s licence (X-265) and the Uruguayan identity card (X-267) were also in the name of Rafael Certi. These were false documents obtained by Cabal for his own use.

69                  The first of two warrants against Pasini was issued on 18 January 1996.  It was issued by Gilberto Chavez Priego, a Justice of the Third Unitary Court for the First Circuit.  It was issued following a review of a decision by the Seventh District Criminal Court for the Federal District denying issue of a warrant. The warrant as issued by the Unitary Court alleged contravention of article 112, section V, clauses c) and e) of the Credit Institutions Law.  The original complaint was made on 3 October 1995 and an application for order of apprehension made on 24 October 1995. On 29 August 1996 a second warrant was issued against Pasini.  The Eighth District Judge had initially denied the warrant which had been sought by Federal Prosecutors in November 1995.  That denial was appealed to the Third Unitary Circuit Court.  On appeal the Court denied issue of the warrant against four of the persons named, but authorised issue against Pasini and another.

70                  On 12 August 1996, an eighth warrant was issued against Cabal by the Sixth District Judge.  The original complaint appears to have been made on 20 May 1996, apparently from within the office of the Federal Public Prosecutor.

71                  As appears from the Dominican Republic Passport (X-236B) and documentation later submitted to the Department of Immigration and Multicultural Affairs, Cabal obtained the grant of an Australian Visitor’s Visa under the name Rafael Certi Merrit.  The visa was obtained in Buenos Aires, Argentina on 30 September 1996.  His occupation was described on the application as Vice President of Intercontinental Trading SA.  His nationality was described as Dominican and his residence as the Dominican Republic and Italy.  He was accompanied to Australia by his wife, who travelled under the name Matalia Righi De Certi and his four children who also travelled under the surname Certi.  All travelled on passports issued by the Dominican Republic.  They arrived in Sydney on 11 October 1996.  Their visas authorised them to remain in Australia until 11 January 1997.

72                  In Australia, Robert Henry, a registered migration agent, applied on 1 November 1996 for a Business Temporary Visa 457 for Cabal under the name Rafael Merrit.  Mr Henry made the application on behalf of Intercontinental Trading SA of the Dominican Republic as Certi’s sponsor for a temporary business visa sub class 457 for a period of two years to enable him to establish a branch of Intercontinental in Australia.  In the application it was noted that Mr Certi would be leaving Australia within a few days of the application.  His intention was to obtain their subclass 457 visas on return in January 1997.  The application was elaborate.  It asserted that Mr Certi held a Bachelor of Economics degree awarded in 1975,  had over twenty years relevant experience in the food industry and had been employed with the Intercontinental group since 1992 when he had been appointed its Vice President and Chief Executive Officer.  He was said to be Chief Executive Officer of the company’s subsidiary in Italy, recently based in that country, and responsible for establishing the company there.  The application asserted that Intercontinental was of the opinion that Mr Certi was the only suitably experienced and qualified person to establish a successful subsidiary in Australia.  Family members were included in the application.  The application enclosed passports, application forms, a resume, a letter of support from the President of Intercontinental Trading SA, an Intercontinental Trading SA Organisation Chart, a Certificate of Registration for the Australian firm, notification of allotment of shares in Australia and notification of change of office holders in Australia.  It also contained a budget forecast for Intercontinental Trading SA for the period 1 November 1996 to 30 June 1997 and a letter from the National Australia Bank of 30 October 1996 confirming the opening of an account.  The application was an elaborate and, no doubt, expensive fraud.  It was rightly tendered before the magistrate as going to Cabal’s credibility.  The application was approved and notification of the approval given on 25 March 1997. 

73                  In April 1997, Pasini under the false name, Montero, made application for a temporary business entry visa, falsely asserting that the Dominican Republic was his country of birth and nationality.  The application was accompanied by a letter from a company called Superb Foods Pty Ltd over the signature of one Ben Riccio acknowledging that Mr Montero intended visiting their company in order to conclude negotiations regarding the export of wine to Australia.  Riccio had been shown in the documents supporting Cabal’s application as a director and secretary of Intercontinental Trading Pty Ltd, appointed to that office on 18 October 1996.  The grant of the visa was approved and Pasini and his wife subsequently travelled to Australia. 

74                  Further warrants, the ninth, tenth and eleventh, were issued against Cabal on 25 November and 9 and 10 December 1997.  They were issued by the Seventh, Eighth and Sixth Federal District Judges respectively.  A twelfth warrant was issued on 13 April 1998 by the Twelfth Federal District Judge and the thirteenth warrant on 15 May 1998 by the Forty First Federal District Judge.  The thirteenth warrant issued against Cabal and its predecessors to that point represented the totality of the warrants supporting what became known as the first extradition request.

75                  On 11 November 1998, Cabal was arrested by Australian Federal Police.  They drove him to a carpark near Luna Park at St Kilda where another vehicle with three Mexicans was waiting.  One of them was Juan Miguel Ponce Edmondson.  The other two were introduced by him as a General and a member of Interpol respectively.  While the Australian police withdrew a few metres, Ponce told Cabal that they had been pursuing him for a long time.  He said that he knew Cabal’s problem was a political one.  If Cabal were willing to return voluntarily to Mexico his family would be able to remain in Australia.  Cabal said he would need to discuss that with his wife.  However they could not raise her by mobile phone and at this point the Australian Federal Police officer, Whitehead, said to Cabal that if he did not go to see his wife he would have to be taken either to a police station or the Magistrates’ Court.  The General took a photograph of him which, according to Cabal, was later published in Mexican and Australian newspapers.  In the event, Cabal not agreeing to a voluntary return to Mexico, he was taken into custody and brought before a Magistrates’ Court.  The authority for his arrest was a provisional warrant  which had issued on 10 November 1998 under s 12 of the  Extradition Act 1988 on the application of Mexico.  On the same day, Pasini’s car was intercepted near Cabal’s Brighton home by Australian Federal Police.  Ponce was there and said to him in Spanish “so you’re Marco Pasini.  Well I’ve really fucked you now and that’s how you’re going to finish up”.  Later Ponce told Pasini, at Cabal’s Brighton house, that Cabal had already voluntarily accepted extradition, that he (Ponce) was going to take charge of fixing up immigration matters and that his family wasn’t going to have any problems remaining in Australia.  However in order for that to occur Pasini had to find Teresa Cabal and speak with her.   Initially it appears Pasini was taken into custody under provisions of the Migration Act 1958 (Cth).  However a provisional warrant for his arrest issued on 27 November 1998 under s 12 of the Extradition Act.   Both Cabal and Pasini have remained in custody at Port Phillip Prison since their respective arrests in November 1998.

76                  On 6 January 1999, Mexico delivered a request to Australia for the extradition of Cabal relying upon thirteen of the warrants referred to above.  On the following day the Acting Attorney-General, Senator Vanstone, signed a notice under s 16(1) of the Extradition Act directed to the magistrate before whom Cabal was brought stating that the request had been received from Mexico.  The notice recited the Minister’s opinion that Cabal was an extraditable person for the purposes of the Act in relation to Mexico and that if his conduct had taken place in Australia at the time of the extradition requests, it would have constituted extradition offences in relation to Australia.  The Minister further recited that she was not of the opinion that there was an extradition objection.  A diplomatic note received by Australia on 20 January 1999 from Mexico requested the extradition of Pasini, relying on the two arrest warrants that had been issued against him in Mexico.  The Minister issued a s 16 notice on 21 January 1999 which contained recitals in terms similar to those set out in the first notice relating to Cabal.

77                  A second diplomatic note relating to Cabal and requesting his extradition was received by Australia on 11 February 1999.  This relied upon three warrants already mentioned in that connection and a fourth warrant which was issued by the Second District Judge on 7 January 1999.  The issue by the Minister of the s 16 notices was the subject of three applications for judicial review by Cabal and Pasini.  The applications were heard by Kenny J and dismissed on 27 March 2000 – Bertran v Vanstone (2000) 173 ALR 63.

78                  On 24 February 1999, prior to the issue of the second s 16 notice in relation to Cabal, his then solicitors, Pryles & Defteros, wrote to the Attorney-General putting submissions against the issue of the notice.  Under the heading “Extradition Objections” it was contended that there was “…compelling material to demonstrate that the surrender of Carlos Cabal is being sought for the purpose of prosecuting him and punishing him on account of his political opinions and that if surrendered to Mexico his trial may be prejudiced and he may be punished and detained by reason of his political opinions”.  Without limiting the material to be relied upon some of the particulars of that objection were said to include the following:

1.         Carlos Cabal was closely aligned and identified with the presidential candidate, Louis Donaldo Colosio, who was assassinated in 1994.

2.         Cabal’s political and economic objectives, which formed a major part of the presidential campaign of Colosio, included the development and restructuring of the south-east of Mexico.  This is an area which is poor and under-developed.  These objectives were unpopular and disliked by key members of the Mexican government, in particular Ministers and officials within the Ministry of Finance.

3.         Cabal and two other bankers have been singled out and deliberately chosen by the government of Mexico as scapegoats for the governments mismanagement of both the banking industry and the economy between 1992 and 1995.  In particular there has been a decision to selectively prosecute Cabal and those closely associated with him, whilst deliberately choosing not to prosecute others.

4.         The decision to prosecute Carlos Cabal was made with no regard to substantive and procedural principles.  This disregard for the due process combined with factors, some of which are referred to above, demonstrate that the prosecution of Carlos Cabal was instituted and is now being conducted, not by an independent and unbiased executive authority (by reason of his activities within Banco Union), but on account of his political opinions and standing.

5.         The political pressure has as a consequence led to improper and unlawful pressure being applied to the Criminal Justice system.  In Mexico criminal trials are conducted before a judge alone.  Some of the lawyers acting on behalf of Cabal’s co-accused have been persecuted and harassed.

6.         Any sentence that will be imposed upon Cabal will be excessive and his detention will most probably be served in jails reserved for the most violent offenders.  The conditions in these prisons are in contravention of principles set out [in] international treaties to which Australia is a signatory.” 

79                  This would appear to have been the first formulation in a formal way of the extradition objection related to alleged political opinions.  Formal particulars of extradition objections were delivered by Cabal and Pasini’s lawyers on 27 May 1999.  They set out in a somewhat more elaborate form the objections mentioned in the letter from Pryles & Defteros.

80                  On 23 March 1999, Cabal released a media statement which he also placed on the website which he had established.  In that statement he said he had always refused to accept what he described as “…the unfair and undeserved victimisation” of himself by the Mexican government whose only purpose he said was “to distract the Mexican people from the disastrous failures of economic policies implemented by the financial authorities”.  He referred to the near collapse of the Mexican banking system following devaluation and asserted that the government had singled out some bankers and businessmen to blame for that financial disaster.  He said:

“They targeted me not because of my actions, but because of my political views.”

He said:

“I am being persecuted because of the threat that is believed I represent to the system.  I am not aligned to any political group, but I supported the former presidential candidate Louis Donaldo Colosio because I agreed with his social policies to develop the whole of Mexico.

Colosio was assassinated a few months before the presidential election which he most certainly would have won and I believe Mexico would have had a very different and favourable reality.

This murder, as well as a rebel uprising in the Mexican south, created great instability in Mexico and a new power struggle at a time when the economic crisis was beginning.

I was not as enthusiastic about Zedillo’s policies as I was about Colosio’s.  This and the fact that I did not support Zedillo as much as I did with Colosio has cost me dearly.”

He asserted that the charges against him seemed to relate to a series of transactions involving “…the bank’s preparations to buy another bank, which would have then meant that it would have been the fourth largest bank in Mexico”.  He asserted there was no missing money and that the proceeds of loans in issue were in institutions which the government seized.  Allegations about tax evasion and money laundering had been prepared once he was arrested in Australia.  They, he said, were a fabrication and could quickly be proved wrong.  He described the proceedings against him as “political persecution” and said Australia was the only chance to fight that persecution “masked as a legitimate act of the Mexican government”.  He said:

“I am certain that I am persecuted by reason of my political opinions.  I am confident, given the appropriate opportunity, that I can prove this as a valid opposition to Mexico’s request for my extradition.  More importantly, I strongly believe, again given the right opportunity, that my innocence will prevail.”

81                  In the Miami Herald of 29 May 1999, Andres Oppenheimer, published an article said to be based on an interview with Cabal under the headline “Banker tells of huge PRI donations”.  The opening paragraph of the article was in the following terms:

“Offering a rare glimpse into the back rooms of Mexico’s traditionally secretive ruling elite, a fugitive Mexican banker disclosed to The Herald this week that he contributed $25 million to the government party in 1994, including $5 million for President Ernesto Zedillo’s campaign. 

Carlos Cabal Peniche who is in an Australian prison fighting an extradition request from the Mexican government, said in a letter to The Herald that “donations of this kind were normal in Mexico…It was part of the system between businessmen and politicians.  Everyone had to do it.”

Cabal’s statement was said by the reporter to mark an unusual description of the nature and scope of relations between big business and the PRI. The article went on to quote statements by Cabal about his contributions to Colosio’s campaign and subsequently the $5 million donation to Zedillo and another to the campaign of Tabasco Governor, Roberto Madrazo.  The article said:

“Cabal Peniche, who faces a July 19 extradition hearing in Australia, said in a March telephone interview that he is a victim of political persecution by Zedillo, because he was “not as enthusiastic about Zedillo’s policies as I was about Colosio’s.”

The article also quoted a government spokesman as rejecting any claims of financial improprieties or political retribution.  The writer, Oppenheimer, is a friend of Professor Roett (T2064 X-184). A further article in the newspaper, Reforma, of 7 July 1999, carried a lead story about Cabal on the front page.  It attributed to him statements that the extradition treaty between Australia and Mexico was being abused and abrogated by an authoritarian state.  The process was characterised by Cabal, according to that article, as a “quick political fix before the presidential elections”.

82                  On 15 July 1999, a newspaper advertisement was published by the PRI responding to statements attributed to Cabal in the media in the preceding few days.  A translation of the advertisement was tendered and ultimately received in evidence (C55 at T4870).  The advertisement asserted that in September 1994 the Government of Mexico was obliged to assume control of Banco Union of which Cabal was Chairman and a majority shareholder.  The intervention was said to have been made necessary by financial losses which the bank had suffered largely as a result of illegal operations carried out by Cabal himself.  As a result of the efforts of the current government, it was said, seventeen criminal proceedings had been brought against Cabal giving rise to seventeen arrest warrants.  The Federal Attorney-General’s Department had placed an embargo on assets and accounts belonging to Cabal in several countries throughout the world.  It was said:

“The offences for which he is being prosecuted are those of fraud against individuals and against financial institutions, and also tax fraud, all of which have inflicted heavy financial losses on Mexican citizens and companies.  Worse still, Cabal Peniche has allegedly committed an offence classified by the law as serious, namely that of money laundering.  The illegal acts of which he is accused involve over 600 million dollars.”

Reference was made to Cabal having been on the run from the law for over four years and that his alleged responsibility had not only come to light in Mexico but also in other countries where he had been accused of fraud.  The statement went on:

“These facts corroborate that he is not being prosecuted for political reasons but rather because he is an alleged offender.”

The advertisement then went on to discuss what was said to be “Cabal’s strategy” of trying to “…implicate in alleged illegal acts a Government which from the outset has pursued him until it caught him and that is waging a permanent battle against impunity” (sic). His only defence, it was said, has been to try and pass himself off before Australian authorities as a person subjected to political persecution.  The statement then said:

“It is to be deplored that, whether through ignorance or driven by purely electoral interests, legislators of the National Action Party [PAN] and of the Party of the Democratic Revolution [PRD] should come to the public defence of this alleged offender.  It is somewhat of a paradox that those who publicly claim to combat impunity should nevertheless be assisting Carlos Cabal to obtain his own.”

The advertisement then went on to specify a number of alleged lies propagated by Cabal.  These included what was said to be the lie that the Mexican legal system was prosecuting him for expressing his political ideas.  It also said he had lied when he said he gave millions to the PRI for the financing of the presidential campaign.  Supporters’ contributions received by the Party for that purpose were said to have been within the legal limits.  1993 contributions by different groups of supporters linked to Banco Union were made without the PRI breaching in any way the laws then in force.  The matter of financing of the 1994 campaign had been analysed by authorities who were said to have found in favour of the PRI.  It was said:

“In fact, in June of this year the Federal Electoral Court …handed down final and irreproachable judgments with regard to the appeals lodged by the PRD in relation to this matter, which has accordingly become res judicata.”

The advertisement which appeared over the designation “National Executive Committee” ended with the words:

“Carlos Cabal Peniche has not acted, does not act, and will not act with impunity.  The full weight of the law will be brought to bear.  That is the commitment of the PRI.”

83                  It is not necessary for present purposes to set out the convoluted history of proceedings generated by the arrest of Cabal and Pasini and their attempted extradition.  That history includes litigation in the Supreme Court of Victoria relating to the seizure of assets, applications in the Federal Court challenging the refusal of bridging visas pending the hearing of an application for protection visas, a pending application for judicial review of the refusal of protection visas, proceedings related to the terms of custody and the refusal of bail and a challenge to the extradition notices issued by the Minister.  An extradition hearing in relation to the three requests was heard over some sixty nine days before Her Worship Ms Hannan in the Melbourne Magistrates’ Court and on 17 December 1999 her Worship ruled that Cabal and Pasini were eligible for surrender.  The present proceedings seek a review of that ruling under s 21 of the Extradition Act 1988 and otherwise judicial review.

The Offences Alleged

84                  The offences alleged against Cabal and Pasini under Mexican law are conveniently summarised in the notices issued by the Acting Attorney-General to the magistrate under s 16 of the Extradition Act.  The first such notice, which was issued on 7 January 1999 pursuant to the first request from Mexico for the extradition of Cabal, sets out the following offences which he is said to have committed.

1.         Being an employee or officer of a credit institution who authorised transactions, being aware that such transactions will result in loss to the institution to which he renders his services, contrary to Article 112, section V of the Law of Credit Institutions of Mexico (six counts).

2.         Being an employee and officer of a credit institution who granted credit to individuals or corporations whose insolvency condition is known to him, if it is foreseeable, at the moment of the execution of the transaction, that the individual or corporation lacks the financial capacity to pay or who is responsible for the total of the credited sums, deriving in economic loss to the institution, contrary to Article 112 section V(c) of the Law of Credit Institutions of Mexico (five counts);

3.         Being an employee and officer of a credit institution who renewed partially or totally overdue credits to individuals or corporations referred to in Article 112 section V(c) of the Law of Credit Institutions of Mexico, contrary to Article 112 section V(d) of the Law of Credit Institutions of Mexico (four counts);

4.         Being an employee and officer of a credit institution who knowingly allowed a debtor to divert the total of the credit to his own benefit or that of third parties, and as a consequence, resulted in economic detriment to the institution, contrary to Article 112 section V(e) of the Law of Credit Institutions of Mexico (five counts);

5.         Being an employee and officer of a credit institution who intentionally omits to register transactions carried out by the institution or who alters the registers so as to conceal the true nature of transactions carried out thereby affecting the state of the assets, liabilities, contingent accounts or profits, contrary to Article 113 of the Law of Credit Institutions of Mexico (two counts);

6.         Being an employee and officer of a credit institution who either by himself or through an intermediary, unduly receives from his clients a benefit as a determining condition to carry out a transaction, contrary to Article 114 of the Law of Credit Institutions of Mexico (one count); and

7.         Fraud, contrary to Article 386 of the Federal Criminal Code in Matters of Common Law for the Federal District and in Federal Matters for the Republic of Mexico (three counts).

85                  Under the second extradition request, the following offences were alleged against Cabal:

1.         Tax Fraud Comparable, contrary to Article 109 section I of the Federal Tax Code of Mexico (two counts);

2.         Falsely Declaring Losses, contrary to Article III section IV of the Federal Tax Code of Mexico (one count);

3.         Being an employee and officer of a credit institution who granted credit to individuals or corporations whose insolvency condition is known to him, if it is foreseeable, at the moment of the execution of the transaction, that the individual or corporation lacks the financial capacity to pay or who is responsible for the total of the credited sums, deriving in economic loss to the institution, contrary to Article 112 section V paragraph (c) of the Law of Credit Institutions of Mexico (one count); and

4.         Money Laundering, contrary to Article 115 Bis section I paragraph (b) of the Federal Tax Code of Mexico (one count).

86                  In respect of Pasini, the offences for which his extradition is requested, as set out in the notice issued by the Attorney-General, are as follows:

1.         One count of wilfully helping Carlos Cabal Peniche to commit the following crime: being an employee and officer of a credit institution who granted credit to individuals or corporations whose insolvency condition is known to him, if it is foreseeable, at the moment of the execution of the transaction, that the individual or corporation lacks the financial capacity to pay or who is responsible for the total of the credited sums, deriving in economic loss to the institution, contrary to Article 112 section V(c) of the Law of Credit Institutions of Mexico in connection with Article 13, section VI of the Federal Criminal Code in Local Matters for the Federal District and in Federal Matters for the Republic of Mexico;

2.         One count of wilfully helping Carlos Cabal Peniche commit the following crime: being an employee and officer of a credit institution who knowingly allowed a debtor to divert the total of the credit to his own benefit or that of third parties, and as a consequence, resulted in economic detriment to the institution, contrary to Article 112 section V(e) of the Law of Credit Institutions of Mexico in connection with Article 13, section VI of the Federal Criminal Code in Local Matters for the Federal District and in Federal Matters for the Republic of Mexico; and

3.         One count of concealment contrary to Article 400, section II of the Federal Criminal Code in Local Matters for the Federal District and in Federal Matters for the Republic of Mexico.

87                  In proceedings decided earlier this year, reported as Bertran v Vanstone (2000) 173 ALR 63,  Kenny J dismissed an application for review of the Minister’s decision to issue the s 16 notices. Allegations made against Cabal and Pasini are reflected in memoranda provided by the Attorney-General’s Department to the Minister on 7 January 1999, 21 January 1999 and 23 March 1999 which are set out in her judgment.  They provide a convenient overview of the allegations made.    They set out in a concise form the nature of the conduct in which Cabal and Pasini are said to have engaged.   The memoranda are not referred to as evidence of the truth of their contents or as going to the merits of any of the matters raised in this review proceeding.

88                  According to the memorandum of 7 January 1999 relating to the first extradition request:

“The 23 offences against the Law of Credit Institutions allege that Cabal misused his position as President, major shareholder and member of the High Credit Committee of a bank, the Banco Union, to authorise loans and lines of credit to numerous companies whose solvency and ability to repay the loans was questionable.  It is alleged that these companies were, in the main, controlled by Cabal himself and the loans received by these companies ultimately used by Cabal for his personal purposes, and acquiring another bank, the Banca Cremi.  In some instances, the loans by Banco Union authorised by Cabal, which ultimately were received by the companies he controlled, were also used to benefit persons associated with him; in other instances money was diverted, with Cabal’s knowledge, from the accounts of other companies held at Banco Union to the accounts of the companies controlled by him to be used, ultimately, for his personal purposes.  The amounts involved in the criminal conduct which is the subject of the 23 offences against the Law of Credit Institutions range from US$50 to $100 million.

