FEDERAL COURT OF AUSTRALIA

Cabal v United Mexican States [2001] FCA 427

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 (Cth) – request for extradition – supporting documents – no inquiry into foreign law – criteria for characterisation of documents issued by requesting country as “warrants” – statement of conduct – sufficiency – more than one offence in a statement – extradition objections – purpose of prosecution or punishment for political opinions – assessment on premise that offences committed – substantial grounds for believing – 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 powers – nature of review.

WORDS AND PHRASES – “substantial grounds for believing”, “political opinions”.

Extradition Act 1988 (Cth) ss 3, 7(b), (c), 19(2)(d), 19(3)(a), 19(3)(c)(ii), 19(5), 21(6)(d), 22

Judiciary Act 1903 (Cth) ss 39B(1A)

Evidence Act 1995 (Cth) ss 135, 136

Cabal v United Mexican States (No 3) [2000] FCA 1204 at pars 4, 8, 32, 42, 85-87, 104, 144-145, 153, 216, 218, 219, 220, 226, 235, 237, 238, 239, 240, 241, 243, 244 and 245

Bertran v Vanstone (2000) 173 ALR 63 at 76-88 referred to

Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 538 referred to

Republic of South Africa v Dutton (1997) 77 FCR 128 at 136 referred to

The Queen v Quinn Ex parte Consolidated Foods Corporation (1977) 138 CLR 1 at 6, 8 and 18 followed

McDade v The United Kingdom [1999] FCA 1868 at par 22 referred to

Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 290, 299, 300 and 303 referred to

The Queen v Davison (1954) 90 CLR 353 at 366 followed

Nicholas v The Queen (1998) 193 CLR 173 at 207 followed

Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 360 followed

The Queen v Trade Practices Tribunal, Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 373, 378 and 390 followed

Narain v Parnell (1986) 9 FCR 479 referred to

Schlieske v Federal Republic of Germany (No 2) (1987) 76 ALR 417 at 422 referred to

Todhunter v United States of America (1995) 57 FCR 70 at 80 referred to

Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 483, 485-486, 488-491, 505, and 521-522 followed

Papazoglou v Republic of the Philippines (1997) 74 FCR 108 at 129 and 139 followed

Federal Republic of Germany v Parker (1988) 84 FCR 323 at 341-2 referred to

National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209 at 226 referred to

Peniche v Vanstone (2000) 101 FCR 112 referred to

Rahardja v Republic of Indonesia [2000] FCA 1297 at pars 75-77 referred to

De Bruyn v Republic of South Africa (1999) 96 FCR 290 at 292-293 referred to

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-391 referred to

Foster v Minister for Customs and Justice (2000) 200 CLR 442 at 464-467 referred to

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

Fernandez v Government of Singapore [1971] 1 WLR 987 referred to

Hempel v Attorney-General (Cth) (1987) 29 A Crim R 133 at 663-664 referred to

Todhunter v Attorney-General (Cth) (1994) 52 FCR 228 referred to

Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at par 75 referred to

Schtraks v Government of Israel [1964] AC 556 at 589 referred to

Ujiie v Republic of Singapore [1995] FCA 855 referred to

Stanton v DPP [1993] FCA 20 referred to

Bou-Simon v Attorney-General (Cth) (2000) 96 FCR 325 referred to

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

R v Martin [1998] AC 917 referred to

Dutton v Republic of South Africa (1999) 84 FCR 291 at 303 referred to

Bennett v Government of United Kingdom [2000] FCA 916 at pars 107-198 referred to

Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 412-413 referred to

CARLOS CABAL PENICHE AND MARCO PASINI BERTRAN v UNITED MEXICAN STATES, LISA M HANNAN M and ATTORNEY-GENERAL (COMMONWEALTH) (Intervening)

V 700 of 2000

HILL, WEINBERG AND DOWSETT JJ

18 APRIL 2001

MELBOURNE

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellants pay the first respondent’s costs of and incidental to the appeal.