…

The three fraud offences alleged against Cabal arise out of fraudulent scheme practised by officers in the Banco Union – with Cabal’s knowledge and authorisation – upon unsuspecting companies who approached the bank for loans.  Selected companies seeking loans from Banco Union were persuaded by officers in Banco Union to participate in a scheme in which the loans would ostensibly be granted to the companies but would, in fact, be diverted to third party companies called the “terminal accredited persons”.  The unsuspecting companies were told that the “terminal accredited persons” would pay them high rates of interest.  The unsuspecting companies were required to sign blank promissory notes by way of security and hand these to officers in Banco Union.  It is alleged that Cabal designed the scheme and authorised his officers in Banco Union to market the scheme to selected unsuspecting corporate customers.

The “terminal accredited persons” in fact, were paper companies or companies mainly controlled by Cabal.  It is alleged that neither Cabal nor his officers in Banco Union had any intention to ensure payment of high rates of interest by the “terminal accredited persons” to the unsuspecting victim companies.  The money was not repaid to the companies but rather it was used by Cabal for his own purposes.  At the end of the day the victim companies owed money to the bank but the “terminal accredited persons” were without any assets.  In this scheme, three companies are alleged to have been defrauded of approximately US$54 to $57 million in each case.

A total loss of US$242,722,590 was allegedly suffered by Banco Union and the defrauded companies as a result of Cabal’s conduct.” (66)

 

The further memorandum provided on 23 March 1999 in relation to the second extradition request was as follows:

“The second request seeks Cabal’s extradition in relation to four warrants ordering his arrest for the following five offences in Mexico:

(a)       Tax Fraud Comparable contrary to Art 109 section I of the Federal Tax Code of Mexico (2 counts);

(b)       Falsely Declaring Losses contrary to Art III, section IV of the Federal Tax Code of Mexico (1 count);

(c)        an offence contrary to Art 112, section V para (c) of Mexico’s Law of Credit Institutions (1 count); and

(d)       Money Laundering contrary to Art 115 Bis, section I, para (b) of the Federal Tax Code of Mexico (1 count).

The offence against Art 112, section V, para (c) of Mexico’s Law of Credit Institutions was included in the first extradition request.  However, due to technical difficulties with the supporting documents presented in the first request, and following consultations between the Mexican authorities and departmental officers, the Mexican authorities decided to remove this offence from the first request and present it in the second request.  The remaining four offences are additional to those included in the first request.

The offence of Falsely Declaring Losses and one of the counts for the offence of Tax Fraud Comparable were allegedly committed by Cabal in the State of Tabasco, Mexico, while he was President and administrator of a banana production and marketing company… Briefly, it is alleged that Cabal was responsible for [the company] filing a false taxation return for the 1993 fiscal year.  The company is alleged to have falsely claimed 13,016,976 Mexican Pesos worth of expenses and deductions to avoid the payment of Mexican federal taxes.

The offence against the Law of Credit Institutions and the Money Laundering offence arise out of Cabal’s alleged misuse of his position as President, major shareholder and member of the High Credit Committee of a bank in Mexico called the Banco Union.  It is alleged that in May 1994, at Mexico City, Cabal authorised a line of credit of US$50 million to a company…whose solvency and ability to repay the loans was questionable.  It is alleged that the funds from the line of credit ultimately benefited Cabal, directly and indirectly, as well as persons associated with him.  It is alleged that the funds from the line of credit were also used by Cabal for his personal purposes, including acquiring another bank, the Banca Cremi.  The funds allegedly passed through a number of entities controlled by or related to Cabal to conceal the fact that the funds advanced to [the company] by Banco Union were being diverted to Cabal’s own use. 

The second count for the offence of Tax Fraud Comparable alleges that Cabal falsely declared his income in his personal tax return for the 1993 fiscal year.  Cabal is alleged to have understated his income by 488,518,032.99 Mexican Pesos.” (67-68)

 

89                  The memorandum relating to the third extradition request summarised the allegations against Pasini as follows:

“The Mexican authorities allege that Pasini assisted his brother-in-law Carlos Cabal Peniche (Cabal), whose extradition is also being sought by Mexico, to defraud Banco Union.

…

The first two counts allege Pasini assisted Cabal in relation to the making of a fraudulent loan to a company…On 26 January 1994 the High Credit Committee of Banco Union, with Cabal’s approval, authorised a line of credit of US$80 million to [the company].  [The company] was controlled by Cabal.  It is alleged that [the company] did not have the capacity to repay these advances and that the funds were passed through a number of transactions before being diverted to Cabal’s own use.  Pasini is alleged to have assisted Cabal in relation to the offences arising from this loan because he allowed part of the funds obtained by [the company] pursuant to the line of credit to be passed through his cheque account.

It is alleged that 30,121,878.65 Mexican Pesos advanced to [the company] under the line of credit were paid into Pasini’s cheque account on 31 August 1994.  On the same day these funds were then combined with other funds in Pasini’s account to allow Pasini to write a cheque for 89,780,681.55 Pesos to Banco Union to purchase US$26,409,966.63 which were then paid into an account held by [the company].

The third offence alleges that in 1995, Cabal, while living in Spain, had a company called Xurtu SL incorporated.  Pasini, who by this time was also living in Spain, was appointed president of Xurtu.  It is alleged that part of the funds defrauded by Cabal from Banco Union were transferred from an account operated by Cabal’s lawyer in the United States to Xurtu and then used by Pasini to pay Cabal’s living expenses to prevent Cabal being located in Spain.  Pasini was signatory to the Xurtu bank accounts in Spain.” (68-69)

Statutory Framework

90                  The principal objects of the Extradition Act 1988 as set out in s 3 of that Act are:

“(a)       to codify the law relating to the extradition of persons from Australia to extradition countries and New Zealand and, in particular, to provide for proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited, without determining the guilt or innocence of the person of an offence;

(b)       to facilitate the making of requests for extradition by Australia to other countries; and

(c)        to enable Australia to carry out its obligations under extradition treaties.”

An “extradition country” means, inter alia, a country which is declared by the regulations to be an extradition country.  Mexico is so declared by regulation 4 of the Extradition (United Mexican States) Regulations 1991.

91                  The Act contemplates that the process for the extradition of a person from Australia to another country will commence with the receipt by the Commonwealth Attorney-General of an extradition request from an extradition country. Such a request having been received the Attorney-General may in his or her discretion provide a notice to a magistrate in the statutory form stating that the request has been received.  The Attorney-General is not to give the notice unless of opinion that the person is an extraditable person in relation to the extradition country.  He or she must further be of opinion that if the conduct constituting the extradition offence or any of them had taken place in Australia at the time at which the request was received, the conduct or equivalent would have constituted an extradition offence in relation to Australia.  The notice must not be issued if the Attorney-General is of opinion that there is an extradition objection in relation to the offence or all of them for which surrender of the person is sought.  There is provision under s 12 of the Act for the issue by a magistrate of a provisional warrant upon application of the extradition country.  If the Attorney-General decides not to issue a notice in relation to the person then the Attorney-General shall, by notice in writing, direct the magistrate to cancel the warrant.

92                  The notice having been issued and the person the subject of the notice having been taken into custody and not having consented to extradition, the next step in proceedings is to have a magistrate determine the person’s eligibility for surrender.  This is done under s 19 of the Act which provides:

“19(1)  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.

(2)  For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:

(a)       the supporting documents in relation to the offence have been produced to the magistrate;

(b)       where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate of any other documents – those documents have been produced to the magistrate;

(c)        the magistrate is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and

(d)       the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence.

(3)  In paragraph (2)(a), supporting documents, in relation to an extradition offence, means:

(a)       if the offence is an offence of which the person is accused – a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant;

(b)       if the offence is an offence of which the person has been convicted – such duly authenticated documents as provide evidence of:

            (i)         the conviction;

            (ii)        the sentence imposed or the intention to impose a sentence; and

            (iii)       the extent to which a sentence imposed has not been carried out; and

(c)       in any case:

            (i)         a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and

            (ii)        a duly authenticated statement in writing setting out the conduct constituting the offence.

(4)  Where, in the proceedings:

(a)       a document or documents containing a deficiency or deficiencies of relevance to the proceedings is or are produced; and

(b)       the magistrate considers the deficiency or deficiencies to be of a minor nature;

the magistrate shall adjourn the proceedings for such period as the magistrate considers reasonable to allow the deficiency or deficiencies to be remedied.

(5)  In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought.

(6)  Subject to subsection (5), any document that is duly authenticated is admissible in the proceedings.

(7)  A document that is sought by or on behalf of an extradition country to be admitted in the proceedings is duly authenticated for the purposes of this section if:

(a)       it purports to be signed or certified by a judge, magistrate or officer in or of the extradition country; and

(b)       it purports to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal:

            (i)         in any case – of the extradition country or of a Minister, Department of State or Department or officer of the Government, of the extradition country; or

            (ii)        where the extradition country is a colony, territory or protectorate – of the person administering the Government of that country or of any person administering a Department of the Government of that country.

(7A)  Subsection (7) has effect in spite of any limitation, condition, exception or qualification under subsection 11(1), (1A) or (3).

(8)  Nothing in subsection (6) prevents the proof of any matter or the admission of any document in the proceedings in accordance with any other law of the Commonwealth or any law of a State or Territory.

(9)  Where, in the proceedings, the magistrate determines that the person is eligible for surrender to the extradition country in relation to the extradition offence or one or more of the extradition offences, the magistrate shall:

(a)       by warrant in the statutory form, order that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22(5);

(b)       inform the person that he or she may, within 15 days after the day on which the order in the warrant is made, seek a review of the order under subsection 21(1); and

(c)       record in writing the extradition offence or extradition offences in relation to which the magistrate has determined that the person is eligible for surrender and make a copy of the record available to the person and the Attorney-General.

(10)Where, in the proceedings, the magistrate determines that the person is not, in relation to any extradition offence, eligible for surrender to the extradition country seeking surrender, the magistrate shall:

(a)       order that the person be released; and

(b)       advise the Attorney-General in writing of the order and of the magistrate’s reasons for determining that the person is not eligible for surrender.”

93                  The magistrate’s order is subject to review by the Federal Court under s 21 of the Act which provides as follows:

“21(1)  Where a magistrate of a State or Territory makes an order under subsection 19(9) or (10) in relation to a person whose surrender is sought by an extradition country:

(a)       in the case of an order under subsection 19(9) – the person; or

(b)       in the case of an order under subsection 19(10) – the extradition country;

may, within 15 days after the day on which the magistrate makes the order, apply to the Federal Court, or to the Supreme Court of the State or Territory, for a review of the order.

(2)  The Court may, by order:

(a)       confirm the order of the magistrate; or

(b)       quash the order and direct a magistrate to:

            (i)         in the case of an order under subsection 19(9) – order the release of the person; or

            (ii)        in the case of an order under subsection 19(10) – order, by warrant in the statutory form, that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22(5).

(3)  The person or the extradition country, whether or not the person or country was the applicant for review under subsection (1), may appeal to the Full Court of the Federal Court from the order of the Federal Court or the Supreme Court.

(4)  The person or the extradition country is not entitled to appeal to the Full Court more than 15 days after the day on which the order of the Federal Court or the Supreme Court is made.

(5)  The High Court shall not grant special leave to appeal against the order of the Full Court made on the appeal referred to in subsection (3) if the application for special leave is made more than 15 days after the day on which the order of the Full Court is made.

(6)  Where the person or the extradition country:

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

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

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

the following provisions have effect:

(d)       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)       if the court to which the application or appeal is made determines that the person is eligible for surrender, within the meaning of subsection 19(2), in relation to an extradition offence or extradition offences – the court shall include in its judgment on the review or appeal a statement to that effect specifying the offence or offences.”

94                  In the event that the magistrate’s order stands it then falls to the Attorney-General to decide whether or not the person is to be surrendered.  This is the process for which s 22 provides.  Section 22 is in the following terms:

22(1)  In this section:

eligible person means a person who has been committed to prison:

 

            (a)        by order of a magistrate made under section 18; or

            (b)        by order of a magistrate under subsection 19(9) or required to be made under subparagraph 21(2)(b)(ii) (including by virtue of an appeal referred to in section 21), being an order in relation to which no proceedings under section 21 are being conducted or available;

qualifying extradition offence, in relation to an eligible person, means any extradition offence:

 

            (a)        if paragraph (a) of the definition of eligible person applies – in relation to which the person consented in accordance with section 18; or

            (b)        if paragraph (b) of the definition of eligible person applies – in relation to which the magistrate referred to in that paragraph or the court that conducted final proceedings under section 21, as the case requires, determined that the person was eligible for surrender within the meaning of subsection 19(2).

(2)       The Attorney-General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences.

(3)       For the purposes of subsection (2), the eligible person is only to be surrendered in relation to a qualifying extradition offence if:

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

            (b)        the Attorney-General is satisfied that, on surrender to the extradition country, the person will not be subject to torture;

            (c)        where the offence is punishable by a penalty of death – by virtue of an undertaking given by the extradition country to Australia, one of the following is applicable:

                       (i)         the person will not be tried for the offence;

                       (ii)        if the person is tried for the offence, the death penalty will not be imposed on the person;

                       (iii)       if the death penalty is imposed on the person, it will not be carried out;

           

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

            (e)        where, because of section 11, this Act applies in relation to the extradition country subject to a limitation, condition, qualification or exception that has the effect that:

                       (i)         surrender of the person in relation to the offence shall be refused; or

                       (ii)        surrender of the person in relation to the offence may be refused;

                       in certain circumstances – the Attorney-General is satisfied:

                       (iii)       where subparagraph (i) applies – that the circumstances do not exist; or

                       (iv)       where subparagraph (ii) applies – either that the circumstances do not exist or that they do exist but that nevertheless surrender of the person in relation to the offence should not be refused; and

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

(4)       For the purposes of paragraph (3)(d), the extradition country shall be taken to have given a speciality assurance in relation to the eligible person if, by virtue of:

            (a)       a provision of the law of the country;

            (b)       a provision of an extradition treaty in relation to the country ; or

            (c)        an undertaking given by the country to Australia;

            the eligible person, after being  surrendered to the country, will not, unless the eligible person has left or had the opportunity of leaving the country:

            (d)       be detained or tried in the country for any offence that is alleged to have been committed, or was committed, before the eligible person’s surrender other than:

                       (i)         any surrender offence;

                       (ii)        any offence (being an offence for which the penalty is the same or is a shorter maximum period of imprisonment or other deprivation of liberty) of which the eligible person could be convicted on proof of the conduct constituting any surrender offence;

                       (iii)       any extradition offence in relation to the country (not being an offence for which the country sought the surrender of the eligible person in proceedings under section 19) in respect of which the Attorney-General consents to the eligible person being so detained or tried; or

            (e)        be detained in the country for the purpose of being surrendered to another country for trial or punishment for any offence that is alleged to have been committed, or was committed, before the eligible person’s surrender to the first-mentioned country, other than any offence in respect of which the Attorney-General consents to the eligible person being so detained and surrendered.

(5)       Where the Attorney-General determines under subsection (2) that the eligible person is not to be surrendered to the extradition country in relation to any qualifying extradition offence, the Attorney-General shall order, in writing, the release of the person.”

95                  There are some important definitions to be found in s 5 of the Act.  Relevant to present purposes they are as follows:

“extradition offence means:

.

.

.

(b)       in relation to Australia or a part of Australia – an offence against a law of Australia, or a law in force in the part of Australia, for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months.”

“magistrate means:

(a)       a magistrate of a Territory other than the Northern Territory or Norfolk Island; or

(b)       a magistrate of a State, the Northern Territory or Norfolk Island, being a magistrate in respect of whom an arrangement is in force under section 46;”

“offence includes an offence against a law relating to taxation, customs duties or other revenue matter or relating to foreign exchange control;”

“political offence, in relation to a country, means an offence against the law of the country that is of a political character (whether because of the circumstances in which it is committed or otherwise and whether or not there are competing political parties in the country), but does not include:…”

There follow a number of classes of offence constituted by conduct referred to in various international conventions which it is not necessary to set out here.  Other exclusions set out in paragraphs (b), (c) and (d) of the definition are also not relevant for present purposes.

96                  The term “extraditable person” is defined in s 6 of the Act thus:

“6.  Where:

(a)       either:

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

            (ii)        a person has been convicted of an offence or offences against the law of a country either before or after the commencement of this Act and:

                       (A)        there is an intention to impose a sentence on the person as a consequence of the conviction; or

                       (B)        the whole or a part of a sentence imposed on the person as a consequence of the conviction remains to be served;

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

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

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

97                  The content of extradition objections to which the Act refers is set out in s 7:

“7.  For the purposes of this Act, there is an extradition objection in relation to an extradition offence for which the surrender of a person is sought by an extradition country if:

(a)       the extradition offence is a political offence in relation to the extradition country;

(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 race, religion, nationality or 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 race, religion, nationality or political opinions;

(d)       assuming that the conduct constituting the extradition offence, or equivalent conduct, had taken place in Australia at the time at which the extradition request for the surrender of the person was received, that conduct or equivalent conduct would have constituted an offence under the military law, but not also under the ordinary criminal law, of Australia; or

(e)        the person has been acquitted or pardoned by a competent tribunal or authority in the extradition country or Australia, or has undergone the punishment provided by the law of that country or Australia, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence.”

98                  Section 10 contains interpretive provisions relating to offences, and in particular ss10(2) and 10(3) which provide:

“(2)     A reference in this Act to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed.

(3)       In determining for the purposes of paragraph 7(d), subparagraph 16(2)(a)(ii) or paragraph 19(2)(c) whether, if conduct constituting an extradition offence in relation to an extradition country, or equivalent conduct, had taken place in Australia or in a part of Australia at a particular time, that conduct or equivalent conduct would have constituted an offence of a particular kind in relation to Australia or the part of Australia, the following provisions have effect:

            (a)        where the conduct or equivalent conduct consists of 2 or more acts or omissions – regard may be had to all or to only one or some of those acts or omissions;

            (b)        any difference between the denomination or categorisation of offences under the law of the country and the law of Australia, or the law in force in the part of Australia, as the case requires, shall be disregarded.”

By virtue of s 11, the application of the Act may be modified by regulation to the extent necessary to give effect to particular bilateral extradition treaties.  The regulations may state that the Act applies in relation to a specified extradition country “…subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country, being a treaty a copy of which is set out in the regulations.” ( s 11(1)(a)) A shorthand formula for expressing such a regulation is set out in s 11(1C) which provides:

“11(1C)  For the purposes of subsections (1) and (1A), the limitations, conditions, exceptions or qualifications that are necessary to give effect to a treaty may be expressed in the form that this Act applies to the country concerned subject to that treaty.”

For the purpose of determining under subs 19(1) whether a person is eligible for surrender, no limitation, condition, qualification or exception otherwise applicable under s 11 has the effect of requiring or permitting a magistrate to be satisfied of any matter other than those set out in s 19(2). (s 11(6))  That is, save for the “sufficient evidence test” where the Treaty makes that test a condition of eligibility for surrender. (s 11(4) and (5))

99                  Arrangements under which the magistrates of States or Territories may perform functions under the Extradition Act can be made pursuant to s 46 thus:

“46(1)  The Governor-General may:

(a)       arrange with the Governor of a State for the performance, by all or any of the persons who from time to time hold office as magistrates of that State, of the functions of a magistrate under this Act; or

(b)       arrange with the Administrator of the Northern Territory or of Norfolk Island for the performance, by all or any of the persons who from time to time hold office as magistrates of the Northern Territory or of Norfolk Island, as the case may be, of the functions of a magistrate under this Act.

(2)  A copy of each arrangement made under this section shall be published in the Gazette.”

100               The scheme of the Act outlined above, to the extent relevant for present purposes, was summarised by the Full Court in Harris v Attorney-General (Cwth) (1994) 52 FCR 386 at 389 thus:

“The Act contemplates four stages in extradition proceedings as follows:

(1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered.  In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional warrant under s 12(1) or by the giving of a notice under s 16(1).  Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19.  Where a person is on remand under s 15 and the Attorney-General has given a notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender.  If eligibility is so determined by the magistrate, provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered.”

That summary sets out the essential administrative steps in extradition proceedings.  Judicial review under s 21 is interpolated between the magistrate’s determination of eligibility under s 19 and the Attorney-General’s determination of surrender under s 22.

The Treaty of Extradition between Australia and Mexico

101               The Extradition Act is said by Regulation 5 of the Extradition (United Mexican States) Regulations 1991 to apply “in relation to Mexico subject to the Treaty on Extradition between Australia and Mexico done at Canberra on 22 June 1990”.  A copy of the Treaty is set out in the Schedule to the Regulations.  The subjection of the Act to the Treaty, for which Regulation 5 provides, is to be construed, in accordance with s 11(1C) of the Act, as a statement that the Act applies in relation to Mexico subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to the Treaty.

102               The Treaty opens by reciting “the close ties between both peoples” and the desire of the two countries to promote greater co-operation “in all areas of common interest, including the suppression of crime by concluding a treaty on extradition”.  In Article 1 it is provided that:

“The Parties agree to extradite to each other, in accordance with the provisions of this Treaty, persons against whom criminal proceedings have been initiated or who are wanted for the imposition or enforcement of a judicial sentence involving deprivation of liberty for an extraditable offence.”

“Extraditable offences” are defined as those punishable under the laws of both Parties by a penalty no less severe than deprivation of liberty for one year. (Article 2)  In determining whether conduct is an offence against the laws of both Parties where the constituent elements of the offence differ, the totality of the acts or omissions alleged against a person whose extradition is sought shall be taken into account. (Article 2(3))  Extradition shall be granted for extraditable offences against laws relating to taxation, customs duties, foreign exchange control or other revenue matters. (Article 4)  It shall not be granted for offences regarded as political offences by the Requested Party or connected with offences of that nature (Article 5(1)).  Nor shall it be granted if the Requested Party has substantial grounds for believing that the request for extradition has been made with the aim of prosecuting or punishing a person on account of that person’s race, religion, nationality or political opinions or that the person’s situation may be prejudiced for any of those reasons (Article 5(2)). 

103               In relation to the supporting documents to accompany a request for extradition, Articles 15 and 16 provide:

“1.  The request for extradition shall be made in writing through the diplomatic channel.

2.  All documents submitted in support of a request for extradition shall be authenticated, in accordance with the following provisions:

(a)       in the case of a request made by the United Mexican States, a document is authenticated for the purposes of this Treaty if:

            (i)         it purports to be signed or certified by a judicial authority of the United Mexican States, and

            (ii)        it purports to be sealed with an official seal of the United Mexican States.

(b)       in the case of a request made by Australia, a document is authenticated for the purposes of this Treaty if:

            (i)         the document is certified by a competent judicial authority of Australia, and

            (ii)        the document is legalized by the Australian Department of Foreign Affairs and Trade and by the Mexican diplomatic or consular representative duly accredited to Australia.

Documentary Requirements

ARTICLE 16

1.  The following documents, accompanied by a translation into the language of the Requested State, shall be sent with the extradition request:

(a)       a statement of the acts or omissions for which the extradition is requested, indicating as precisely as possible the time and place of their commission and their legal description;

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

(c)       a statement of the basis of the laws relating to the offence or offences which are the subject of the request and a statement of the punishment that may be imposed and the provisions relating to the period of limitation or prescription;

(d)       the details which enable the identity and nationality of the person sought to be established and, whenever possible, information which may help establish the person’s location; and

(e)       when a person has been convicted, a statement that it is intended to impose a sentence or, when a sentence has been imposed, the length of that sentence, the fact that it is immediately enforceable and, if applicable, the period remaining to be served.

2.  To the extent permitted by the law of the Requested Party, extradition of a person may be granted pursuant to the provisions of this Treaty, notwithstanding that the requirements of this Article have not been complied with, provided that the person sought consents to an order for his extradition being made.”

104               Much has been made in this case of the alleged inadequacies of the Mexican judicial system and its susceptibility to political influences.  While these matters are advanced as relevant to the extradition objections relied upon by the applicants, it is important to bear in mind that the general functioning of the judicial system of an extradition country is not a matter for this Court.  Such judgments, no doubt, have a part to play in the decision of the Executive Government in entering into the Treaty.  They may also, at least in theory, have a bearing upon the legislative decision whether or not to disallow particular Treaty regulations and in the ultimate decision of an Attorney-General whether or not to surrender a requested person.  The acceptability to Australia of the system of criminal justice in an extradition country is an issue “…to be determined by the Government of the Commonwealth when deciding to extend the application of the Extradition Act to the State in question, whether by treaty or regulation, and, in a given case, perhaps before ordering the surrender of the fugitive…in exercise of the discretion…given the Attorney-General” – Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 514 (Gummow J).   That is not to say that governments and judicial systems of requesting countries may not have changed significantly since a Treaty of Extradition was entered into.  But the continuance of the Treaty and ultimate surrender decisions are still matters for the executive and not for the courts.                 

Grounds for Review

105               By their amended statement of claim Cabal and Pasini seek a review of the magistrate’s decision under s 21 of the Extradition Act and declaratory and other relief under s 39B(1A) of the Judiciary Act 1903 (Cth) and the accrued jurisdiction of the Court.  The grounds upon which relief is sought may be summarised as follows.

Declaratory Relief

1.         Constitutional Invalidity of the Extradition Act (Paragraphs 7-24)

Extradition Review

 

2.         Purported Warrants not Warrants for the purposes of the Extradition Act (Paragraph 27)

 

3.         Want of authentication required by the Act in relation to:

(i)         translation of purported warrants (par 28);

(ii)        the purported warrants (par 33);

(iii)       the statements of offences under s 19(3)(c)(i) (par 34);

(iv)       the statements of conduct under s 19(3)(c)(ii) (par 37).

4.         Insufficiency of partial or unqualified or unreliable translations in relation to:

(i)         the purported warrants (pars 29-31);

(ii)        the statement of offences (par 35);

(iii)       the statement of conduct (par 38).

5.         Illegibility and/or incompleteness of:

(i)         the purported warrants (par 32);

(ii)        the statement of offences (par 36);

6.         The legal insufficiency of the statements of conduct for:

(i)         failure to set out “conduct constituting the offence” (par 39) – on 5 April 2000 I ruled that this ground of review is not available to the applicants – Cabal v United Mexican States (No 1) (2000) 171 ALR 649 ;

(ii)        incorporation of two or more offences in the one statement (par 40);

(iii)       consequential failure to establish dual criminality (par 41).

7.         Extradition objections – that the surrender of the applicants is actually sought for the purpose of prosecuting each applicant on account of his political opinion (par 42(1)).

8.         Extradition objection – that on surrender to Mexico each applicant may be prejudiced at his trial, or punished, detained or restricted in his personal liberty, by reason of his political opinion (42(2)).

Judicial Review

9.         Erroneous decision that the requirements of the Extradition Act had been met.  This ground repeats, under the heading of Judicial Review, paragraphs 27 to 41 relating to the insufficiency of the purported warrants and supporting statements. 

10.       Failure to take into account relevant material (par 46).

11.       Failure to require particulars of Mexico’s contention that representations by the Mexican Ambassador to the Argentinian Ambassador in respect of a prospective witness, Doctor Fappiano, were made at the request of senior counsel for Mexico (par 48).

12.       Failure by the magistrate to consider evidence and submissions by applicants in support of contentions that Mexico had produced no statement setting out the conduct constituting the offence (par 48).

13.       Misconception of function by the magistrate by proceeding on the assumption that the motives of the Mexican government were irrelevant to the proceedings before her (par 49).

14.       Erroneous decision by the magistrate that she could rely only upon facts and inferences established on balance of probabilities in order to be satisfied of substantial grounds for believing there to be an extradition objection and consequential failure to take into account hypotheses supporting existence of extradition objections (par 50(1) – (3)).

15.       Erroneous decision by the magistrate that she would have to be satisfied that there was evidence capable of satisfying her that the applicants would receive treatment different from any other persons facing criminal prosecution in Mexico in order to be satisfied of substantial grounds for believing that there is an extradition objection under s 7(c). (par 50(4))

16.       Erroneous approach to determination of whether opinions claimed by applicants were political opinions (par 51).

17.       Erroneously narrow characterisation of applicants’ case in respect of extradition objections, failure to take into account evidence in relation to extradition objections, erroneous determination that no evidence in relation to issues affecting extradition objection (par 52(4)).

106               In addition to these grounds the applicants sought at the hearing to amend the statement of claim by adding a new paragraph 41A by which it was contended that the documents required to be produced by virtue of the modified application of the Act in relation to Mexico were not produced.  The decision on that amendment was reserved to judgment but the amendment was abandoned before the close of argument. 

107               The relief claimed on the constitutional point is a declaration that the Extradition Act is not a valid law of the Commonwealth and that the warrants signed by the learned magistrate are not lawful warrants for the imprisonment of the applicants.  Alternatively, review is sought of the orders by which the learned magistrate committed the applicants to prison under s 19(9) of the Extradition Act. Under the judicial review heading the applicants seek an order in the nature of certiorari setting aside the magistrate’s decision.

Constitutional Validity of the Extradition Act

108               By the amended statement of claim it is contended that s 21 of the Extradition Act purports to empower and direct the Federal Court to perform an administrative function and to exercise administrative powers in the performance of that function.  The section is therefore said to constitute an invalid attempt by the Commonwealth to confer non-judicial powers on the Court.  Moreover it is argued that it is an integral and non-severable component of the legislative scheme enacted by the Act.  In consequence the Act as a whole is not a valid law of the Commonwealth and the warrants are not lawful warrants for the imprisonment of the applicants.  Alternatively it is pleaded that in conducting the s 19 proceedings, Ms Hannan was not sitting as a court within the meaning of s 71 of the Constitution but was performing a judicial function and exercising judicial powers in performance of that function.  On that basis it is said that ss 19 and 46 of the Act purport to invest the judicial power of the Commonwealth in a person or persons not constituting a court for the purposes of s 71 of the Constitution, Ms Hannan being a State magistrate.  It is said that the provisions under which this occurs are non-severable components of the legislative scheme and that as a result the Act as a whole is not valid.

109               No argument was addressed to the second limb.  Indeed the applicants conceded that the magistrate was exercising an administrative function (T 262-3).  That was a concession properly made for the proposition is well established. In Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528, the High Court was concerned with whether the magistrate determining eligibility for surrender under s 19 is required to decide that the requested  person is or is not  an “extraditable person” under s 6.  That, it was held, is a matter determined upon the issue of a warrant under s 12 and when the Attorney-General decides whether to issue a notice to a magistrate under s 16.  Brennan CJ, Dawson and McHugh JJ in their joint judgment said at 538:

“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.”

Toohey J agreed (at 540) subject to some additional observations about the scope of judicial review of decisions made under the Act.  Gummow J said at 543:

“The magistrate was exercising his functions pursuant to arrangements made under s 46 of the Act between the Governor-General and the Governor of the State of Queensland.  It has been held in the Federal Court that, in performing functions under s 19, the magistrate does not exercise the judicial power of the Commonwealth.  This was accepted by both sides in the present appeal.”

It may be said that the decision in Kainhofer did not conclude, at the level of High Court authority, the characterisation of the magistrate’s function under s 19.  Even so, the matter is concluded, for present purposes, by successive decisions of the Full Court of the Federal Court.  Proceedings under s 19 and its equivalent in the Extradition (Foreign States) Act 1966 have been treated by the Court as administrative – Wiest at 486 (Burchett J) and 522 (Gummow J, Sheppard J agreeing at 482), Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 289 and Todhunter v United States of America (1995) 57 FCR 70 at 80.   In Papazoglou v Republic of the Philippines (1997) 74 FCR 108 at 125 (erroneously reported as Papzoglou) the Court said:

“It is clear that the functions performed by a magistrate pursuant to s 19 of the Extradition Act are administrative functions performed by them as personae designatae.”

A magistrate in determining eligibility for surrender under s 19 of the Act is exercising an administrative function and therefore not the judicial power of the Commonwealth.

110               The challenge to the validity of s 21 of the Act focussed upon the nature of the function it confers upon the Court.  The function is to “review … the order” of the magistrate. The word “review” is defined in the Shorter Oxford English Dictionary relevantly as follows:

“1. To see or behold again.

2. To view, inspect or examine a second time or again.

.

.

.

4.  Law. To submit (a decree act, etc) to examination or revision.”

Its ordinary legal meaning is ambulatory.  It does not limit the mechanisms of examination or revision that may be applied.  These may range from a full rehearing on the merits, with new evidence, to an examination of the questioned decision on limited grounds of error of law or process based upon the materials before the primary decision-maker.  Review “has no settled pre-determined meaning; it takes its meaning from the context in which it appears” – Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 261.  The term is “not one of precision”.  It may encompass judicial review on grounds of error of law, excess of power and breach of the rules of natural justice or administrative reconsideration in the light of changed circumstances – Bannister v See (1982) 42 ALR 78 at 81 (Toohey J).  In an appropriate context it could have “…a quite amorphous meaning” – Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 at 63 (Burchett J).  As Burchett J observed in the latter case, the High Court in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd  (1976) 135 CLR 616 at 620 and Phillips v Commonwealth (1964) 110 CLR 347 at 350 chose the word “review” to describe a rehearing which led to the pronouncement anew of the rights of the parties (at 63).

111               The statutes in which the word appears, and the kinds of processes for which they provide, are various.  So a review may be a hearing de novo in which the material before the court is not limited to that which was before the administrative decision-maker.  By way of apposite example the Service and Execution of Process Act 1901 (SEP Act) provided for the issue of warrants out of one State for apprehension of a person in another.  The administrative decision of a magistrate or Justice of the Peace to issue a warrant was subject to “review” by a Judge of the Supreme Court of the State in which the person was apprehended.  The Act specified that the review would be “by way of rehearing” and that “evidence in addition to or in substitution for, the evidence given on the making of the order” could be given on or in connection with the review (s 19).  In Aston v Irvine (1955) 92 CLR 353 which considered the validity of s 19, it was said that:

“Closely as the powers of the judge may resemble the authority of the magistrate or justice, the provision nevertheless does appear to treat the question as a matter arising under federal law for decision by a court of justice.  There is no reason why it should not be so treated.” (366) 

That section created a process described as “…in the fullest sense a rehearing” – Woss v Jacobsen (1985) 60 ALR 313 at 322 (Toohey J).  It conferred upon the Supreme Court of a State “… authority to exercise the primary power” at 330 (Davies J).  In both of these cases the review function under the SEP Act was regarded as involving the exercise of judicial power.

112               Under s 35(6) of the Federal Court of Australia Act the Court may review an exercise by a Registrar of a power of the Court.  In such a case the Court will “reconsider in the light of evidence before it and the law as at the time of review, the rights of the parties” – Sheahan v Joye  (1995) 57 FCR 389 at 391 (Branson J).  Review by the Court, under s 190D of the Native Title Act 1993, of a decision by the Registrar of Native Title to refuse registration of a native title determination application is similar in character – State of Western Australia v Strickland [2000] FCA 652 at par 63.  It extends to issues of law and fact [65].  The review proceeding enlivens the jurisdiction of the Court in respect of the whole matter and is not restricted to the material before the Registrar [65]-[67] – cf Powder Family v Registrar, National Native Title Tribunal [1999] FCA 913 which, although not explicitly referred to in Strickland, must be regarded as inconsistent with it in relation to the principles governing that kind of review.

113               The nature of the review process created by s 21 of the Extradition Act is defined in part by the limitation imposed upon the Court requiring it to “…have regard only to the material that was before the magistrate” (s 21(6)(d)).  It is also defined in part by the powers which the Court is given.  The only dispositive options are to confirm or quash the order of the magistrate.  Confirmation in this context amounts to a declaration that the magistrate’s order stands – see the discussion of “affirm” in Abebe v The Commonwealth (1999) 162 ALR 1 at 18 (Gleeson CJ and McHugh J), 48 (Gummow and Hayne JJ), 65 (Kirby J) 75-76 (Callinan J).

114               In Kainhofer v Director of Public Prosecutions (No 2) (1996) 70 FCR 184 it was said at 194:

“The word “review” is not a word of limitation; it is a word of great width.  The word may have different meanings depending upon its context…In the present context, it involves a judicial re-examination of the decision by the magistrate, limited to the material before the magistrate.” (emphasis added)

That does not mean that the Court is limited to the question whether the requested person is eligible for surrender in relation to the offence or offences for which the magistrate had determined that the person was eligible:

“…the question for the Court is whether the person is eligible for surrender to the extradition country in relation to any of the offences in relation to which surrender is sought by that country…” [Kainhofer (No 1)  at 360]

115               There is however a limitation in that a party who has not objected to the reception of material by the magistrate cannot make a complaint about that material before the Court – Zoeller at 292.  That case was said by Hill J, in Republic of South Africa v Dutton (1997) 77 FCR 128 at 134, to be authority for the proposition that “…in a review the court will not consider points not taken before the magistrate”.  In my respectful view, what was said in Zoeller goes only to the scope of the material before the Court on a review.  It does not address the question whether it is open to a party on a review hearing to raise new points of law with no evidentiary implications.  In my view it is open to a party to do so.  In Dutton, consistently with Zoeller, the accused person was bound, upon the review, by an election not to put material before the magistrate going to an extradition objection.  That election was based upon the magistrate’s ruling as to the inadmissibility of material tendered by the requesting country and the insufficiency of the evidence to establish eligibility for surrender.  If the magistrate were found on review to be wrong and the material sufficient, the extradition objection could not then be raised.  I respectfully agree with the description given by Hill J of the review process at 136:

“From these matters it seems to me clear that the review contemplated by s 21 is not a species of judicial review in the sense of a review limited to correcting legal error.  It is a rehearing in which the court undertaking the review is authorised to reach its own conclusions on eligibility for surrender, but a rehearing which is limited statutorily to the material before the magistrate.  Fresh evidence it would seem would not be admissible.  This is hardly likely to cause difficulty since the hearing before the magistrate, the subject of the review, is, in any event, largely a hearing on documentary material.”

116                The limitation of the review to the materials before the magistrate raises the question what those materials are.  That is a matter which has already been canvassed in a ruling in the course of these proceedings – Cabal v United Mexican States (No 2) (2000) 172 ALR 743.  For convenience of reference I repeat the summary of propositions set out in that ruling at 751:

1.         The materials before the magistrate comprise the testimony, documents and things which were received by the magistrate in evidence and those which were tendered to the magistrate but not accepted in evidence.

2.         The Court upon review, is not limited to consideration of material received by the magistrate in evidence but may have regard to other material tendered to the magistrate but not received in evidence.

3.         In determining which of the materials before the magistrate it is to accept and take into account on the review, the Court will apply criteria of relevance, weight and fairness. It may reject material, whether accepted by the magistrate or not, on the grounds that it is irrelevant or that it is of little weight or that to receive it would unfairly prejudice a party to the review.

4.         In considering whether there are substantial grounds for believing that an extradition objection is made out for the purposes of s 19, neither the Court nor the magistrate is limited to evidence admissible, according to the rules of evidence, to demonstrate that the fact constituting the objection exists.

5.         It is not open to a party on review to rely for a particular purpose upon material tendered to the magistrate for another purpose.  

6.         A party on review is not limited to the points of law argued before the magistrate except to the extent that any new point of law would necessitate:

            (i)         reliance upon material not before the magistrate;

            (ii)        reliance upon material tendered to the magistrate for a purpose other than that for which it was tendered where it was tendered for a particular purpose.

7.         In relation to material proffered to but not accepted by the magistrate, the Court will hear submissions as to whether it should be considered as evidence in these proceedings.

8.         In relation to wide ranging or discursive or voluminous material the Court may, if it

accepts it, limit its consideration of such material to those elements to which it is directed by the parties.

By way of elaboration of the last observation, the Court is not required on review to read every page of the volumes of articles and other material which may have been put before the magistrate nor to traverse every word of the evidence at the s 19 hearing, which in this case occupied some sixty nine days.  The parties will define the issues they want to raise and the Court can be directed to those matters of real significance to the question of eligibility for surrender.  It can have regard also, as in this case, to facts and issues not in dispute as well as to referenced summaries of the testimony provided by counsel.

117               What was said, in Brandy, of the invalid review process in the Racial Discrimination Act 1975 is also applicable to the present case save that the review process under the Extradition Act does not allow for new evidence:

“In exercising its jurisdiction to review a determination by the Commission, the starting point is the existence of a determination and the evidence given to the Commission in the inquiry which led to the making of the determination.  The Federal Court must start with this material; indeed, unless the Court gives leave to adduce new evidence, that will be the only material before the Court.  It is true that the Court is empowered to review all issues of fact and law.  That, we think, is a facultative provision; whether the Court does review all issues of fact and law will be a matter for it in the light of the arguments put to it.  Whether it is incumbent on a respondent to give grounds or the like for a review is something on which the Act is silent.  This may well be deliberate, in order to avoid argument that the review is by way of appeal.  At the same time, the Court does have the determination and the evidence before the Commission and it is clear that the Court must have regard to that material.” (at 262 per Mason CJ, Brennan and Toohey JJ)

 

The review process was there held to be invalid because the Commission’s determination under review was to be registered and able to be enforced as if it were an order of the Federal Court.  That involved an impermissible exercise of judicial power by the Commission.  That deficiency however does not detract from the observation quoted about the way in which the legislation contemplated that the review process was to be carried out.  And, given their analogous structures, that, in my respectful opinion, can be a guide to the exercise of the review process under the Extradition Act.  Unlike the Brandy case no difficulty arises by virtue of the nature of the proceedings before the magistrate and the magistrate’s decision as it is not in dispute that they are administrative and not judicial. 

118               The question that now falls for determination is whether the review process in the Federal Court involves the improper conferral of an administrative decision-making authority on the Court or an exercise of judicial power.   It was submitted for the applicants that the Court under s 21 is “standing in the shoes” of the magistrate and exercising an administrative power albeit with judicial trappings.  The power was said to be “quintessentially administrative”.   It was accepted that one of the criteria for characterising a power as administrative or judicial is the body to which it is entrusted:

“The exercise of a power which, when entrusted to a repository other than a court, might be characterized as administrative and non-judicial, may, when entrusted in an appropriate context to a court, be held to be an exercise of judicial power.” – Cominos v Cominos (1972) 127 CLR 588 at 606 (Mason J).

 

See also at 599 (Gibbs J) and 605 (Stephen J).

119               The transformation of a power from administrative to judicial according to its repository was exemplified in s 23 of the Trade Marks Act 1955 which provided that the High Court or the Registrar could, on application, order a trade mark to be removed from the register on grounds there specified – R v Quinn Ex parte Consolidated Foods Corporation (1977) 138 CLR 1.  The principal question in that case was whether the power conferred on the Registrar was administrative and was answered in the affirmative.  The question whether the same power exercised by the Court was judicial was also discussed.  Gibbs J observed at 6:

“The fact that the grant of the power is contained in one compendious section does not mean that the nature of the power must remain the same although the character of the functionary called on to exercise it is different.”

Legislative intention has a part to play in characterisation but is not conclusive.  Jacobs J, who wrote the principal judgment in Quinn, observed at 9:

“It is still necessary to determine whether the power is of a kind which is capable of being either judicial or administrative.”

This was relied upon by the applicants for the obvious proposition that a power can only change its character between  judicial and administrative repositories when it is capable of being both, that is to say an “innominate power” which must inhabit the borderland between administrative and judicial powers – Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 175-9 (Isaacs J).  Isaacs J however did not regard such “chameleon” functions as exotic species in a constitutional twilight zone.  As he said, the existence of such powers could not be denied without seriously affecting “the recognised working of representative government” (178).  See also R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1971) 123 CLR 361 at 373 (Kitto J).

120               The characteristics of a function necessary to attract the designation judicial, when it is exercised by a court, are not capable of exhaustive definition any more than is the concept of judicial power itself.  Elements such as the finding of facts and the making of value judgments and the formation of an opinion as to legal rights and obligations are common ingredients in the exercise of judicial power.  However, they may also appear in the exercise of administrative or legislative power – Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 189.  Classification may depend upon the way in which the function is to be carried out.  If policy considerations as well as application of legal principles to established facts determine the decision “then the determination does not proceed from an exercise of judicial power” – Precision Data Holdings  at 189, citing R v Davison (1954) 90 CLR 353 at 366-367 (Dixon CJ and McTiernan J).

121               In review proceedings under s 21 of the Extradition Act the Court is required in effect to determine whether the requested person is eligible for surrender and whether, according to that determination, the magistrate’s decision should be confirmed or quashed.  In so doing it finds, on the basis of materials that were before the magistrate, facts relevant to whether the necessary conditions of eligibility for surrender set out in s 19(2) have been established.  In concluding the question of eligibility it will apply those criteria which involve legal principles set out in the Act.  There is no policy determination involved.  In its essential aspects the function of the Court under s 21 answers the requirements necessary for characterisation as judicial.