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

TABLE OF CONTENTS

Par no

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     The appellants, Mr Carlos Cabal Peniche (Mr Cabal) and Mr Marco Pasini Bertran (Mr Pasini), appeal against the decision of a Judge of this Court (French J) dismissing their application for review of a decision of the second respondent, a magistrate and affirming her decision that each of them was eligible for surrender to the first respondent, the United Mexican States (“Mexico”) in relation to a number of extradition offences. The judgment of his Honour which is the subject of this appeal is Cabal v United Mexican States (No 3) [2000] FCA 1204.

The background facts

2                     Apart from a minor and insignificant transcription error which will shortly be noted, there was no challenge to the statement of background facts in the judgment of French J, much of which was derived from material emanating from Mr Cabal. That statement is contained in paragraphs 6 to 83 inclusive of his Honour’s Reasons for Judgment. In the interests of brevity we do not repeat it in its entirety. We propose, rather, to attempt a summary of that statement in order that the issues debated before us can be more readily understood without regard back to the judgment under appeal. To the extent that the summary here set out is necessarily incomplete, the full text of the statement, which we accept without reservation, can be taken to have been incorporated by reference into these reasons.

3                     Mr Cabal is a citizen of Mexico and describes himself as an entrepreneur.

4                     Mr Pasini is likewise a citizen of Mexico and is Mr Cabal’s brother-in-law. They were both arrested in Melbourne by the Australian Federal Police following requests for their extradition received from Mexico.

5                     After a difficult start Mr Cabal was, at various times, involved in real estate subdivision, the export of shrimp to the United States of America, banana production and export. He later diversified into pineapples and papayas. These activities were largely in the south-eastern states of Mexico, (especially Tabasco, Chiapas and Campeche) a region in respect of which he claimed to have developed a particular interest. That region had been of little interest as an area of investment and development in the traditional money centres in the centre and in the north.

6                     In 1991 Mr Cabal met President Salinas, then President of Mexico who, in 1990 announced his intention to privatise Mexico’s banks. Mr Cabal organised a group to buy a bank that could help finance development in the south-east of Mexico. A tender on behalf of the group to purchase a bank, then known as Banco BCH and subsequently referred to as Banco Union was ultimately successful. In achieving success, Mr Cabal alienated a Mr Creel, who had been a competitor in the tender process and who had the support of a Mr Aspe and a Mr Ortiz, officials charged with carrying out the President’s privatisation program. However, his Honour rejected a suggestion that Mr Cabal had engendered some long term resentment on the part of government because of his tactics in relation to the bid. Mr Cabal ultimately became president of Banco Union.

7                     Subsequently when the United States fresh food conglomerate, Del Monte Fresh, became available for purchase Mr Cabal began work on assembling a consortium which, in November 1992, acquired that conglomerate for half a billion dollars.

8                     Following what it seems was a routine audit of Banco Union a letter was sent to the Director-General of that bank, Mr Collantes Ortega on 27 July 1993 advising of irregularities noted during that audit. According to Mr Cabal the letter was not raised with him at that time by Mr Collantes.

9                     Around June or July 1993 a Mr Ramundo Florez, Chairman of the Board of Banco Cremi called Mr Cabal suggesting that he form a group of shareholders in Banco Union to purchase the Cremi Finance Group including Banco Cremi. Approximately $550 million was needed for the transaction. Approval of the President of Mexico and the Finance Minister was required. That approval was granted and the purchase took place in November 1993. Mr Cabal then set about obtaining the necessary approvals to a merger and float of the two banks.

10                  A presidential election was due in that year. As the learned primary judge noted, for some seventy years Mexico had been governed by the one party, the Institutional Revolutionary Party (PRI). It was only in 1997 that opposition parties had been represented at all in the Mexican Congress. There were three candidates for President to succeed President Salinas, of whom one was Mr Donaldo Colosio. According to Mr Cabal he arranged for a contribution to Mr Colosio’s campaign of $US15 million. The donation was made on or about 26 July 1993 through the medium of a trust account which the then Managing Director of Banco Union was instructed to arrange. The Managing Director died around December 1993.