122               But the applicants rely upon other features of that function to stamp it as “quintessentially administrative”.  They contend that the determination of eligibility does not decide rights and obligations.  The Minister has the ultimate discretion under s 22 as to whether or not to surrender the person whose eligibility has been established.  The magistrate’s decision, it is said, is a step along the way in an administrative process.  Deciding whether or not a factum exists on which a power depends is not an exercise of judicial power.  In my opinion however, when reposed in a court, the function of determining eligibility for surrender is not merely finding a factum upon which the power of another to make a decision depends.  It is a determination of legal status reached upon the application of legal principles to established facts.  Under s 21 it leads to an order either confirming or quashing the magistrate's decision.   This is a final and operative order upon the question of liability to surrender. That a finding of eligibility for surrender enlivens the Ministerial discretion to decide whether to surrender  the accused does not alter the nature of the court’s decision under s 21.  That decision, it should be emphasised, is in no sense recommendatory.  It is final and binding so far as it goes.  The fact that the Minister may decide not to surrender a person found eligible for surrender no more deprives the review function of its judicial character than does an executive decision to waive a debt found in judicial proceedings to be owing to the Commonwealth, or not to seek recovery of costs or to release a prisoner on parole before the expiry of a sentence imposed on the prisoner by a court. 

123               Another aspect of the review function is its confinement to the material before the magistrate.  That restriction, however, is procedural:

“The procedure which determines the mode of appeal does not affect the nature of the appeal itself.”  - Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 107 (Dixon J)

 

Original federal jurisdiction may be conferred for the review of an administrative decision on terms which prevent the Court from calling into question the findings of fact of the decision-maker and limit the grounds upon which the decision may otherwise be reviewed – Abebe v The Commonwealth at 17 (Gleeson CJ and McHugh J), 61 (Kirby J), 75 (Callinan J).  A fortiori a Federal Court may validly be given jurisdiction to review findings of fact and law of an administrative decision-maker albeit it is confined to the materials which were before that person.  Moreover, s 21 does not exhaust the jurisdiction of the Court in relation to decisions made by magistrates under s 19.  It is true that all decisions under the Extradition Act are excluded from the application of the Administrative Decisions (Judicial Review) Act 1975 (Cth) by s 3 and Schedule 1 of that Act read together.  And there is a question, as yet unresolved, whether the magistrate exercising the function conferred by s 19 is an “officer of the Commonwealth” for the purpose of judicial review by the High Court under s 75(v) of the Constitution or this Court under s 39B(1) of the Judiciary Act 1903 – Trimbole v Dugan (1984) 3 FCR 324 at 327-328 (Woodward J); Director of Public Prosecutions v Kainhofer (1995) 185 CLR 528 at 538-539 (Brennan CJ, Dawson and McHugh JJ), cf 541 (Toohey J) and see the discussion by Burchett J in Dutton v Republic of South Africa (1999) 84 FCR 291 at 302-303.  As his Honour said in the latter case at 302:

“In practice, the doubt whether the decision of a magistrate under s 12 can be reviewed as that of “an officer of the Commonwealth” is unlikely to matter.  The Attorney-General’s decision under s 16, or later under s 22, is certainly so amenable to review.  And if s 39B(1) of the Judiciary Act is not effective to confer jurisdiction in respect of the decision of the magistrate, since 17 April 1997 (when s 39B(1A) was enacted), this court has had original “jurisdiction in any matter…arising under laws made by the Parliament”.”

124               In my opinion the function conferred upon the Court by s 21 of the Extradition Act is an exercise of the judicial power and is validly conferred.  I am fortified in that conclusion by the apparent assumption of the High Court in DPP v Kainhofer that the section involves the exercise of judicial power, albeit that question was not in issue in that appeal.  That too was the assumption of the Full Court in Kainhofer v DPP (No 2).  And in Todhunter the Full Court referred to the “judicial power” as having been “first enlivened in the proceedings before the primary judge” (80). 

125               For the preceding reasons the challenge to the constitutional validity of s 21 fails.

Approach to Construction and Application of the Extradition Act

126               The Extradition Act is municipal legislation giving effect to obligations under a  number of international agreements with a common subject matter.  The international agreements to which it gives effect are extradition agreements which may be bilateral or multilateral.  They vary in their content and their antiquity although treaties and arrangements negotiated since May 1985 have been based upon a common model treaty.  The Act provides a  template for giving effect to Australia’s obligations under such treaties.  But the template is capable of modification in detail from one treaty to another by virtue of s 11.  The Extradition (United Mexican States) Regulations 1991 provide, in Regulation 5, that “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 construction of the Act is therefore subject to the direct modifications effected by the Regulations.  Those modifications apply to the Act the “limitations, conditions, exceptions, or qualifications” necessary to give effect to the treaty. 

127               There is a general principle of the common law that legislation will be construed, so far as is possible, in accordance with the provisions of international agreements to which it gives effect – Queensland v Commonwealth (1989) 167 CLR 232 at 238-240; Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 204; Yager v R (1977) 139 CLR 28 at 43-44; Polites v Commonwealth (1945) 70 CLR 60 at 69.  It is perhaps difficult to talk of construing one domestic statute consistently with a number of treaties to which it seeks to give effect.  There are, however, common features of many such treaties which it may be assumed parliament has sought to reflect in the processes for which the Act provides.  At the very least the principles governing the construction of the Act should be consistent with those governing the interpretation of the treaties.  It is the role of such principles in the construction of the Act that must now be considered. 

128               As the Full Federal Court said in Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority (1995) 56 FCR 406 at 421, “…an important consideration in examining legislation intended to implement international agreements is to give weight to the construction which the international community would attribute to the relevant instrument or concept”.  In this regard, Article 31(1) of the Vienna Convention on the Law of Treaties requires that:

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

The common law itself requires treaties to be construed “unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation” – James Buchanan & Co Ltd v Babco Forwarding & Shipping (UK) Ltd [1978] AC 141 at 152; The Shipping Corporation of India Ltd v Gamlen Chemical Co (A/Asia) Pty Ltd (1980) 147 CLR 142 at 159; Fothergill v Monarch Airlines Ltd [1981] AC 251 at 293-294.  Extradition treaties fall to be construed by the same “somewhat amorphous rules of international law” – Riley v Commonwealth (1985) 159 CLR 1 at 15 (Deane J).  Given that legislation is to be construed, so far as possible, in accordance with the provisions of international agreements to which it gives effect, the question arises whether the same modes of construction as apply to treaties are to be applied to the domestic statute.  It is a logical  consequence of the general rule of construction that that should be so – Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 305 (Gummow J) and 335 (Einfeld J), and see generally Pearce and Geddes, Statutory Interpretation in Australia, 4^th Edition, Butterworths (1996) at 2.23.  In this case it is a stated principal object of the Act to enable Australia to carry out its obligations under extradition treaties (s 3(c)).  The difficulty is that there is a multiplicity of treaties, their variability in detail in some cases, evidenced by the provisions of s 11 relating to the power to make regulations modifying the operation of the Act in relation to certain countries.  This does not detract from but rather reinforces the proposition that the rule of construction according to the ordinary language of the statute rather than narrow technical meanings tied to local rules of law is applicable.  This is generally compatible with s 15AA of the Acts Interpretation Act which mandates preference to constructions that “would promote the purpose or object underlying the Act” over those that would not.  In this context the permitted use of treaties or international agreements to ascertain the meaning of legislation, effected by s 15AB is almost superfluous – see footnote (93) in Applicant A v Minister for Immigration and Ethnic Affairs (1998) 190 CLR 225 at 253 (McHugh J).

129               Extradition treaties are concerned with the repatriation of fugitives from the justice of the requesting country.  They involve deprivation of the liberty and associated disruption of the lives of the requested persons.  Absent statutory authority there can be no interference with that liberty.  When statutory authority is given, such interference can be effected only in accordance with the terms and conditions of that grant – Riley at 15 (Deane J); Re Bolton Ex parte Beane (1987) 162 CLR 514 at 522 (Brennan J) and 528-529 (Deane J); R v Horseferry Road Magistrates’ Court; Ex parte Bennett [1994] 1 AC 42.  As Lord Griffiths said in the latter case, at 62:

“Extradition procedures are designed not only to ensure that criminals are returned from one country to another but also to protect the rights of those who are accused of crimes by the requesting country.”

So in Schlieske v Federal Republic of Germany (1987) 14 FCR 424 at 431, the Full Court, dealing with an application under the Extradition (Foreign States) Act 1966, observed that:

“Against the background of the common law’s watchful concern for liberty and the internationally accepted and almost universal understanding of the working of extradition legislation in common law countries, and indeed elsewhere, it would require clear words to relieve the magistrate of the duty of considering for himself or herself whether, upon the whole of the provisions of the Act as modified by the regulations, and in the circumstances proved, the appellant is liable to be surrendered.  It is one thing to reduce the requirements for liability to surrender; as, for example, by eliminating in both the Act and in any relevant regulations the need for proof of guilt.  It is another thing altogether to say that the courts are excluded from the question whether there has been a satisfaction by the applicant for extradition of such requirements as remain.”

The satisfaction of remaining requirements could not be met by application of the common law rule presuming the regularity of official acts:

“There is no room for presumptions in favour of the executive where the liberty of the subject is concerned.” (432)

Strict compliance with the formalities required by parliament is essential – Prabowo v Republic of Indonesia (1995) 61 FCR 258 at 270-271 (Hill J); De Bruyn v Republic of South Africa (1999) 96 FCR 290 at 295-296 (Gyles J); Timar v Republic of Hungry [1999] FCA 1518 at par 62 (Weinberg J). 

130               The preceding citations deal with the application of the Act rather than its construction.  It may be said, consistently with those views and the subject matter of the Act that it requires a “strict construction”.  This raises the question whether that is required and if so, what it means.  In the context of penal statutes it reflects nothing more than a requirement that “…a court should be specially careful, in the view of the consequences on both sides to ascertain and enforce the actual commands of the legislature, not weakening them in favour of private persons to the detriment of the public welfare, nor enlarging them as against the individuals to whom they are directed” – Scott v Cawsey (1907) 5 CLR 132 at 134 (Isaacs J).  If there is ambiguity in the language of a penal statute it may be resolved in favour of the subject.  That rule is described in the context of such statutes as “perhaps one of last resort” – Beckwith v R (1976) 12 ALR 333 at 339 (Gibbs J).  See generally the discussion of these and other cases on this issue in Pearce and Geddes at 9.7.

131               There is a tension between, on the one hand, the “broad principles of general acceptation” which govern the interpretation of treaties and, necessarily inform statutes giving effect to their terms and, on the other hand, the seriousness with which common law courts approach the construction of statutes affecting the liberty of the individual.  In Government of Belgium v Postlethwaite [1988] 1 AC 924 at 947, Lord Bridge identified the purpose of extradition treaties as “…bringing to justice those who are guilty of grave crimes committed in either of the contracting States” and observed that application to such treaties of “the strict canons appropriate to the construction of domestic legislation would often tend to defeat rather than to serve this purpose” – cf Cheng v Governor of Pentonville Prison [1973] AC 931 at 955 and Government of Canada v Aronson [1990] 1 AC 579 at 590.  And see Aughterson, Extradition – Australian Law and Procedure, Law Book Co, 1995 pp 20-24.

132               In my opinion the Extradition Act is to be construed consistently with the approach to the construction of the treaties to which it gives effect.  This requires an approach based on the ordinary meaning of the words of the Act and its context and purpose.  Such principles may not yield a narrowly defined meaning – Applicant A  at 275 (Gummow J).  Any remaining ambiguity or doubt, whether of meaning or application, should be resolved in favour of the liberty of the individual.  A narrow technical approach, and the application of interpretations based on technical rules of the local law, is not appropriate. As is reflected in its partly ambulatory character, extradition legislation must be construed “…in a fashion apt to accommodate criminal procedure of extradition countries which operates in a different fashion to that generally applicable in common law jurisdictions…” – Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 559-560 (Gummow J).

133               Questions of construction apart, there is also the issue of how the statute is to be applied in particular cases.  I have already referred to passages from the judgments in Prabowo, De Bruyn and Timar which exhort a strict approach to compliance with the formalities required by the Act.  In this case an important question of application arises in relation  to the sufficiency of supporting documents required to be produced to the magistrate under s 19.  Again, there is a tension between the need to ensure that the individual’s liberty is not to be affected except by statutory authority and in accordance with its terms and conditions and the need to avoid permitting the legislation to become a minefield of technicalities which defeat its purpose. Compliance with documentary requirements is a matter of “practical judgment and assessment not for overzealousness in discerning deficiencies” – Wiest at 519 (Gummow J) citing also Zoeller v Federal Republic of Germany (1988) 19 FCR 64 at 79 (Sheppard J).  In Timar,  Weinberg J recognised “…that documents emanating from countries with which Australia has extradition arrangements will often be drafted in language and style which is very different from our own and perhaps less than perfect from our perspective”. Such documents were, in his Honour’s opinion, to be read “fairly and not perversely” (par 63).  His Honour went on to say at par 64:

“It is not the case that every conceivable doubt or possible ambiguity of fact or law, no matter how inconsequential, must be resolved against the party seeking extradition.”

134               The Court, giving effect to the terms of the Act and the Treaty, and proper respect to the liberty of the individual, will look to questions of substance rather than form – Harris v Attorney-General (Cwth) (1994) 52 FCR 386 at 401.  Such criteria may be seen as involving value judgments.  No doubt they do. The ultimate principle governing the Court’s approach remains – the requested person must go free unless it can be shown, in accordance with the requirements of the Extradition Act properly construed, that the person is eligible for surrender.  The same values inform that approach as inform an approach described by the use of such terms as “strict construction”.

Production of the Supporting Documents

135               It is convenient now to refer to the factual aspects of the production of the supporting documents to the magistrate in the s 19 proceedings.

136               The documents in support of each of the three requests were received from Mexico at the Mexican Embassy in Canberra.  The bundle relating to the first extradition request against Cabal comprised the thirteen documents said by Mexico to be warrants for the purposes of s 19.  They were in the Spanish language.  Also in the bundle were the statements relied upon as statements of the offences and penalty and statements of the conduct required under s 19(3)(c).  The statements in support of each request were contained in the one document, albeit they were distinct elements of that document.  What were said to be translations of all of these documents were also included in the bundle, albeit they were not authenticated by any signature or certification complying with s 19(7)(a) of the Act.  The two bundles relating to the second Cabal extradition request and the Pasini extradition request followed the same general format.

137               When the first bundle arrived at the Mexican Embassy it was dealt with by Rudolfo Dela Guardia Garcia (Dela Guardia).  He is a legal officer with the office of the Attorney-General of Mexico and was, at the relevant times, a legal attache with the Embassy.  That is a diplomatic position.  Dela Guardia’s native language is Spanish, however he does speak English reasonably well.  He was assisted in the proceedings before the magistrate by a qualified interpreter and translator, Lilliana Evans.  She was sworn in as an interpreter and explained her qualifications which were not challenged.  From time to time Dela Guardia gave his testimony in Spanish and it was translated by the interpreter. 

138               When the first bundle of documents arrived at the Embassy he arranged a seal, the silver seal of the Embassy, which he attached to the entire bundle with a ribbon which passed through and bound all the documents.  The seal bore words in Spanish which translated as “Mexican Embassy Canberra Australia”.  Dela Guardia read these words in Spanish and they were translated by the interpreter (T337).

139               Dela Guardia identified various documents in the first bundle.  He described the first purported warrant as “…a warrant of arrest, Mexican warrant of arrest issue and a special proceeding”. (T145)  He explained that although he had not prepared the warrant he was familiar with such documents having been a prosecutor in Mexico since 1992 and having seen a number of them.  He referred to two seals on the pages of the warrant.  The first was a seal printed on each page of the court paper as official paper used by the District Judges in Mexico.  The second was a seal stamped by a clerk whom he described as “…the judicial authority in charge of that special work in the Third District of Mexico and all the Judges in Mexico”.

140               The original bundle of documents relating to the first request was tendered as exhibit 6. Copies of various parts of the document were also tendered separately.  Thus the document comprising the statement of offences and penalty and the statement of conduct was tendered as exhibit 7 and the first warrant as exhibit 8.  Exhibit 9 was a statement of minimum wages payable in Mexico relating to various periods from 1 January 1993 to 1998.  The minimum wage forms a basis for the calculation of monetary penalties which could be imposed in respect of the offences alleged against the applicants.  A document authenticating the warrants, signed by the Clerk of the Criminal Section and District Judges for the Seventh Court, was tendered as exhibit 10.  The text of relevant provisions of Mexican Law (exhibit 11) and a purported translation of the first warrant were also tendered (exhibit 12).  The latter document was tendered not on the basis that it was a correct translation of the warrant, but rather that Dela Guardia regarded it as a translation.  A translation of what was described as “legal disposition” was tendered as exhibit 13.  The same process was followed in relation to the second bundle, the original being exhibit 73 and copies of its various components being separately tendered including purported translations, albeit they were tendered subsequently as exhibit 126.  Exhibit 105 was the bundle of documents relating to the Pasini request and a like process was followed.  The second and third bundles were each bound up with ribbon and the silver seal of the Embassy as was the first bundle.

141               Dela Guardia was also asked to look at the first “warrant”.  He identified its date of issue, the judge who issued it and the provisions of Mexican law specified as giving rise to the offences to which the warrant was said to relate (T345).  He identified a certificate by the Clerk of the Court and a seal.  His reading of the seal was translated by the interpreter as “Seventh District Court in Personal Matters, United States of Mexico, Penal Section”.  He identified a certificate on the warrant as signed by a clerk whom he named.  He read the certificate in Spanish and the interpreter translated it.  Later, the interpreter prepared a translation of the certificate on her own account which was tendered through her.  Seals and certificates in relation to all three bundles of documents and all the other warrants and statements were the subject of similar testimony by Dela Guardia some of which is referred to in more detail in relation to specific documents.

Nature of the Purported Warrants

142               Section 19(2)(a) of the Extradition Act conditions eligibility for surrender, in relation to an extradition offence, upon the production to the Magistrate of “the supporting documents in relation to the offence”.  The supporting documents, as defined in s 19(3)(a) include “a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant”.  It is asserted in the statement of claim that the purported warrants produced to the magistrate were “mere orders for apprehension or parts of the files of judicial investigation”, which under Mexican law precede the issue of the warrant “for the arrest of the person” within the meaning of s 19(3)(c) and do not themselves authorise the arrest of the applicants.

143               It was submitted that, under Mexican law, there is a three stage process necessary to authorise an arrest.  That process was said to involve a determination by a judge that the elements of the offence and probable liability are established, a written communication of that determination to the Public Ministry and, finally, the issue by the Public Ministry of a written authority to the police to enable arrest.  The evidence was said to support the submission that the documents produced are not warrants for arrest as they do not include the third element and in most instances do not include the second element.  The evidence relied upon was that of Marco Antonio Del Toro Carazo (Del Toro) and Jose Luis Izunza Espinosa (Izunza).  Before turning to their testimony however it is necessary to consider what the Act requires.  In that regard, the applicants contended that the characterisation of a document as a warrant is a mixed question of fact and law ultimately to be treated as a question of Australian law to be applied to findings of fact about the relevant foreign law.  I accept this submission in so far as it implies that there is one construction of the term “warrant” in s 19(3)(a) applicable to the variety of extradition countries that might make requests under the Act.  That approach is compatible with the view I have already expressed that, consistently with the international obligations to which it gives effect, the Act is to be construed in its ordinary meaning according to broad generally accepted principles.  On that basis it is necessary to look to the ordinary meaning of the word “warrant” when used in the context of a warrant for the arrest of a person for an offence. 

144               The Shorter Oxford English Dictionary defines “warrant” in the documentary sense in the following ways relevant for present purposes:

“8.  A document issued by a monarch, an officer of State, or an administrative body, authorizing a particular action.

9.  A writ or order issued by some authority, empowering a police or other officer to make an arrest, search premises, or carry out some other action relating to the administration of justice.”

Definitions from various legal dictionaries which were relied upon do not add anything to that ordinary meaning.  It is that meaning which is to be applied in the Extradition Act and not a technical meaning based on any particular legal regime. 

145               In my opinion therefore, an order empowering a public officer to take a person into custody for an extraditable offence is sufficient for present purposes.  The form and content of the order that constitutes a warrant for the purposes of s 19(3)(a) may vary from country to country and the Act must be construed to allow for such variation.  It is not necessary that the document in question comply with the procedural and content requirements of the criminal laws of the States or the Commonwealth of Australia or analogues thereof – Ichiyo Ujiie v Republic of Singapore (unrep Fed Court 18/10/95 Wilcox J).  Nor is it necessary to characterisation as a warrant that other steps are required to implement the order or to execute it under the municipal law of the requesting State.  Neither the magistrate nor this Court upon review is obliged to inquire into the procedural requirements of the laws of Mexico associated with the issue of such documents.  The magistrate and this Court may be satisfied upon appropriate evidence, that by reason of its source, authorship, legal nature and the relationship of its contents to those of other supporting documents, the document in question is a warrant for the purposes of s 19(3)(a). 

146               In the present case each of the supporting documents said to be a warrant was produced with other supporting documents to the magistrate by Dela Guardia.  He identified the warrants in his evidence-in-chief and for various of the warrants identified its date, the issuing judge and court and provisions of Mexican law to which it related and which were said to have been breached.  He was able to identify the documents as warrants because as a former prosecutor he had seen many such documents before.   In cross-examination it was put to him that the documents referred to as orders for apprehension issued by the various District Judges against Cabal and Pasini were of themselves insufficient to authorise their arrest.  By way of example the first warrant issued against Cabal begins with a recital of the application for a warrant whereby the Judge is notified by a document issued by the Federal Public Prosecutor together with enclosures “consisting of the original and duplicate of the pre-trial investigation”. There is a lengthy recital of factual material put before the Judge.  The conclusion of the warrant was translated by an interpreter from the answers given in cross examination by the applicants’ witness, Izunza, who was taken through a similar exercise in respect of each of the warrants.  The translation, from his testimony, of the text of the first Cabal warrant under the heading “Resuelve”,  indicating the judge’s resolution or decision, was as follows:

            “FIRST It is in accordance with law, and a warrant of apprehension is issued against CARLOS CABAL-PENICHE, RAFAEL MIRAFUENTES MAGDALENO, MARCOS M. MENDOZA MARISCAL, JOSE RIVAS ALMARAZ, CARLOS HEFTYE MORALES, ALBERTO DIAZ GARCIA, RICARDO ARMAS ARROYO, RAUL ZEPEDA GONZALEZ, MANUEL ECHAVE MIRANDA, EDUARDO HERNANDEZ TORRES y HECTOR GOMEZ LOPEZ, as having probable responsibility in the commission of the offences established and penalized in accordance with s 112(5)(d), s 113(1) and s 114 of the Credit Institutions Act.

            SECOND, in accordance with the provisions of s 195 of the Federal Code of Criminal Procedures may an authorised copy of this decision be sent to the Federal Public Ministry in order that it execute this warrant and make to appear before the Grille of Practice of this Court on a working day and within working hours that it make the corresponding accused appear in that place.

            THIRD, while this warrant is being complied with may the orders be passed over to the provisional with a status of suspended.

BE IT NOTIFIED ONLY AND EXCLUSIVELY TO THE ATTACHED AGENT OF THE FEDERAL PUBLIC MINISTRY, thus it has been resolved by and thus does sign the Citizen Graduate Ricardo Ojedo Bohorquez, Seventh District Judge in Criminal Matters in the Federal District before the Citizen Clerk who authorises and attests.” (T3798-3801)

           

147               Izunza explained the reference to the Grille of the court which has also been variously translated as “window” or “bars”.  Some courts in Mexico are connected to remand centres by means of tunnels. Those held in custody in the remand prison go to the court through a tunnel which leads to a Grille in the form of a window at which the person under arrest attends a substantive hearing or related procedural hearing (T3805-6).  Izunza also read out the resolutive parts of all warrants supporting the first and second request against Cabal and the two warrants supporting the request against Pasini.  His reading was translated by the interpreter from his oral testimony.

148               Dela Guardia agreed in cross-examination that the final orders in the documents direct agents of the Federal Public Prosecutor's office that there is a warrant of apprehension and that they can proceed with the arrest.  The notification at the end of the document however was not part of the apprehension order.  He said:

“…the apprehension warrant in itself is a document and the notification file, the communication between the judge and the Public Ministry is an official communication but it’s not the apprehension warrant.”

Asked about the notification document and whether that was needed to effect an arrest, he said:

“What is required is the apprehension warrant.  The Public Ministry or the Judiciary or Police may in that case keep that communication file for their official file but the force to detain somebody is the apprehension warrant.” (T1089)

 

 

He denied the suggestion which was pressed upon him that the order notifying the Federal Public Prosecutor’s Office that they could effect an arrest was needed for that purpose as well.  He said:

“It is needed because it’s the communication between the judge and the public ministry but once the public ministry already has it, what is important is to have the arrest warrant in order to detain somebody.  If you’re going to arrest somebody with just one file he could not – he usually could not be arrested.  The file itself is not the order.”

149               Del Toro was called as an expert witness for the applicants on relevant areas of Mexican law.  He was presented as a person qualified academically in Mexican law, entitled to practice as a lawyer and who had taken post-graduate studies in various areas, albeit with no cognisable post-graduate qualification.  His qualification as an expert witness was the subject of substantial attack.  Cross-examination on that question alone occupied some eighty eight pages of transcript.  In the event her Worship ruled that she was satisfied that he had established the degree of training and experience capable of satisfying that required of expertise in Mexican law in the relevant areas.  The weight to be given to the evidence was left as a matter for determination having regard to answers given to questions on his qualifications (T3108).  It was not submitted for Mexico that I should take any contrary view on Del Toro’s threshold qualification to give opinion evidence.  His credibility, however, remained in issue.  It emerged in cross-examination that it had taken him some eleven years to obtain his full graduate qualifications, that he had been entitled to practice for only four years and that he had no recognised post-graduate qualification. 

150               Del Toro’s evidence referred to a three stage process associated with the issue of warrants which has been mentioned earlier (T3150, 3221).  A warrant he said is not “complete under Mexican law and not valid unless each of those components is present” (T3397).  But asked by her Worship what are the actual pieces of paper required for arrest he said:

“What the police must have is what was sent to the police by the Public Ministry. … That is to say what it has or it should have in a material sense is the transcription issued by the Public Ministry which it in turn received from the judge with the order.” (T3635)

151               The applicants also relied upon the evidence of Izunza.  His qualifications were not challenged by Mexico.  He practices and teaches criminal law in that country.  He is a member of the Mexican Bar of Lawyers and is Co-ordinator of its Penal Law Commission. His evidence-in-chief, going to the critical issue of characterisation, is conveniently summarised in the applicants’ submissions.  He distinguished an order for apprehension from a warrant of arrest and asserted that a person could not be arrested on the basis of the supporting documents which Mexico characterised as warrants.  A separate written direction from the Public Ministry was required.  He was asked whether arrests could be made with the “warrants” produced as supporting documents with the requests and said:

“The judicial police which execute a warrant of apprehension would need to have, apart from this document or apart from the fact that this document should exist, an instruction in order to execute the warrant, and that instruction must be in writing in accordance with the third section, last paragraph of the Federal Code of Criminal Procedure.” (T3783)

 

He also said that:

“even though a warrant should emanate from a judge the body that must directly order the execution is the Public Ministry because the Judicial Police depends on that, on the Public Ministry and it is not possible to violate the Constitution.” (T3880)

 

Asked by counsel for Mexico whether there needed to be an extra communication from the judge to the agent of the Public Ministry and whether it was altogether a separate document, Izunza replied:

“Yes, just as with the order that the Judicial Police receives from the Public Ministry, once the latter has received written communication from the judge with regard to that warrant.(T3852)

 

Izunza asserted that none of the purported warrants accompanying the extradition requests were warrants for arrest (T3783-3797).  Reference was made in the submissions to the Tenth Cabal “Warrant” supporting the first extradition request where it is stated in the document that “the Attorney should issue orders to whom it may concern in order for the Police to effect the capture” (T3789).

152               In addition it was submitted for the applicants that the true nature of the warrants produced as purported warrants was further evidenced from the certifications of the warrant by an officer designated as The President of the Judiciary Council. The President’s letter relating to the second Pasini “warrant” identified it as “the evidence present in the file of the judicial investigation”.  The term “warrant” was not used in those letters nor in any other of the President’s letters produced.  The terms “criminal file” or “index” were used as alternatives to “judicial” or “auxiliary investigation”.

153               Mexico made submissions critical of Izunza’s credibility, arguing that his interpretation of the relevant sections of the Federal Criminal Procedures Code was offered from the perspective of a defence lawyer and part-time academic.  He was not able to refer to any relevant decision, thesis or jurisprudence on the subject to sustain his contention.  His explanation that he had not had time to research the matter in light of the fact that he had provided his first proof of evidence some two months previously, was incredible.  In my opinion it is not necessary to explore the question of Izunza’s credit.  Having regard to the approach that I take to the characterisation of a document as a “warrant” for the purposes of the Extradition Act, the orders of apprehension signed by the various judges and submitted with the requests for extradition answer that description according to its ordinary meaning.  The fact that there may be additional steps of a procedural kind necessary to give effect to them, does not deprive them of that character.  See also Bennett v Government of United Kingdom [200] FCA 916 at par 25, where Katz J held that the formal validity of the foreign warrant is not a matter for the magistrate under s 19.  The question of formal validity and the question of characterisation of a document as a warrant may of course overlap.  Having regard to the evidence of both the applicants’ and the respondents’ witnesses I am satisfied that the documents purporting to be warrants produced in support of the three requests were warrants for the purposes of the Act.  The ground of review set out in par 27 of the amended application therefore fails.

Translation – The Requirements of the Act

154               As the grounds of review relating to authentication and translation of supporting documents interact to some extent, it is convenient now to deal generally with the legal issues relating to translation of documents produced to the magistrate in a s 19 proceeding.

155               The modifications of the Act effected by the regulations relating to the Extradition Treaty between Australia and Mexico, do not extend to requiring a magistrate to be satisfied of any matter other than those in s 19(2) in determining eligibility for surrender.  In particular, the magistrate does not have to be satisfied that the supporting documents referred to in s 19(3) and produced to him or her are accompanied by a translation.  As Weinberg J observed in Timar:

“It is no part of the task of a magistrate hearing an application pursuant to s 19 of the Act to determine whether the requesting State has met an obligation imposed under a treaty in relation to documents required to accompany a request for extradition.” (at par 82)

In so concluding I have regard to s 19(2)(b) which requires that where the Act applies subject to “limitations, conditions, exceptions or qualifications that require the production to the magistrate of any other document – those documents have been produced to the magistrate”.  The section contemplates that a treaty requirement for the production of a document may fall within the categories of modification to which the treaty regulations may give effect.  But in this case the treaty, while requiring that the documents sent with the extradition request be accompanied by a translation, does not require production of the translation to the magistrate.  On a similar point, the Full Court in the recent judgment in Timar v Republic of Hungry [2000] FCA 755, delivered on 7 June 2000, said at par 19:

“Section 19(2)(b) is limited to documents that a treaty requires to be produced to the magistrate.”

156               A similar provision in Article 19 of the Extradition Treaty between Australia and the Republic of Austria was described by the Full Court in Kainhofer v Director of Public Prosecutions (No 1) (1994) 52 FCR 341 as:

“…no more that a facultative provision designed to assist in facilitating the consideration by the requested State of any request for extradition made to it by the requesting State.” (353)

The Court held that Article 19 did not provide a relevant limitation, condition, exception or qualification for the purposes of s 11 and the Treaty Regulations.  The later Full Court in Kainhofer v Director of Public Prosecutions (No 2) (1996) 70 FCR 184 agreed with this view (189).  See also discussion of the analogous problem of a treaty requirement to provide “all available information” in Federal Republic of Germany v Parker (1998) 84 FCR 323 at 342-343. 

157               That is not to say that the magistrate can act upon untranslated documents in a foreign language.  The question here is whether and to what extent translation of the supporting documents is necessary in s 19 proceedings.  As a general proposition, if a particular document is authenticated in accordance with s 19(7) it is admissible.  And that principle applies “regardless of the identity of the language in which the document is written” – Haddad v Larcombe (1989) 42 A Crim R 139 at 140 (Wilcox J).  But as his Honour held in that case, a purported authenticating document which was a certificate in the German language, could not be relied upon to determine whether the requirements of authentication had been met.  Zoeller added to that general proposition:

“While a document duly authenticated under s 19(7) is admissible in evidence it can only be acted upon if it is understood.” (290)

Underlying and providing context for that statement was the subsequent proposition that for a tribunal to act upon its own understanding of a foreign language, uncommunicated to the parties, would be a breach of natural justice.  A Full Court differently constituted subsequently considered an appeal from the judgment of Wilcox J in Haddad.  Their Honours pointed out that what the Full Court in Zoeller had to say about the necessity for translation of documents to be placed before the Court did not have to do with authenticating documents but was directed to the substantive documents and was obiter – Federal Republic of Germany v Haddad (1990) 21 FCR 496 at 498.  Their Honours accepted however that the principles enunciated in Zoeller applied to authenticating documents.  Thus material placed before the Court to satisfy the requirements of s 19(7)(b) should not be received if written in a language other than English unless the English meaning is proved or admitted. (499)  The same principle was applied by Hill J to seals relied upon under s 19(7) in Prabowo.

158               The observation in Zoeller that a document can only be acted upon if it is understood requires consideration of the purpose for which the document is produced, how it is to be acted upon and, associated with that, the extent to which it must be understood.  Authenticating documents for which s 19(7) provides are defined by their content and understanding of their content is essential to the determination whether they meet the requirements of the subsection.  The same is true of the “statement in writing setting out a description of, and the penalty applicable in respect of, the offence” under s 19(3)(c)(i).  It is also true of the “statement in writing setting out the conduct constituting the offence” referred to in s 19(3)(c)(ii).  These statements must be understood by the Court.  That understanding may be effected by an authenticated translation or by evidence of their content otherwise proved.  This follows from their description in the Act which is by reference to their content.  It follows also from their function.  They are necessary to ensure that the offences in question are extradition offences and that the dual criminality principle embodied in s 19(2)(c) is satisfied.  In so saying, I accept that one to one correspondence between a document in a foreign language and its translation into English is an unattainable ideal.  The translation should be sufficiently clear and reliable to ground the kind of practical judgment and assessment of the content of the original that is necessary for the discharge of the functions required by s 19.

159               This leaves the question of warrants, which in this case do not serve any additional function under the Act as statements of offence or conduct.  They are defined, in the use of the word “warrant”, by their legal nature.  They are also defined in part by their content, but  only to the extent that the warrant must be a warrant issued in respect of “the offence” for which extradition is sought.  The legal nature of the warrant may be established, in my opinion, without the need to translate the document.  As already pointed out, there was before the magistrate in this case oral evidence, through the cross-examination of Izunza, of the content of the “resolutions” at the end of each warrant.  There was also evidence of their operation in Mexican law.  That was sufficient to establish their character as warrants.  What remains is the necessity to demonstrate that the warrants are issued in respect of the offences for which extradition is sought.  This may be done by translation of the relevant parts of the document.  It may also be derived from translations of the statements of offence or conduct which expressly relate the offences to the warrants.  Each of the statements of offence in this case, sets out in respect of each warrant to which it relates: the dates of issue, the issuing judge, the sections of Mexican law said to have been contravened and the facts constituting the offences for which the warrant was issued. This is not, as already noted, a case in which the warrants are relied upon as statements of the offences or conduct satisfying the requirements of s 19(3)(c).  It has been accepted in some cases that warrants or even indictments may fulfil the whole or part of those requirements – Zoeller at 289, McDade v The United Kingdom [1999] FCA 1868 at par 30; De Bruyn  at 294 and most recently the Full Court in Timar at par 12.

160               The applicants submitted that a full translation of the warrants should be provided as there might be material in them relevant to the extradition objections.  I accept that if a translation were tendered by the requesting country and disclosed material relevant to an extradition objection it could be taken into account by the magistrate in determining whether or not substantial grounds for an objection existed.  But the effect of s 19(2)(d) is that the requested person must “satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence”.  This statutory formula is quite different from that applicable in Prevato v Governor, Metropolitan Remand Centre (1986) 8 FCR 358 which was relied upon by the applicants.  By s 17 of the Extradition (Foreign States) Act 1966, which was there applicable, the magistrate was required to be satisfied, before making an order for committal, that the person was “liable to be surrendered”.  This meant, as Wilcox J held at 381, that in any case in which a claim was made of non-liability for surrender under s 13 of that Act, the magistrate had to be satisfied that the claim was unfounded and the person in law liable to be surrendered.  The objection raised in that case was that the offence was a political offence and his Honour held that “[t]he political character of the relevant alleged offence may appear from the evidence adduced to the magistrate on behalf of the Attorney-General”.  The statutory framework has changed.  Even so, his Honour’s observation under the old Act did not carry the corollary that all foreign language documents provided to the magistrate had to be translated in their entirety in case an extradition objection might be disclosed.  A fortiori there is no such general translation requirement under the present Act.  The Act does not require a full translation of the warrants and the ground raised by par 28 of the amended application fails.

161               Given that the translations of the supporting documents provided under the treaty with Mexico are not themselves supporting documents for the purposes of s 19, it is not essential that any translation relied upon be authenticated.  A translation may be proven by evidence from any person who has specialist qualifications as a translator.  Specialist qualifications may not be necessary if the person translating the document is shown to have an appropriate level of knowledge of the language in which the document is written and the language into which it is to be translated.  It is no doubt of assistance that in the case of legal documents such a person has a qualification in the law, at least of the country whose document is to be translated.

162               As in the present case, a witness may be asked to read and perhaps to explain certain aspects of a document in a foreign language.  If the witness gives evidence through a qualified interpreter, the English language interpretation of the content of the document is evidence of its content as is his translation of the witness’ explanations in answer to questions about the document.    There can therefore be no threshold objection to the magistrate, under s 19, or this Court on review, receiving and acting upon the warrants notwithstanding that they were only partially translated.  The ground of review raised under par 29 of the amended application therefore fails. 

163               By way of additional and alternative contention, it was asserted in par 30 of the amended application that the partial translations of the warrants relating to Cabal are of no legal effect as evidence in relation to them was led from a witness who was not qualified as a translator and in relation to whom the State of Mexico made it clear that he was not giving evidence as a translator.  So it was said Dela Guardia was not qualified as a translator and in the course of the s 19 hearing counsel for Mexico acknowledged that he was not giving evidence as a translator.  That does not mean that evidence he gave, in English, of the dates of issue of the warrants, the names of the judges issuing them and the provisions of Mexican laws to which they related could not be given and admitted by the court as was the case.  He was also able to and did identify the signatures of certifying officials and the offices they held.  Where the text of a document such as a seal or certificate was referred to typically Dela Guardia read its content in Spanish and what he read was then translated into English by the interpreter (eg T346).  A similar process was followed in the cross-examination of Izunza which brought into evidence translations of the resolutive portions of the warrants. In my opinion the objection raised by par 30 is not made out.  A related objection is raised by par 31 of the amended application in connection with the Pasini warrants.  It being said in that paragraph that there was no full translation in admissible form and no partial translation at all of them.  Dela Guardia gave evidence of their character as warrants (T316 and 322) and in relation to the signatures and certifications appearing on them. Izunza, in cross-examination, read out the resolutive portions of each of these warrants (T3867-3870 and T3871-3873).  His oral testimony of the resolutive portions of those two warrants was translated to the court by a qualified interpreter.  In any event, the statement of offences relating to the Pasini warrants, as with the other statements of offences, identified the warrants specifically, the offences and facts in respect of which each of them was issued.  The objection raised by par 31 of the amended application is not made out. 

164               Apart from the translated oral testimony of Spanish speaking witnesses who read from various documents, direct evidence was called from qualified translators on a number of matters.  Ms Evans prepared translations of a number of certificates and apostilles appearing on the warrants.  These translations were tendered in evidence.  Another translator, Antonio Florez, was called to verify the accuracy of parts of the translations which had been provided with the supporting documents.  This he did in relation to the statement of offence and penalty and the statement of conduct for the first Cabal request (T469-T527) and the second Cabal request (T527-569).  Ms April Edwards undertook a similar exercise with respect to the statements of offence and conduct under the Pasini request (T655).  Igor Trucco went through the various certificates and apostilles on the warrants and compared those with the translations provided with the requests presented by the Mexican government.  He produced handwritten charts identifying the page numbers on the Spanish language documents and the English language translations which he had compared (X179-182).  In doing so he complemented the evidence given by Ms Evans who had produced her own written translations of a number of the certificates.  He identified her translations on his charts but did not verify them.  He highlighted in yellow the entries on his charts corresponding to the rest of the translations which he did verify.

Authentication – The Requirements of the Act

165               Eligibility for surrender of a person to a country requesting extradition is conditioned upon the production to the magistrate of “the supporting documents in relation to the offence” (19(2)(a)).  The term “supporting documents” as defined in s 19(3) requires, for present purposes, a duly authenticated warrant and duly authenticated statements in writing, one setting out a description of and the penalty applicable in respect of the offence and the other setting out the conduct constituting the offence.  Due authentication, for present purposes, requires that the document to be authenticated:

(a)        purports to be signed or certified by a judge, magistrate or officer in or of the extradition country (s 19(7)(a); and

(b)        purports to be sealed with an official or public seal of the extradition country or of a Minister, Department of State or Department or officer of the Government, of the extradition country (s 19(7)(b)(i).

166               The definition of “supporting documents” by reference to “duly authenticated” warrants and statements would, on the face of it, appear to mandate due authentication of the supporting documents as a condition of their production to the magistrate.  That view, however, is not supported by the Full Court in Zoeller.  Their Honours saw “…no reason to find that s 19 constitutes a code of admissibility”.

167               Section 19(6) renders any document which is duly authenticated admissible in the proceedings. That is on the face of it a facultative provision.  To exclude the possibility that it might be seen as imposing a necessary condition for admissibility, s 19(8) provides that nothing in that subsection prevents the proof of any matter or the admission of any document in the proceedings in accordance with any other law of the Commonwealth or any law of a State or Territory.  The link between s 19(8) and 19(6) is clear.  The application of s 19(8) to supporting documents however is not so clear.  In my opinion nevertheless, Zoeller stands for the proposition that even supporting documents may be admitted in the proceeding before the magistrate otherwise than by the route of due authentication. 

168               The requirements of authorisation relevant for present purposes are “purported” signature or certification and “purported” sealing.  It is not necessary for the requesting country to prove to the magistrate that the signature or certification relied upon is that of a judge, magistrate or officer provided that appears on the face of the authenticating document.  Moreover, it is not part of the function of the magistrate or this Court on review, to look behind the certification process to any statutory requirements of the requesting country which govern certification of official or judicial documents.  It is not necessary to prove that the seal is an official seal of the kind specified provided that it appears on the face of it to be such a seal.  Nor is it necessary to look behind the seal to determine whether or not it complies with the law of the requesting country.  However before any certification or seal can purport to answer the description in s 19(7) it must be in the English language – see the discussion in the preceding section and the principles enunciated by successive Full Courts in Zoeller and Haddad and by Hill J in Prabowo. 

169               In determining what must be done to comply with authentication requirements, it is necessary to have regard to the ordinary meaning of the words and the purposes of authentication in its statutory context.  The key words in s 19(7) for present purposes are “sign”, “certify” and “seal”.  The relevant definitions in the Shorter Oxford English Dictionary are:

““sign”

4.  To attest or confirm by adding one’s signature; to affix one’s name to (a document, etc)”

““certify”

1.  To make (a thing) certain; to guarantee as certain; to give certain information of.

2.  To declare or attest by a formal or legal certificate 1461.

3. To make (a person) certain (of); to assure; to give (a person) legal or formal attestation (of) ME.”

““seal”

1.  To place a seal upon (a document) as evidence of genuineness, or as a mark of authoritative ratification or approval.”

And the noun “seal” relevantly is defined as:

“1.  A device impressed on a piece of wax or other plastic material adhering or attached to a document as evidence of authenticity or attestation; also, the piece of wax, etc. bearing this imprest device.”

I take the reference to a plastic material to refer to a material capable of bearing an impression.  Consistently with the approach to construction of the Act previously outlined, these terms do not attract any technical interpretation based on domestic rules of law.  They must of course be understood in light of the statutory purpose which is to “…ensure the genuineness of any documents placed before a magistrate under s 19” – Prabowo v Republic of Indonesia (1997) 74 FCR 599 at 603.

170               The meaning of the words “sign” and “certify” and their statutory purpose leads to certain conclusions relevant to this application.  First, the purported signature, if it is to be relied upon, must be placed on the document which it is sought to authenticate.  But the same is not true of certification.  A certificate may be endorsed upon the document in question.  It may also appear in a separate document provided that it identifies the document to be authenticated and attests its genuineness. There is no mandate for imposing a technical requirement not derived from the meaning of the word or the terms of the Act which would require a certificate to be endorsed upon or attached to the document to be certified.  No doubt as a practical matter that course is highly desirable for it then avoids debate about the relationship between particular certificates and the documents which they are said to attest.  There is an overlap between authentication by signing and by certification.  If a certificate is endorsed on the document to be authenticated and is itself signed by a judge, magistrate or officer in or of the extradition country, then the document itself purports to be so signed.  The Act does not require that an authenticating signature be applied only by the person issuing the document.  In most cases this will be academic.  However where, as in some instances in this case, a certificate is at least partly illegible but the purported signature and office of the person signing the certificate can be shown, then authentication may be achieved through that mechanism.  If the signature of the clerk of court on a document could authenticate it then the signature of the clerk on a certificate which appears on the document will itself be no less effective.

171               For a signature or certificate to constitute due authentication it must be done by “a judge, magistrate or officer in or of the extradition country” (s 19(7)(a).  The officer however need not be a judicial officer.  It may be an administrative officer provided that it is a class of officer appropriate to the circumstances – Prabowo at 267 (Hill J) and see the case cited by his Honour R v Bow Street Magistrates’ Court Ex parte Vandenholst (1986) 83 Cr App R 114 at 126.  Thus the clerk of the relevant court could sign or certify a warrant for the purpose of the Extradition Act.  Hill J commented that it would often be inappropriate for a judicial officer to sign or certify.  Where a matter has not reached the stage of conviction it is, as his Honour observes, difficult to see what reason there would be for requiring signature by a judicial officer as distinct from, for example, a senior police officer (267).

172               As to the sealing requirement, the question arises, in this case, whether one seal attached to a bundle of supporting documents can be regarded as sealing each of them for the purposes of s 19.  In the Extradition Act 1870 (Imp), applicable in Australia by reason of the Extradition Act 1933 (Cth), s 15 referred to authentication of foreign warrants and deposition by, inter alia, “…being sealed with the official seal of the minister of justice, or some other minister of state”.  In Ex parte Bennett; re Cunningham (1966) 68 SR(NSW) 15, the Court of Appeal observed, at 23:

“In the present case the requisite seal duly appears on the first or covering document of a bundle which are (sic) physically integrated and we think this is sufficient to satisfy the requirements of s 15… We consider it to be immaterial that the Attorney-General, when affixing the seal on the front certificate recited that he had caused the seal to be affixed in witness of his certificate relating to the appointment of a District Court Judge.  The fact is that the seal appears on one of the pages of an integrated bundle of documents which includes the warrant and this in our opinion is sufficient.”

The above passage was cited by Hill J in Prabowo but on the point relating to the category of “officer” who can sign the warrant.  In my opinion the sealing of supporting documents for the purposes of s 19(7) may be effected by a seal placed on the first page of the bundle provided that it is of such a nature and so placed that it relates to all of them and purports to seal all of them.  It may be that a seal stamped or printed on the first page of the first document might not, on the face of it, apply to all documents in the bundle.  However, in this case a silver seal was connected by a ribbon passing through all of the documents in the bundle and did thereby purport to seal them all.  This conclusion also accords with that reached by Katz J in Bennett v Government of the United Kingdom  at par 29.

173               A question remains as to how documents may be proven if not duly authenticated.  Section 19(6) provides that any document “that is duly authenticated” is admissible in the proceedings before the magistrate.  That does not prevent the proof of any matter or the admission of any document in the proceedings in accordance with any other law of the Commonwealth or any law of a State or Territory (s 19(8)).  The latter provision appears to be drafted on the assumption that the rules of evidence apply in the proceedings before the magistrate and it seems to have been so treated in Zoeller at 289.  Given the administrative character of those proceedings, it cannot be said that the rules of evidence apply by virtue of the Commonwealth Evidence Act or by operation of s 79 of the Judiciary Act.  Certainly, the primary function of the magistrate in determining eligibility is able to be discharged, for the most part, by reference to authenticated documents.  The truth of their contents is not to be tested in determining their sufficiency to ground eligibility.  Whether or not the rules of evidence apply by implication from the terms of the Act, outside the area of privileged admissibility conferred by authentication, may be academic.  For, given the nature of the proceedings and the seriousness of their consequences, principles of relevance, procedural fairness and probative value which underpin many important rules of evidence, will generate similar outcomes in relation to material which is proffered in support of eligibility –“…there is little reason to doubt from the context of the Act and the place the proceedings play in the process of extradition that natural justice or “procedural fairness” must not be denied to the person the subject of the proceedings” – Zoeller at 290. In this connection I also refer to my ruling in Cabal (No 2) where, in connection with extradition objections, I held that material may be put before a magistrate to show substantial grounds for believing that an extradition objection exists even if that material might not be admissible to prove the existence of the facts said to constitute the objection.  But even in that case, considerations of relevance,  fairness  and probative value will govern the material that is received.  For procedural fairness cuts both ways.

174               In the present case reliance was also placed in relation to some documents upon the provisions of the Foreign Evidence Act 1994 and in particular s 37 which provides for the authentication of foreign public documents by the affixing of certificates (apostilles) issued in accordance with the requirements of the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents.  By s 37(2) such certificates are evidence in Australian courts or for the purposes of any person performing a function or exercising power under an Australian law, of the authenticity of the signature on the foreign public document and the capacity in which the person signing the document has acted.  Such certificates may also evidence the identity of the seal or stamp that the foreign public document bears.  Article 4 of the Convention, which is scheduled to the Foreign Evidence Act, provides that the certificate shall be placed on the document itself or an “allonge” and shall be in the form of the model annexed to the Convention.  The certificate may be drawn up in the official language of the authority which issues it.  The model of the certificate annexed to the Convention requires it to be “…in the form of a square with sides at least 9 centimetres long.”

Want of Authentication

175               By their amended statement of claim the applicants assert that various documents produced to the magistrate were not authenticated in accordance with the provisions of s 19(7) and, not being otherwise proven, could not be received or acted upon by the Court.  The relevant documents are:

1.         Purported translation of the warrants (par 28).

2.         The warrants themselves (par 33).

3.         The statements of offence (par 34).

4.         The statements of conduct (par 37).

The first documents said not to have been authenticated were the purported translations of the warrants.  For the reasons earlier set out, the Act does not require full translation of the warrants and this point, raised under par 28 of the amended application, falls away as an irrelevant objection.

176               The want of authentication of the warrants alleged in par 33 of the amended application is particularised by some sixty nine paragraphs set out in Annexure B to the application.  It is contended for the applicants that the several documents in the three bundles were not sealed for the purposes of s 19(7)(b) unless each document was separately sealed.  The evidence however was that the one silver seal attached to each bundle was connected to each document in the bundle by a ribbon passing through it.  The one in which these seals were affixed was before the magistrate in the evidence of Dela Guardia who affixed them at the Mexican Embassy.  In my opinion the appearance of and mode of their fixing made clear that each of the documents in the bundle purported to be sealed with the official seal of the Embassy.  The oral testimony of Dela Guardia supports the inference that the silver seal was applied with that intent, albeit it is not necessary to receive evidence on that issue.  In my opinion, as foreshadowed in the general discussion of authentication requirements in the preceding section, the sealing requirement in s 19(7)(b) can be met by the affixing of a seal to the bundle. 

177               The next question is whether the seals purported to be official seals of the kind required by s 19(7)(b)(i).  This issue does not support lengthy debate.  The seal of the Mexican Embassy which represents the United States of Mexico in Australia properly answers the description of “…an official seal…of the extradition country”.  And if it were to be characterised, for example, as the Ambassador’s seal, it would nevertheless be an official seal of an “officer of the government”.  The applicants did not argue that the seal of the Mexican Embassy was not an official seal of the kind required by s 19(7)(b)(i).

178               In further support of this limb of the ground of review relating to authentication of the supporting documents it was contended that the seals had not been validly translated and that therefore they could not be received nor acted upon by the Court – Republic of Germany v Haddad.  Evidence led from Dela Guardia as to the translation of the seals was said to be of no legal effect as he was not qualified as a translator.  But in each case he read the content of the seals in Spanish and what he said was translated by the interpreter.  The content was simply the words “Embassy of Mexico United States of Mexico Canberra Australia”. 

179               In my opinion, the silver seals were translated, purported to seal all of the documents in each bundle and met the requirements of s 19(7)(b)(i).  There was in addition a variety of other official seals imprinted and stamped on the supporting documents.  Indeed, when it came to seals there was an embarrassment of riches.  In my opinion, however, it is unnecessary to go beyond the Embassy seals.

180               The applicants also submitted that the supporting documents are not signed or certified as required by s 19(7)(a) of the Act.  The general pattern of signature and certification relied upon by Mexico, using the warrants as an example, was as follows:

(a)        The clerk certifies the warrant to be a true copy;

(b)        The President of the Federal Judicial Committee certifies (before a witness) that the signature is that of the clerk and that he was at the relevant time the clerk of the relevant court;

(c)        The Assistant Director of the Department of Formalisation and Control certifies the office and signatures of those certifying in (b);

(d)        The Secretary of the Ministry of Foreign Relations certifies the signature and office of the person certifying in (c); and, in some cases,

(e)        There is an apostille certifying certain signatures and offices.

Mexico submitted however, that the signature of certification of the clerk itself complies with the requirements of s 19(7)(a) and that once that is accepted there is no need to further consider other certifications.  Subsequent certification could be relied upon to make it clear, if that were needed, that in any particular case the clerk’s certification related to the warrant in question.  Where there was an original signature of the judge and clerk on the warrant itself, it was not necessary even to consider the clerk’s certification.

181               It is necessary now to consider each of the warrants in turn.

Want of Authentication – First Cabal Request

Warrant 1 – This warrant bears a certification by a clerk of court read by Dela Guardia in Spanish which reading was translated by his interpreter, Ms Evans. In addition, Ms Evans prepared her own translation of the document, which translation was tendered as exhibit 131 and read:

“CERTIFICATION

The Secretary of the Seventh District Court in Penal Matters of the Federal Court CERTIFIES: that the present photocopy consisting of 142 (in ink) pages is a faithful and exact copy of its original which forms part of Writ No. AJ.107/94 (in ink)instructed against Carlos Cabal Peniche and others (in ink) for the commission of a felony against the General Law of Credit Institutions (in ink) used as a measure by this Court, issued on the request of the Agent of the Public Ministry of the Federation (in ink)

Mexico, F.D., 12 November (in ink) 1998

THE SECRETARY

(Illegible signature) (Attorney)

(in ink) Mario Alberto (two illegible names follow)

Seal which reads:

7^th District Court in Penal Matters

Mexico, F.D.

Mexican United States

PENAL SECTION”

In evidence Ms Evans said that the word “secretary” could be translated as “the clerk of courts”.  At the time of doing the translation she was not sure whether the qualifications of the Secretary in Mexico and the equivalent in Australia were identical so she chose to use the term “the Secretary”.  The word “Alto” which she translated as “writ” can also mean “a summons”.  The words “instruivo incontrade” she translated as “instructed against” but agreed it could be translated as “dictated against” or “ordered against”. (T406)  Objection was taken that the exhibit refers to “Writ No AJ 107/94”.  This is not the same as the number on warrant 1 which is “AV 107/94”.  That is plainly a typographical error.  The placement of the original certification on the reverse side of the last page of the warrant, the number of pages to which it refers I am satisfied that the certification relates to the warrant. 

182               Dela Guardia was cross-examined about the procedures required under Mexican law for certification and in particular on Article 25 of the Criminal Federal Procedure Code.  In my opinion, however, the effect of the requirement for purported certification by a relevant judicial or other officer does not require the magistrate or this Court on review, to look behind the certification and inquire into the procedures by which it was carried out.  It was objected by the applicants that the certification was in part ineligible in that the year was obscured.  That was so on the photocopy, but on the original it was apparent that the year was 1998, the figure eight having been typed over a five which had appeared on the original certified stamp.  I am satisfied that the clerk of the court is an officer for the purposes of s 19(7) and that warrant number 1 was authenticated in accordance with the requirements of s 19(7).

Warrant 2 – This warrant bore a clerk’s certificate which was translated by Ms Evans (X132 at T412).  Objection was taken that it refers to “Writ No. 125/94” when the number of the warrant is AV125/94.  I am satisfied however that the certificate refers to the relevant warrant which, as noted in the certificate, which appears on the reverse of the last page, consists of forty six pages.  The certificate is fixed to the warrant with a metal clip.  It is said to be in part illegible.  Although the figure eight has been typed over the figure five in the year, it is legible. Warrant number 2 is duly authenticated for the purposes of s 19.

Warrant 3 – The certificate of the clerk appears on the reverse of the last page of the warrant.  A translation was put in evidence through Ms Evans (X 133 at T413).  It is objected that the number of the warrant certified is not identified.  However, given the location of the certificate and the number of pages, seventeen, referred to and which are stapled together with the certificate, there is no doubt about the identity of the warrant.  Warrant number 3 is duly authenticated for the purposes of s 19.

Warrant 4 – This is certified by the clerk of the Twelfth District Court.  The translation of the certificate prepared by Ms Evans is in evidence (X 134 at T414).  The document is said to be difficult to read or in part illegible.  Although the stamp has been applied twice with the letters not exactly congruent in places, it is readable and was able to be translated.  Warrant number 4 is duly authenticated for the purposes of s 19.

Warrant 5 – This is certified by the clerk of the Twelfth District Court.  Ms Evans’ translation of the certificate is in evidence (X 135 at T414).  It is objected that the identifying number referred to in the certificate is “auxiliary case number 83/94”.  The warrant document itself is numbered “penal III 83/94 A Jud”.  I am satisfied that, given the location of the certificate on the reverse of the last page of the warrant, and its reference to seventeen pages, which is the number of pages in the warrant, it relates to warrant number 5.  It is said to be in part illegible but that does not appear except for one or two letters with which the translator has had no difficulty.  Warrant number 5 is duly authenticated for the purposes of s 19.

Warrant 6 – Here the clerk’s certificate appears on the reverse of a partly legible letter which follows a warrant which together with the letter comprises seventy nine pages.  The number of pages referred to in the certificate which was translated by Ms Evans (X 136 T415) is seventy nine and the number of the writ is 68/95.  The number shown in the letter is AV 68/95.  The first page of the warrant bears the same number.  I am satisfied therefore that the certificate relates to the warrant.  I note also that Dela Guardia identified the judge’s signature on the document entitled “Official Letter” which was numbered 84.  In my opinion the warrant was authenticated for the purposes of s 19.

Warrant 7 – This warrant purported to be signed by the judge who issued it.  Dela Guardia was referred to two signatures which appear on the last page and was asked who normally signed.  He said “the judge and the clerk both together” (T194).  Dela Guardia read out the certificate and the interpreter translated it (T195).  Trucco also verified the accuracy of the Mexican government translation of the certificate.  I am satisfied that warrant number 7 was duly authenticated.

Warrant 8 – This warrant bears the signature of the judge issuing it.  This is apparent on inspection of the warrant on its last page.  Dela Guardia also gave evidence on the point (T209).  Further, there is a clerk’s certificate which has been translated.  The translation (X 138) bears an incorrect file number, 49/94 instead of 49/96 which is the warrant number.  But this is a transcription error as the Spanish version of the certificate bears the correct number.  Warrant number 8 was duly authenticated.

Warrant 9 – This warrant also bore the signature of the judge on the last page referred to by Dela Guardia.  The title “El Juarez” meaning “the Judge” appeared near the signature (T223).  The translation of the clerk’s certificate provided by the Mexican government was verified as correct by Trucco.  On the basis of the judge’s signature and the clerk’s certificate the warrant is duly authenticated.

Warrant 10 – The clerk’s certificate on this warrant was partly illegible but the English translation provided by Mexico was verified by Trucco.  The translation recognised that certain words were illegible.  Even allowing for those words the document plainly certified the authenticity of the copy warrant.  It should be added that even if the clerk’s certificate were to be treated as unacceptable because of the illegibility, the clerk’s signature appearing on the document authenticates it as the clerk is an officer for the purposes of the Act.   The clerk’s signature was verified in an apostille, the English translation of which was verified by Trucco. An objection was taken that the apostille does not comply with the prescribed form in the Hague Convention and does not certify the warrant.  The objection as to form appears to be related to the shape of the apostille being rectangular rather than square.  This is not an objection which I regard as affecting its efficacy.   Warrant number 10 is duly authenticated. 

Warrant 11 – This warrant bears a clerk’s certificate and an apostille verifying the clerk’s signature.  The English translation of each was verified by Trucco.  The warrant is duly authenticated for the purposes of the Act. 

Warrant 12 – This warrant contains a signature at the bottom of the last page which purports to be that of the judge or the clerk.  There is also a clerk’s certificate on a side of the last page. Trucco translated the certificate directly in his oral testimony (T1224). Warrant number 12 is duly authenticated.

Warrant 13 – This warrant bears a clerk’s certificate, a translation of which is in evidence   (X 145 at T421).  It also bears an apostille certifying the clerk’s signature.  Warrant number 13 is duly authenticated.

Want of Authentication - Second Cabal Request

183               There are four warrants backing this request.  Each is authenticated by the signature of the Judge.  There is a clerk’s certification on warrant number 1, number 2 and number 3.  The clerk’s certification in warrants 1 and 2 is translated.  The warrants are duly authenticated.

Want of Authentication - Pasini Request

184               Both warrants are duly authenticated.  Warrant number 1 bears the signatures of the issuing magistrate and the clerk of the court as well as the clerk’s certificate and a translated apostille.  Warrant number 2 bore the signature of the clerk and a translated certification by the clerk.  These warrants are both duly authenticated. 

185               For the preceding reasons the ground of review raised in par 33 with respect to the warrants fails.

Want of Authentication - The Statements of Offence and Penalty and Statements of Conduct

186               The statements of offence and penalty and the statements of conduct each form a single document in respect of each of the three requests.  They are sealed by virtue of the Embassy seal on each bundle.  The statement accompanying the first Cabal request bears the signature of the Deputy Attorney-General on the last page.  Each of the statements in respect of the second Cabal request and the Pasini request bears the signature of the Attorney-General.  The statements are duly authenticated.  The objections raised in pars 34 and 37 of the application therefore fail.

Sufficiency of Translations

187               By the amended application it is contended that the supporting documents have only partial or unqualified or unreliable translations.  This relates to:

(i)         the warrants (pars 29-31);

(ii)        the statements of offences (par 35);

(iii)       the statements of conduct (par 38).

188               The contentions relating to the want of sufficient translations of the warrants raised in pars 29 to 31 inclusive of the amended application have already been dealt with in the discussion of the requirements of the Act with respect to the translation of documents generally. 

189               The translations of the statements of offence and conduct which were included in the supporting documents were checked by Florez and Edwards.  Marked up copies of the translations were prepared which showed changes in the translations which the witnesses would have made, being changes elicited both in examination-in-chief and cross-examination.  The applicants noted that the approval of the translations by these qualified witnesses was expressed in terms of vague standards.  Expressions such as “overall very good”, “fairly good”, “acceptable” and the like were used by Florez and Edwards.  Subject to the specific qualifications and changes which they would have made these were statements of opinion from qualified persons which entitled the magistrate to act with a degree of confidence on the content of the statements for the limited purposes of the Act.  The translations were, in my opinion, admissible.  No doubt the time pressures under which the checks were carried out and the fact that the witnesses were checking somebody else’s translation rather than preparing their own, represented a less than ideal process.  In my opinion however the exercise did produce documents which could be acted upon and in which doubtful elements of the translation were identified.  The grounds for review set out in pars 35 and 38 of the amended application are not made out.

Illegibility and Incompleteness

190               The applicants by pars 32 and 36 of the amended application have raised the issue of the illegibility and/or incompleteness of the warrants and the statements of minimum wages which form part of the statements of offence and penalty.

191               It was submitted for the applicants that various pages of the warrants are in part illegible or incomplete.  The page numbers were identified.  The applicants submitted that:

“For the same reasons that an untranslated document cannot be acted upon by an Australian court, a document that can not be read cannot be accepted as a valid document, especially where the liberty of the individual is involved.  Illegibility equates to incompleteness.  There is no capacity to translate the illegible portion of such a document.  Where a warrant is incomplete there can be no assurance that the missing part does not include relevant and significant qualifications to the parts of the warrants that had been disclosed.”

An incomplete document, it was said, does not meet the test of strict compliance with the requirements of the Act.  Such a document is “inaccurate or incomplete in a relevant and material respect”.  The quotation was taken from the judgment of the Full Court in Harris v Attorney-General (Cth) (1994) 52 FCR 386, citing a passage from the judgment of Lord Templeman in Re Evans [1994] 1 WLR 1006 at 1014.  In the latter case it was said that the court could intervene:

“If the presentation of the law of the foreign state set forth in the request for extradition were inaccurate or incomplete in a relevant and material respect and the correct law could not be presented by agreement.”

The Full Court in Harris however had italicised the words “in a relevant and material respect” to add emphasis to its overriding proposition that in this area substance is to be preferred over form. (at 401)  Their Honours cited with approval a statement in Corpus Juris Secundum, Vol 35 (par 33 at 4 p 461):

“Technical objections as to matters of form will not be favourably considered and it is sufficient if the certificates, signatures etc, are in substantial conformity with the requirements of the statutes and give reasonable assurance of authenticity….”

192               The first resort in the determination of this question is the language of the Act which, relevantly for present purposes, requires “a duly authenticated copy” of the warrant issued by the extradition country.  What is produced must be a copy.  The question is, whether a copy that is less than perfect can be used.  In deciding that question, it is necessary to have regard both to the words and to their purpose.  The purpose of producing a warrant is to demonstrate to the requested country that there is in existence in the requesting country an order for the arrest of the requested person in relation to the offences for which that person’s extradition is sought.  That purpose, as previously observed, does not require presentation to the magistrate of a full translation of the warrant.  It is sufficient that the legal nature of the document is demonstrated and its relationship to the offences for which extradition is sought.  That may be done by partial translations of the operative parts of the warrant and also, as in this case, by reference to the statements of offences and conduct which refer back to the various warrants.  In this instance the warrants do not fulfil the dual function of warrants and statements of offence, penalty and/or conduct.  Consistently with that purpose illegibility in minor respects which do not affect the magistrate’s ability to determine the issues that have to be determined about the documents offered as warrants will not prevent them from being produced and received.

193               There is a question of degree here.  What is produced must, for practical purposes, still be a copy.  Along the scale of illegibility a point will be reached where the extent of illegibility, while not affecting the operative parts of the warrant and those which identify the offences to which it relates, will nevertheless lead to it being treated as not a “copy” for the purposes of the Act.  What is required is “practical judgment and assessment” and not “over zealousness in discerning deficiencies” – Wiest  at 519 (Gummow J).

194               The warrants said to be illegible can be considered in the light of these matters.  In this case I have inspected the original exhibits produced before the magistrate. 

Illegibility and Incompleteness - First Cabal Request

Warrant 1 – pp 130 and 131 in Exhibit 6.

195               The warrant occupies some 139 pages.  The first two pages are substantially illegible.  There is minor illegibility on the page numbered 199.  Nothing has been advanced by the applicants to suggest that these deficiencies are material in the characterisation of the warrant or the offences to which it relates. 

Warrant 2 – pp 410, 426, 428, 430, 434, 436, 440, 442, 444, 450

196               This warrant occupies some 45 pages.  On the ten pages cited there is some degree of illegibility in the copy.  Nevertheless again there is no material advanced to suggest that the deficiency is material to identifying the legal character of the document and the offences to which it relate.  The warrant remains a copy albeit not a particularly good one of the original.

Warrant 4 – p 603

197               There is some minor illegibility on the resolution page, 603.  Nevertheless the applicant’s witness, Izunza, was able to read the resolution paragraphs which were translated by an interpreter to the magistrate (T 3818-3819).  I am satisfied that the warrant is a copy for the purposes of the Act.

Warrant 6

198               This warrant occupies some 79 pages.  The applicants have identified some 45 pages which they say are illegible.  There is some partial illegibility in some of the pages, others are difficult to read.  The degree of illegibility in my opinion however, is not such as to take the document out of the description of a “copy” of the original.  There is no suggestion of any material illegibility having regard to the identified purposes of the Act. 

Warrant 8

199               This warrant occupies some 49 pages.  It is suggested that one of those pages is illegible.  The page numbered 952R has a white strip running vertically up the page about two-thirds of the way across it.  The page is effectively illegible.  However, there is no suggestion that this is a material illegibility or that it takes the warrant out of the category of a copy.

Warrant 9

200               Two pages of this twelve page warrant are said to be illegible, they being pages numbered 1050 and 1053.  The illegibility is minor.  It is not suggested that it is material.  The warrant is a copy.

Warrant 10

201               Four pages of this warrant are said to be illegible.  They being the pages numbered 1116, 1140, 1148 and 1160.  There is partial illegibility on these pages.  It is, for the most part, comparatively minor.  It does not appear to be material.  It does not take the warrant out of the category of a copy.

Illegibility and Incompleteness - Second Cabal Request

Warrant 4

202               One page, 516 (otherwise 597) is partly illegible.  It does not, in my opinion, take the warrant out of the category of a copy.

Illegibility and Incompleteness - Pasini Request

Warrant 2

203               Pages 191 and 192 are substantially illegible.  However, absent materiality and given the overall length of the warrant, they do not take it out of the category of being a copy.

204               Applying the criteria which I have already enunciated, I am satisfied that the copy warrants, notwithstanding partial illegibility, are copies for the purposes of the Act.  Paragraph 32 of the amended application is therefore not made out. 

Illegibility and Incompleteness – Statements of Offence and Penalties

205               Paragraph 36 of the amended application asserts that certain of the statements setting out the offences and penalties under s 19(3)(c)(i)  are in part illegible and/or incomplete and as such are not “supporting documents” and in the alternative cannot be received or acted upon by the Court.  Each of the statements in question is the statement of minimum wages upon the basis of which penalty is calculated. 

206               The statement of minimum wages produced in support of the first Cabal request appears at p 115-116 of Exhibit 6.  It is said that some of the numbers appearing in the statement are in part illegible.  This was said to have been acknowledged by Florez (T523).  What he said was that there was a figure in the original which was “not very clear”.  He was, however, able to identify the figure as $16.34.  There is no substance in the objection.  A similar point is taken with respect to the second statement of minimum wages in support of the second Cabal request.  Again, it is a matter of clarity rather than illegibility.  Florez was able to confirm the accuracy of the Mexican government translation of this statement without any difficulty generated by illegibility.  The like point was taken with respect to the statement of minimum wages provided in support of the Pasini request.  Again, it was a lack of clarity, rather than illegibility.  Ms Edwards was able to assess the translation provided by Mexican government against the Spanish original, albeit it was a little “difficult” to read.  I am satisfied therefore that the statements of minimum wages were capable of being produced and can be acted upon by the Court.  The ground of review raised by par 36 therefore fails.

Legal Insufficiency of Statements of Conduct

207               The applicants contend in par 40 of the amended application that the statements of the conduct constituting the offences produced pursuant to s 19(3)(c)(ii) are not valid statements for the purposes of the Act.  The basis of that contention, as set out in par 40, is that the statements include conduct relating to two or more offences.  The specific parts of the statements so impugned are:

1.         The statements relating to warrants 1 to 7 under the first Cabal request.

2.         The statements relating to warrant 1 under the second Cabal request.

3.         The statements relating to warrants 1 and 2 under the Pasini request.

208               The Act requires that the supporting documents produced to the magistrate include “a duly authenticated statement in writing setting out the conduct constituting the offence”.  The definition of “conduct constituting the offence” in s 10(2) requires that the statements set out “the acts or omissions or both, by virtue of which the offence has, or is alleged to have, been committed”.  The content of such statements was recently discussed by the Full Court in McDade v The United Kingdom [1999] FCA 1868 in the judgment of Kenny J, with whom the other members of the Court agreed.  The decision on McDade is under appeal to the High Court, special leave having recently been granted.  Nevertheless this judgment proceeds upon the basis that the Full Court decision in McDade is correct.  It is unnecessary to review again the cases referred to in that decision in which I participated as a member of the Court.  The relevant propositions to be derived from it are:

1.         The purpose of a statement setting out the conduct constituting the offence is to assist the magistrate in determining eligibility for surrender under s 19. [par 15]

2.         The Act requires a clear and coherent statement of the actual acts or omissions said to constitute the offence.  A simple definition of the offence will not suffice.  The acts or omissions are the elements of the offence, not the evidence relied upon to prove them. [par 16]

3.         The statement must be such as to permit the magistrate in s 19 proceedings to be satisfied whether the conduct, if it had taken place in that part of Australia where the proceedings are conducted, would constitute an extradition offence.

4.         A document which is so vague and general and disorganised that the relevant acts or omissions cannot be reasonably identified will not meet the requirement.  This is to be decided as “a matter of practical judgment and assessment, not for over-zealousness in discerning deficiencies” .[par 17]

209               Following the general principles outlined above, the propositions arising out of the particular grounds of appeal in the McDade case were thus:

5.          A statement of conduct does not fail to comply with s 19(3)(c)(ii) only because it contains facts which are in addition to the facts necessary to constitute the extraditable offence.[pars 20-21]

6.         The one statement may set out conduct relating to more than one extradition offence provided it speaks with sufficient specificity to permit the magistrate charged with conducting the proceedings to discharge the statutory task. [pars 26-28]

7.         The statement may be found in more than one document. [par 30]

The decision in McDade lies directly against the proposition in the pleadings in this case that the statements are, as particularised, invalid for including conduct relating to two or more offences.   Counsel for the applicants, Mr Aughterson, formally submitted that the case was wrongly decided but went on to say that the statements, even if properly setting out conduct relating to two or more offences, do not adequately identify the conduct relating to each of them. That is to say there is not a sufficient identification of acts with offences. This point went beyond what was pleaded.  It was put on a fairly general basis in oral argument with the broad assertion that,  looking at the statements, the applicants could not ascertain which facts related to which offence. 

210               It was submitted for Mexico that the proposition in McDade does not extend to requiring the magistrate to allocate particular facts alleged in the statement of conduct to particular offences against the law of the requesting country.  That task would, it was said, involve the magistrate in deciding which facts were necessary to make out an offence against the foreign law and whether the facts alleged were sufficient for that purpose.  In this connection it is appropriate to refer to what the Full Court said in Zoeller at 300:

“The magistrate is no expert in foreign law.  He is not required to determine what the facts are that are the minimum facts necessary to constitute the foreign crime.  That there has been a foreign crime committed, is for the purpose of the proceedings before the magistrate, proved by the warrant duly authenticated.  What the facts relevant to that crime are is proved by the duly authenticated statement under s 19(3)(c)(ii).  That the offence is an extraditable offence is proved by the s 19(3)(c)(i) document.  All the magistrate is required to do is, by reference to Australian law, to determine whether the conduct referred to in the s 19(3)(c)(ii) statement is an offence under the law of a State or Territory of Australia or Commonwealth law.”

The clarity, coherence and specificity required of the statement relates to “the actual acts and omissions which are said to constitute the offence”.  This is a reference to the description of the conduct set out, not its relationship to the offence alleged in the requesting country.  That relationship is asserted and must be accepted by reference to what is set out in the statement of offence.  The comment in the judgment of Kenny J in McDade that, in that case, it was “not difficult to relate each charge to that part of the statement which narrates the relevant alleged conduct” does not set out a general principle that it is necessary to do so. 

211               The statements of offence, penalty and conduct embody:

1.         Brief particulars of each warrant including the date, the issuing judge, the persons against whom the warrant was issued and the statutory provisions said to have been breached.

2.         For each of the warrants, statement of the facts relied upon.

There follows a statement that the warrants remain in force.  There are then set out the provisions of the laws said to have been breached, the punishment that may be imposed for the breaches and relevant limitation provisions.  For each warrant there is thus an identified statement of the offences and penalties to which it relates and a statement of conduct.  Any aggregation of conduct constituting the offences occurs in relation to a particular warrant. 

212               In the present case the magistrate applied the correct test as enunciated above saying at p 39 of the reasons:

“It is clear from the authorities that an Extradition magistrate is not intended to undertake the task of seeking to match a local offence to the offence for which extradition is sought, but rather to look to the conduct set out in the Statement of Conduct contained in the supporting documentation produced in order to determine whether, had that conduct occurred in Victoria at the time when the extradition request was received, would the elements of an offence punishable by a penalty of imprisonment for twelve months or more have been made out.”

213               Taking as they do, the threshold point that various of the statements, by virtue of their aggregation of conduct constituting the offences, do not link particular elements of that conduct to particular offences against Mexican law, the applicants say they are incapable of discerning whether dual criminality is established.  Consistently with that logic, they do not traverse the actual allocation of conduct to offences against Australian law which the magistrate has carried out.

214               Mexico in its written submissions has offered a detailed justification of the allocation of the conduct in the statements to offences against Australian law.  These offences involve contraventions of s 232 of the Corporations Law and ss 74, 81 and 82 of the Crimes Act 1958 (Vic).  I do not propose to replicate that exercise.  It is not suggested that the conduct set out cannot be identified with breaches of relevant Australian law.  The point taken by the applicants is that it is not possible to discern which parts of the conduct in each statement of conduct relate to the asserted offences against Mexican law.  The step is not a necessary one.  Paragraphs 40 and 41 of the amended application do not therefore make out a ground of review. 

Extradition Objections – Prosecution or Prejudice by Reason of Political Opinion

215               Among the necessary conditions for eligibility of a person for surrender, established by s 19(2) of the Act, is that set out in s 19(2)(d), namely that:

“(d)  the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence.”

In this case the applicants maintain that there are substantial grounds for believing that there are extradition objections in relation to them, those being the grounds set out in ss 7(b) and 7(c) of the Act.  Each asserts that his surrender is sought for the purpose of prosecuting or punishing him on account of his political opinions (s 7(b)) or that he may be prejudiced at trial or punished, detained or restricted in personal liberty by reason of those political opinions (s 7(c)).   As I observed in Cabal (No 2) at748, the Act does not require the requested person to satisfy the magistrate that either or both of these circumstances is the fact.  It is sufficient to make out substantial grounds for believing that to be the case.  The latter term is ambulatory.  It is evaluative in character and must be applied having regard to the legislative purpose.

216               The subject matter of the objection under s 7(b) is the actual purpose for which the surrender of the requested person is sought.  The content of that purpose is “…prosecuting or punishing the person on account of his or her … political opinion … in relation to the extradition country”.  It cannot be contended before the magistrate in s 19 proceedings that the requested person has not engaged in conduct constituting an extraditable offence for which his or her surrender is sought (s 19(5)).  So the issue raised under s 7(b) must be raised on the premise that the person has engaged in conduct constituting the offence.  This excludes debate before the magistrate that the charges have been falsely fabricated because of the person’s political opinion.  That wider consideration, if available at all, is reserved for the Attorney-General in deciding whether to issue a notice under s 16 and, ultimately, whether to surrender the requested person under s 22. 

217               The limitation upon the magistrate’s consideration of the political opinion objection reflects upon the assessment of the purpose to be addressed under s 7(b).  Alternative hypotheses which could arguably establish grounds for the objection are:

1.         That the requesting country seeks the surrender of the person to prosecute or punish him or her for the extradition offences but does so on account of his or her political opinion.

2.         The requesting country seeks the surrender of the requested person not to prosecute or punish him or her for the offences but to do so on some other basis on account of his or her political opinion. 

3.         The requesting country seeks the surrender of the person to prosecute or punish him or her separately on account of political opinion and also on account of the offences.

Hypotheses 2 and 3 are likely to involve breaches of the speciality assurance which must be given under s 22(4).  That assurance is not a matter for consideration by the magistrate.  It is a matter for the Attorney-General in deciding whether or not to surrender the eligible person under s 22.  There is no suggestion, in the application, of any particular way, other than by prosecution for the extradition offences,  that the applicants are at risk of being prosecuted or punished on account of their political opinions.  This leaves the first hypothesis as that which most clearly accords with the way in which the case must be approached having regard to the statutory framework.

218               There is a double purpose to be considered.  Surrender is sought to prosecute or punish the applicants on account of the offences they are said to have committed.  It is also, on their case, sought because of their political opinions.  I accept, in favour of the applicants, that it is not necessary that surrender be sought solely on account of their political opinions in order to make out the objection under s 7(b).  Such a requirement would, in the context of the statutory limitations already discussed, deprive the political opinion objection of much, if not all of its utility, and that would not be consistent with the legislative intention in establishing it as a basis for denying eligibility for surrender.  There is therefore a judgment to be made about the multiple purposes of the requesting country.  In some ways it is analogous with the kinds of judgments that can arise under the Refugee Convention.  To establish a well–founded fear of persecution for reasons of a Convention attribute, race, religion, nationality, membership of a particular social group or political opinion, a person must show that the reason for the feared persecution is that attribute.  It does not exclude the possibility that the occasion for persecution may be something other than the relevant attribute.  So an individual may commit a minor offence which is harshly punished because that individual possesses the relevant attribute, eg a political opinion adverse to government.  As I said in Jahazi v Minister for Immigration and Ethnic Affairs (1995) 61 FCR 293 at 299:

“To require that a feared persecution arises solely for a Convention reason would be to narrow the scope of the protection artificially.  It would be an inadequate response to the possible varieties of and excuses for the oppression of target groups within a repressive society.”

That having been said, a bare causal connection would not be sufficient to attract Convention protection.  The question whether a posited causal connection between persecution and a Convention attribute attracts the protection will be resolved not merely by the logic by causality but as a matter of evaluation which has regard to the policy of the Convention.  While it is not necessary that the fear of persecution be of persecution solely attributable to the Convention attribute, regard can be had to the extent to which that attribute is a factor in the risk of persecution.  It would be dangerous to essay any exhaustive statement of principles by which the causal connection implicit in the political opinion objection is to be assessed.  It is a matter of evaluation.  So the extreme case of a political figure with a history of recent opposition to the government of the requesting country, whose surrender is sought for offences at the lower end of the scale of extradition offences, in a departure from that country’s usual practice, may support the assessment that the surrender is actually sought for the purpose of prosecuting or punishing the person on account of political opinions.  If it is sought to prosecute someone for criminal offences as a means to the end of prosecuting or punishing that person on account of political opinions, then the immediate purpose of prosecution for the criminal offence serves the ultimate purpose of prosecuting or punishing for the political opinions and would fall within the scope of s 7(b). 

219               In the present case the offences alleged are extremely serious. As is pointed out in Mexico’s submissions, the charges in the first request relate to banking offences and fraud involving approximately $US242,722,590.  Those in the second request relate to money laundering, tax fraud and a banking offence.  They involve in excess of $US50,000,000.  The Pasini charges relate to aiding and abetting a banking offence and concealment.  They involve about $US80,000,000.  Any government or regulatory authority with the relevant responsibility, which did not seek to prosecute for such offences would be open to the accusation that it was failing in its duty.  The seriousness of the offences, the commission of which cannot be called into question in these proceedings, establishes powerful support for the inference that their prosecution is justified on its merits and brought for a legitimate purpose. It would require a weighty case to support the contention that there are substantial grounds for believing the surrender of the applicants is actually sought for the purpose of prosecuting or punishing them on account of their political opinions.

220               The onus is upon the applicants and while it does not require that the extradition objection is proven on the balance of probabilities – Cabal (No 2) at 748-749, that onus is not easily discharged.  It is no light matter for the magistrate or this Court to conclude that there are substantial grounds for believing that the requesting country is acting in bad faith, especially given the necessary assumption that the offences have been committed.  There is also the existence of the Treaty itself to which regard must be had.  Where there is a treaty in force, its existence no doubt reflects a degree of mutual trust and confidence between the contracting parties as to their bona fides and the fairness of treatment that would be meted out by one or the other to a fugitive who has been surrendered – State of Wisconsin v Armstrong (1973) 10 CCC 2d 271 at 277, cited in Hempel v Attorney-General (Cth) (1987) 77 ALR 641at 659, see also Wiest at 514.

221               Recent experience in Australia demonstrates that high profile extradition cases involving attempts to return alleged offenders to this country can enter the sphere of political debate and controversy.  This is particularly so where very large sums of money are said to be involved.  There is no reason to expect that such cases in other countries may not give rise to similar debate and sometimes public and political controversy.  That is not a new phenomenon.  In R v Governor of Pentonville Prison, Ex parte Teja (1971) 2 QB 274, the Court of Appeal dismissed an application for habeas corpus from an Indian national accused of criminal breaches of trust in respect of the dishonest conversion of the money of a company of which he was chairman.  Lord Parker CJ (Cairns LJ and Melford Stevenson J agreeing) referred to newspaper articles and parliamentary debates in India, records of which had been put before the court, to show that in that country there had been a complete disregard to what might be called the sub judice principle and that the applicant had been made the centre of acute political controversy.  Lord Parker said:

“There is no doubt that he has throughout been the subject of acute political controversy.  At the same time there is not a shred of evidence, as I see it, that he as a person had entered into the political arena, that he had expressed any view on politics.  The only evidence is that he was a friend of Nehru, and took this job on at the request of Nehru in order to do something for India and the public life of India.  The fact that he had that association with Nehru, and it is said an association with the chief of staff and the nephew of the chief of staff and others, does not seem to me to go anywhere near bringing him within section 4 as a man whose political opinions are such that the prosecution should seek to punish him for political views, or that by reason of his political views or opinions he will not get a fair trial in India.” (289)

The fact that there may have been political controversy in Mexico associated with the laying of the charges in respect of which extradition is now sought or that politicians or political figures may have made statements about the case and even about its merits or about the accused persons, does not establish a basis for an extradition objection grounded on alleged prosecution for a political opinion.

222               The question of what constitutes a political opinion for the purposes of s 7(b) and 7(c) is not able to be answered comprehensively.  The ordinary meaning of the word “political” is broadly expressed in the Shorter Oxford English Dictionary:

“1.  Of, belonging or pertaining to state, its government and policy; public, civil; of or pertaining to the science or art of politics.

.

.

.

3.  Concerned or dealing with politics of the science of government.”

The range of topics that may be the subject of a “political opinion” is immense.  Its scope was recognised in decisions of the High Court dealing with the constitutional implied freedom of communication with respect to public affairs and political discussion.  So in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 there are references to discussions of government as including “information, opinion and ideas about all aspects of the government of the Commonwealth” (74).  In Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106, it covered “… a wide range of matters that may call for or are relevant to, political action or decision” (13).  And in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 124, Mason CJ, Toohey and Gaudron JJ saw the concept of political speech as extending to “all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about” (124).  See generally the discussion in Brown re Classification Review Board (1998) 82 FCR 225 at 237-238 (French J) and 243-246 (Heerey J).

223               I do not think that the concept of a political opinion for the purposes of s 7(b) and (c) should be narrowed as a matter of construction.  The necessity to link the opinion held or expressed to a prosecutorial or punitive response by the requesting government will in many, if not all cases, require a demonstration of its practical significance for that government. That may in fact narrow the effective range of opinions capable of supporting an extradition objection.  But the circumstances in which such opinions may give rise to adverse governmental responses of the kind contemplated by the Act, are potentially so diverse that it would be unwise to impose some limiting construction upon the ordinary meaning of the words.

224               Whether or not it is necessary that the relevant political opinion, for the purpose of an extradition objection, be actually held by the requested person, or whether it is sufficient that the political opinion is imputed to the requested person by the requesting country, need not be explored here.  Spender J has observed in Stanton v Republic of the Philippines (unrep Fed Court 12/1/93):

“It is not an extradition objection that a person might suffer prejudice because that person has a connexion with another person who holds certain political opinions…”

For present purposes however, I do not exclude the possibility that an imputed political opinion may form a basis for an extradition objection.  In the event and having regard to the conclusions which I have reached in relation to the extradition objections in this case, it is unnecessary finally to determine that question.

225               How then do the applicants put their case of prosecution on account of their political opinions?

226               The amended application in par 42 sets out some sixty one paragraphs of particulars to support the extradition objections under s 7(b) and s 7(c) of the Act.  These were supported by reference to oral testimony and large quantities of written material to which the magistrate was asked to have regard.  My overwhelming impression, after having read the relevant submissions and listened to Mr Burnside’s careful and comprehensive argument, was that there was an air of unreality about the substance of these objections and their scope.  Based in part on sweeping assertions and broad generalisations about the political and judicial systems of the United States of Mexico, they require consideration of material and invite conclusions of a kind which are, in my opinion, inappropriate for the process which a magistrate must undertake in determining eligibility for surrender under s 19, or this Court on review under s 21.  These general matters are of the kind that require the much broader processes of governmental judgment, backed by expert advice, which inform decisions such as whether a treaty is to be entered into or continued, whether a s 16 notice is to be issued and whether ultimate surrender is to be effected.  The approach to be taken must have regard to the nature of the process which the Act has provided in relation to the determination of eligibility for surrender.

227               In my opinion, which is not advanced as an exhaustive proposition, an extradition objection under s 7(b), in proceedings before the magistrate, will not usually be made out unless :

1.         A well-defined political opinion, at the time of the request for surrender, is or has been held by the applicant.

2.         The content and the history of expression of, or action upon the asserted political opinion by the applicant is such as to be of demonstrable concern to the requesting government and to form a credible basis of that government’s desire to prosecute or punish the applicant.

3.         There is material of probative value on which the inference is open that the crucial decisions underlying the request for extradition by the requesting government have been taken because of the applicant’s political opinions.

228               The outline of the facts upon which the political opinion objection is based is set out in the applicants’ outline of submissions and conveniently summarises their contentions as follows:

1.         For over seventy years Mexico has been and is today a country governed by a single party, the PRI.

2.         Mexico is not a democracy, but a sophisticated dictatorship, in which the President of Mexico is all powerful and there is little or no rule of law.

3.         Under the President there is a small political and economic elite which runs Mexico.

4.         The Mexican Government has traditionally and notoriously used the legal system as an instrument to enforce its political will.

5.         Since before 1994 Cabal has had political opinions.

6.         By 1994 Cabal’s political opinions had brought him into conflict with the Mexican Government.

7.         In the first half of 1994 Cabal’s political opinions caused him to defy the authority of the Mexican President and the ruling party.

8.         Cabal’s defiance was of a kind liable to provoke a punitive or disciplinary prosecution against him.

9.         A senior Mexican government official told Cabal in August 1994 that the processes in train against him were being directed by the President.

10.       The criminal complaint and application for the first warrant against Cabal were processed with extraordinary speed, contrary to what they told Cabal, the authorities were not interested in hearing him address their purported concerns.

11.       The Ministry of Finance which initiated the charges, showed no interest in recovering the loans the subject of the charges, but only in writing the loans off, which would enable charges to be brought under Mexican law.

12.       Before any charges were laid against him, Pasini engaged in conduct that was liable to be perceived by the Mexican government as evincing political opinions parallel to Cabal and a political stance based on those opinions.

13.       A senior Mexican government official told Cabal in November 1998 and Mrs Cabal, Pasini and their lawyer in September 1995, that Cabal’s was a politically motivated prosecution.  He also told Pasini that Pasini in particular among those helping Cabal was at risk of being prosecuted for getting involved. – This refers to Cabal and Pasini’s discussions with Ponce.

14.       In May 1999, Cabal formed the opinion that he should disclose to the public his involvement and President Zedillo’s involvement in undisclosed contributions to the presidential campaigns of Colosio and Zedillo.  By doing so he triggered a political scandal.

15.       Zedillo responded to Cabal’s disclosures by publicly and falsely denying the fact of the contributions and his knowledge of the contributions.

16.       In addition, in an unprecedented, full-page notice published in the Mexican press, the PRI falsely branded Cabal a liar as a result of his disclosures and declared its determination to see that the full weight of the law is brought to bear against Cabal.

17.       Cabal’s case is one in which Zedillo is now specifically interested.

18.       The Mexican government officials charged with pursuing Cabal and Pasini and progressing their prosecutions or those of their co-accused, have evinced a disregard for due process of law.

19.       The Cabal/Pasini prosecution is high-profile in Mexico; high-profile prosecutions get special treatment from the authorities.

20.       Cabal and Pasini are wanted by Mexico for political reasons.

21.       Cabal and Pasini are unlikely to receive a fair hearing in Mexico. (Document 72)

229               It may be accepted as matter of fact that Mexico has for a long time been governed by a single party, the PRI.  However statements by expert witnesses that it is “not democratic” and is “an authoritarian system” or that the President is “all powerful” and that “there is little or no rule of law” are of little utility.  They are normative statements of historical, social and political issues which a court is ill-equipped to assess.  The range of attitudes in contemporary political and social debate in Australia will surely throw up those who are prepared to argue that the Executive under the Prime Minister is all powerful, the Parliament a mere cypher, and true democracy (however that is understood) not realised.  The point is probably illustrated by Professor Roett’s discussion of the rule of law which, he says, does not exist in Mexico.  Asked what he understood by the rule of law, he said:

“The rule of law is a system that is transparent in which there is accountability and in which there is trust on the part of the people of the nation.”

The level of generality and the polemical tone of his testimony on these issues, as well as that of Professor Valdez, Mr Guerra and the lawyer, Zinser, to similar effect, does not provide any secure foundation from which to make judgments about the purposes of the particular prosecutions under consideration in this case. 

230               Focussing more closely on the independence, impartiality and integrity of the Mexican judiciary, whose members issued the warrants, Professor Roett acknowledged that he had not conducted any research into the views he expressed about them.  It was not his area of specialisation.  Attempts to elicit from him evidence about selective prosecutions bore little fruit.  He had no direct knowledge of the phenomenon and had not conducted research into the area, although he had read some articles about it. 

231               Interestingly, he did credit President Zedillo with attempting institutional reforms.  He had moved the PRI to greater openness and had supported free elections at the State level and for Congress.  Professor Roett also seems to have suggested that President Zedillo was concerned about reform of the judiciary but had “not been able to make a great deal of progress in part because of the nature of the Mexican judiciary, the tradition of the Mexican judiciary being amenable to political influence” (T1845).  This he characterised as “one of the most difficult institutional changes across Latin-America” and referred to “many programmes supported by foundations and by governments attempting to work with governments to make the rule of law transparent, to improve the judiciary”.  But this, he said, was “moving very slowly in the case of Mexico”.  Professor Valdez, a Professor of Constitutional Law and Political Science, spoke in broad terms of the intolerance of the political system for dissidence or criticism in key areas.  Its first reaction, he said, was to use the law, one way being by charges of tax fraud based on Mexico’s “incomprehensible tax laws” or some other criminal charge.  The criminal law apparatus he described as “…controlled by the President by means of an employee whose title is Federal Attorney-General to whom the President gives orders and who he dismisses at any moment when he believes it is appropriate” (T2144).  According to Valdez it would be seen as an act of political betrayal for a significant supporter of Colosio, as Cabal had been, to decline then to provide support to the same extent or in the same way to his successor candidate, Zedillo.  Again Valdez evidence, like that of Roett, was evidence of considerable generality and not informed by recent experience in the practice of the law, he having last practiced criminal law in the 1980s (T2179).

232               Zinser who was also called in relation to the extradition objections is the principal lawyer representing Cabal and Pasini in Mexico.  He spoke of the practice of ex parte meetings between lawyers and the judge handling a particular case, although this appears to be a facility available to both prosecution and defence lawyers.  He also spoke of the possibility that a judge could be approached by a Minister or other interested authority, not party to the proceedings.  He said in some cases judges had complained of pressure being put on them (T2229).  In high profile cases, according to Zinser, there was an acceleration of the processes from investigation to application for and issue of warrants (T2276-2277).  In such cases it was not easy for any judge because they were not protected from pressure (T2277).  The way that a judge would react to a high profile case was a matter of luck.  Good judges made it a point to be independent, but it was a difficult struggle. (T2278) 

233               Another witness called by the applicants was Ricardo Guerra, a political science graduate and political consultant who had been employed by the PRI in the General Co-ordinating Office of the 1994 presidential campaign for Colosio and Zedillo.  He gave evidence of a general nature covering the political system, the power of the President, the electoral process and the system by which the President effectively choses his own successor.  He described the Cabal case as “a huge scandal” in Mexico having regard to the significant application of public resources by the government against Cabal. 

234               The preceding accounts of general aspects of the evidence-in-chief of these expert witnesses illustrates the breadth of the opinions offered and what was, at best, their marginal relevance for the kind of determination which the magistrate was called upon to make.  This evidence was extensively criticised in submissions put by Mexico as vague and imprecise, not logically probative and not based upon sufficient relevant expertise.  Nor, it was said, were the witnesses impartial.  I accept, in particular, that this was so of Zinser who was Cabal’s Mexican lawyer.  He could, with all due respect, hardly be regarded as an independent witness particularly when it came to offering opinions about the legal system and its impact upon his client and the way in which the prosecutions were instituted and processed.

235               It is not necessary to canvass the detail of the criticism to say that the evidence of these witnesses in relation to their general propositions about Mexico’s political and legal system does not establish any basis for demonstrating substantial grounds for an extradition objection under s 7.  Those difficulties reflect the more fundamental difficulty about trying to engage the court in making the kind of judgment about Mexico which is proffered in this case.  I should add that in this respect I also regard the magistrate’s decision not to accept the large volume of general “country information” from sources such as Amnesty and other organisations as being correct.  It was also correct, in my opinion, as a matter of procedural fairness.   I was referred to a large number of passages upon which the applicants sought to rely.  There was a mix of general propositions about the Mexican political and legal systems and specific incidents of human rights abuses and the like, the factual aspects of which could not be determined by the Court.  And for the reasons I have already indicated, the kind of judgment they invite is not, in my opinion, the kind of judgment which the magistrate should be asked to make in s 19 proceedings or this Court upon review.

236               Moving from the general to the particular, it is necessary to consider the applicant’s asserted political opinions which are said to occasion the requests for extradition.  The factual history and asserted expression of these opinions has been canvassed earlier in these reasons.  The genuineness of the asserted opinions is in issue.  There was an attempt to encapsulate them in a document put before the magistrate and marked for identification.  As expressed in that document they were:

“DESCRIPTION OF CABAL’S POLITICAL OPINION

1.         Cabal has held the view that the Mexican Federal Government has not given enough attention to the under-developed Mexican southeast region from which he originates: and has always given preference to other regions of the country such as northern and central regions.  Cabal vigorously promoted the interests and development of the south east of Mexico.  He decided to participate in the changing of the historical position of the region as an underdeveloped and relatively powerless part of Mexico.

2.         Cabal has held the view that the only way for Mexico to prosper and to be able to compete in the international economic arena in light of globalisation and NAFTA is for it to grow and acquire multinational companies, taking advantage of their infrastructure and rapidly training Mexican workers for new job posts.  At the same time, to put an end to the shameful social differences and poverty existing in Mexico, changes have to occur in the political system.

3.         Cabal has held the view that Mexico’s authoritarian presidential system, supported by the Elite will never allow a true democracy to develop.

4.         Cabal believed that Colosio as presidential candidate would have reversed the attitude of the Federal Government to the south east and set the grounds for long term development programs for the extended south eastern region. As well as address the shameful social differences and poverty existing in Mexico through many other actions. the promotion of business operations conducted by Mexicans.  He therefore strongly supported him as an aspiring candidate and eventually as a formal candidate for the Presidency of Mexico.

5.         Cabal believed that the President should, and believed that Colosio would:

            5.1       observe the separation of powers doctrine expressed in the Mexican Constitution and not exercise power disproportionate to the role given to him by the Constitution.

            5.2       Play an active role in the consolidation of democracy in Mexico.

6.         Cabal has held the view that a person is entitled

            6.1       to have his own views on the role of government in the development of the Country.

            6.2       to support those politicians who share his views.

            6.3       To challenge acts of government where they may involve excess or abuse of power.

7.         Cabal believes that the only way to achieve his views is to be able to maintain his independence and autonomy, whilst at the same time developing his business interests without being controlled by the Elite, and therefore is entitled:

            7.1       not to accept unofficial directions from government, where those directions contradict his views.

            7.2       conduct his business activities independently from traditional political power groups.

CONDUCT CONSTITUTING THE EXPRESSION OF HIS POLITICAL OPINION.

1.         Development of businesses in the south east designed to encourage self sufficiency, productivity and wealth generation – shrimps, bananas, parquetry etc.

2.         Acquisition of Banco BCH (renamed Banco Union), and eventually of Grupo Financiero Cremi, including Banca Cremi, to strengthen the Banking project.

3.         Purchase of Del Monte as the multinational entity designed to increase Mexican economic competitiveness and the creation of work posts.

4.         Resistance to unofficial directions from government, (tender of Banco Union political contributions).

5.         Having maintained independence and autonomy from traditional political power groups.

6.         Political contributions to Colosio.

7.         Having resisted, to a certain extent, pressure by the ruling party to support Zedillo as a candidate with cash donations, and only having done so in a different fashion.

8.         The public rejection of the Mexican government’s attempt to blame him for the 1994 banking and economic crisis.

9.         The refusal to surrender to the pressure and serious threats put on him and his family in Spain.

10.       The conduct in Mexico of a vigorous defence to the criminal charges.

11.       The filing of charges by Cabal (since early 1995) regarding abuse of power conduct attributed to high government officers.

12.       The conduct of his defence to the request for his extradition.

13.       The open statements made with reference to political contributions, in a defiance attitude towards the system.”

 

237               Judgments about the credibility of the asserted opinions must be based upon documentary exhibits and the written record of testimony in the s 19 proceedings. It is sufficient to say for present purposes that I am not satisfied, on the evidence presented, that there are substantial grounds for concluding that Cabal held any political opinion which he expressed or acted upon in any way that was of great significance to the Mexican government.  Certainly there was nothing in my opinion, which would provide such grounds for concluding that the investigations, complaints and warrants issued were procured or pursued by reason of any expression or action upon political opinion held by him at that time and which played a part in the decision of the relevant Mexican authorities to institute the prosecutions now in question and request the extradition of the applicant.

238               Such grounds are not made out by the fact that the President may have taken a personal interest in the case.  His interest would not be surprising given the magnitude of the alleged offences which must be accepted for present purposes.  Nor would it be surprising given the fact that subsequent to the initiation of the prosecutions Cabal has made public statements about his involvement in the financing of the presidential campaigns.  That does not convert the prosecution of him and Pasini into a prosecution on account of his alleged political opinions.

239               Much was made by the applicants of the speed with which certain of the warrants were issued.  Even if that be accepted, it does not point to a political motive for the prosecutions.  Had Mexico been determined to bring prosecutions for political motives, they might have been expected to select a narrow range of issuing judges thought to be compliant.  The warrants however, were issued by some fourteen different judges and one magistrate.  As Mexico pointed out in its submissions, the evidence establishes that the legal process in respect of each arrest warrant involved a number of steps and that each step concerned or involved different people.  These included:

1.         An investigation by the National Banking Commission which included in respect of the banking offences, the provision of a technical opinion as to whether the offence had been committed.

2.         A preliminary investigation by the Public Ministry, the investigative prosecutor needing to be satisfied that the alleged perpetrator was “probably responsible” for the commission of the relevant offence.

3.         An application to a judge resulting in the issue of an arrest warrant.  Here it is necessary for the Public Ministry to satisfy a judge that the alleged perpetrator is “probably responsible” for the commission of the offence identified in the application for the arrest warrant.

4.         A request for extradition.

As to the latter, the request was made by the Foreign Minister of Mexico, Rosario Green.  Roett says he has known her for twenty five years.  While he asserted that she would act in response to the directions of the PRI, because she is Foreign Minister, he denied any suggestion that she was corrupt.  I accept the submission for Mexico that there is no feasible basis upon which the inference could be drawn that the purpose of prosecuting or punishing Cabal and Pasini for their asserted political opinions could have infected the process leading up to and including the request for extradition to the extent that it could be said to be attributable to the requesting country.  As has been pointed out also, there is evidence that the criminal justice system in Mexico has a review and appeal procedure which has been accessed by Cabal’s co-accused.  The obtaining by them of favourable judgments does not establish any lack of bona fides on behalf of Mexico, but rather gives support to the proposition that the system is capable of yielding results favourable to accused, even those associated with persons pursued for allegedly political reasons.  Moreover, following his arrest on 11 November 1998, Cabal commenced amparo proceedings before a federal judge alleging breach of his rights in respect of the issue of certain warrants.  On 30 June 1999, the submission was upheld by a federal judge that the charges the subject of arrest warrant number three in Cabal Request number 2, had been filed outside the prescribed time period.  That judgment is the subject of review.  It is not a matter which can be canvassed in these proceedings.

240               The applicants also relied upon the statements attributed to Ponce which they say indicate that Cabal’s was a politically motivated prosecution.  Assuming Ponce said what Cabal and Pasini attributed to him, the most likely construction to be placed upon his words is that of an investigator trying to pressure a suspect into cooperation.  I do not accept that his comments can be relied upon to provide substantial grounds for believing that the extradition request was made because of Cabal’s political opinions.  And in one sense of course, it was correct to say that Cabal’s problem was a political one.  That is entirely explicable in terms of the high profile and scale of the offences alleged against him.

241               In relation to the other submissions of the applicants, I do not regard Cabal’s disclosure of contributions to the presidential campaigns of Colosio and Zedillo, the denial of those disclosures by President Zedillo, the public response by the PRI in its advertisement or the statement that Zedillo was specifically interested in Cabal’s case, as providing substantial grounds for believing that the request had to do with his political opinions.  The same conclusion applies to Pasini whose political opinions are at their highest to be imputed only from his association with Cabal. 

242               Having so concluded and having regard to the views I have formed about the “political opinions” of Cabal and Pasini, I am satisfied that there are no substantial grounds upon which it may be said that the request for their extradition is made for the purpose of prosecuting or punishing them for their political opinions.

243               The objection raised under s 7(c) requires the applicants to show substantial grounds for believing that they may be prejudiced at the trial or prejudiced, detained or restricted in their personal liberty by reason of their political opinions.  In this case the dominant feature is the seriousness of the offences which with each is charged.  Given the weight I attach to that and the relative insignificance, to the Mexican government, of the asserted political opinions, actual and imputed, I do not accept that there are substantial grounds for the objection.  It is to be born in mind that the grounds must relate to prejudice inflicted through the judicial process and ancillary processes relating to the custody and security of the applicants.  It might be argued that there is a possibility of some prejudice in relation to one or other of the elements of s 7(c) associated with the high profile nature of the case and the possible embarrassment it has generated to the Mexican government.  But these wider considerations are beyond the scope of the extradition objection which is necessarily linked to political opinions of the applicants.  Those wider considerations are a matter for the Attorney-General.

Judicial Review

244               In addition to the application for review under s 21, judicial review of the magistrate’s order was sought under s 39B(1A) of the Judiciary Act 1903.  The grounds upon which that review is sought are largely subsumed in the grounds for review under s 21.  Given the scope of that review as a rehearing de novo, nothing in my opinion is to be gained by entering upon any separate consideration of the grounds raised in support of the judicial review.   The various materials said to have been wrongly excluded by the magistrate have been conveniently set out in seven files prepared by the first respondent which also included the applicants' submissions, the first respondent’s submissions and the rulings made by the magistrate at the extradition hearing.  The documents excluded were, in my opinion, rightly excluded on grounds of want of probative value and considerations of fairness.  A major item which it was sought to introduce into evidence was a report prepared by Michael W Mackey on the Comprehensive Evaluation of the Operations and Functions of the Fund for the Protection of Bank Savings “FOBAPROA” and Quality of Supervision of the FOBAPROA Program 1995-1998. The review of the FOBAPROA program was commissioned by the Congress of Mexico through a hiring committee which engaged Mackey in September 1998.  It contained various reflections upon the operation of that process and was adduced to support testimony to be given by Professor William Ford, a Professor of Finance at Middle Tennessee State University. Professor Ford’s opinion was directed to, inter alia, apparent lack of even handedness on the part of regulatory authorities in dealing with Banco Union as against other banks.  His evidence would have involved assertions that certain loans, ultimately considered as irregular by the Banking Commission, had in fact been perceived as not irregular.  The author of the report not being called, and it apparently having a multiple authorship, no doubt based on inquiries, conversations and examination of documents, there were significant issues of fairness associated with its production and issues of probative value associated with the expression of opinions based on the report.  Even allowing for the “substantial grounds” rubric of s 7, I think the report and the evidence based upon it were rightly excluded.  In addition it appears that Professor Ford’s evidence may well have entered into the question whether it was likely that some of the offences alleged had in fact been committed.

245               By motion on 10 August 2000 I was invited by counsel for the applicants to consider additional material relating to the entry of the equivalent of a “nolle prosequi” in relation to certain of the offences alleged against Cabal.  I expressed my provisional opinion then that the material proffered would take the Court into an area of inquiry prohibited by s 19(5) and in any event an issue which was not put before the Court in the original extradition hearing before the magistrate.  On that basis, I confirm my provisional view that the material cannot be considered.

CONCLUSION

246               For the preceding reasons, the decision of the learned magistrate will be confirmed, the application for judicial review dismissed and the applicants required to pay the costs of the first respondent.  There will be liberty to the Commonwealth to apply for an order for costs in respect of its intervention on the constitutional question.  The offences in respect of which eligibility for surrender has been determined are those set out in the annexures to the learned magistrate’s order and they are annexed to the minute of order at the commencement of these reasons.

  

I certify that the preceding two hundred

and forty six (246) numbered paragraphs

are a true copy of the reasons for

judgment of his Honour Justice French:

Associate:

Dated:

Counsel for the  First and Second Applicants:	Mr JWK Burnside QC with Mr J Manetta and Mr N Aughterson
Solicitor for the First and Second Applicant:	Phillips Fox
Counsel for the First Respondent:	Mr GAA Nettle QC with Mr G Gilbert and Ms MM Gordon
Solicitor for the First Respondent: Counsel for the Commonwealth Attorney-General  Intervening: Solicitor for the Commonwealth Attorney-General  Intervening:	Commonwealth Director of Public Prosecutions Mr D. Bennett QC with Mr M Moshinsky Australian Government Solicitor
Dates of Hearing:	3-13 April 2000
Date of Judgment:	29 August 2000

INDEX

 

Introduction                                                                                           1  -  3

Factual Background                                                                             3  - 36

The Offences Alleged                                                                         36 - 41

Statutory Framework                                                                         41 - 53 

The Treaty of Extradition between Australia and Mexico               53 - 55

Grounds for Review                                                                           55 - 58

Constitutional Validity of the Extradition Act                                  58 - 68

Approach to Construction and Application

  of the Extradition Act                                                                      68 - 73          

Production of the Supporting Documents 73 - 75

Nature of the Purported Warrants                                                    75 - 82

Translation – The Requirements of the Act                                      82 - 87

Authentication – The Requirements of the Act                                87 - 92

Want of Authentication                                                                      92 - 94

                 Want of Authentication – First Cabal Request               95 - 98

                 Want of Authentication – Second Cabal Request           98

                 Want of Authentication – Pasini Request                        98 - 99

                 Want of Authentication – The Statements                      

                 Of Offence and Penalty and Statements of conduct        99

 

Sufficiency of Translation          99 - 100

Illegibility and Incompleteness                                                          100 - 102

                 Illegibility and Incompleteness – First Cabal Request   102 - 103

                 Illegibility and Incompleteness – Second Cabal Request           103

                 Illegibility and Incompleteness – Pasini Request            103

                 Illegibility and Incompleteness – Statements of

                 Offence and Penalties                                                        103 - 104

 

Legal Insufficiency of Statements of Conduct  104 - 107

Extradition Objections – Prosecution or Prejudice by Reason

  Of Political Opinion                                                                          107 - 123

Judicial Review                                                                                   123 - 124

Conclusion                                                                                           124 - 125