11                  In or around November 1993 a proposal was put to a meeting of a committee of the bank (referred to as the Board of Administration) for the creation of a management committee to be the administrative and executive organ responsible for the day-to-day operations of the bank and the direction and administration of the Cremi group. That committee was subject to the direction of the Board of Administration of Banco Union. The committee was to function as a high level Credit Approval Committee. Mr Cabal, as a member of the committee had a casting vote.

12                  Mr Colosio was endorsed as the official PRI presidential candidate. Mr Cabal offered, so he said, additional support to the value of $US5 million. However, on 23 March 1994 Mr Colosio was assassinated. A Mr Ernesto Zedillo was nominated by Mr Salinas as his successor. Mr Cabal was less forthcoming in raising an additional donation for Mr Zedillo.

13                  Another letter referring to irregularities was sent by the National Banking Commission to Banco Union on 29 April 1994 marked for the attention of a Mr Bailey as President of the Committee of Direction of the Bank. So far as Mr Cabal could remember Mr Bailey had said nothing to him about the letter.

14                  In May 1994 Mr Cabal was pressed to make the $US5 million contribution that he had intended to give to Mr Colosio’s campaign available for Mr Zedillo’s campaign. The contribution was to be in cash or by way of small deposits because of electoral laws which regulated campaign deposits. Mr Cabal asked an officer of the Bank to work something out. Faced with another demand to make a contribution Mr Cabal gave the maximum amount then permitted by law, being one million pesos (approximately $US300,000). He was asked to give further support but declined to do so, on the stated basis that the Bank was already contributing to the campaign. During the campaign Mr Cabal accompanied Mr Zedillo on a tour to Tabasco. However, his relationship with Mr Zedillo was not close.

15                  A few days later, on 26 July, a meeting took place at the Finance Ministry to discuss irregularities said to have been discovered by the audit. According to Mr Cabal he was told by Mr Ortiz to make all efforts to clear up whether the irregularities had occurred (not as par 42 of the judgment below says mistakenly “where the irregularities had occurred”). He and the General Manager, a Mr Acala, who also attended the meeting were told to maintain absolute secrecy about the administrative intervention by the National Banking 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. Mr Ortiz asked both Mr Cabal and Mr Acala to sign a document of formal notification of the intervention. At the meeting, Mr 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’s shares would not be able to be listed. According to Mr Cabal he signed the notification of intervention as it was the only way that ultimately the float would be able to proceed. Mr Ortiz said, according to Mr Cabal, that he and Mr Acala would have every opportunity to clear up any alleged irregularities. He said that he had no difficulty with that as the Finance Ministry was aware of all the Bank’s operations in any event. His Honour found that it was unlikely that Mr Cabal did not appreciate the potential seriousness of the allegations contained in the document to which, by his signature, he had assented.

16                  The document which Mr Cabal signed made it clear that the irregularities drawn to the Bank’s attention related to loans granted for the purchase of shares in Banco Union and the Cremi group. By signing, Mr Cabal, according to the document, “verbally accepted” the existence of irregular operations which implied the “financing, the excessive financing to various people in relation to the acquisition of companies”. Administrative intervention was noted to have been authorised by the National Banking Commission and Mr Cabal was to give assistance to the intervener to evaluate the impact of these transactions on the financial situation of both companies.

17                  The day after signing the irregularities document Mr Cabal obtained a visa from the French Consul General. Subsequently he left Mexico, apparently to negotiate a personal line of credit to enable him to acquire Del Monte Foods, a canning operation and merge it with Del Monte Fresh. The overall price for the acquisition was $US1 billion. At the elections which took place on 21 August 1994 while Mr Cabal was in Europe Mr Zedillo was elected President of Mexico.

18                  What was said on behalf of Mr Cabal to be a formal complaint against him was issued from the Ministry of Finance on 29 August 1994 and delivered to the Federal Public Prosecutor at the Attorney-General’s office on the next day. The prosecutor applied on 31 August to a judge, the Seventh District Judge for the Federal District in Criminal Matters who issued a warrant or order of apprehension on that date relating to Mr Cabal and nine other persons alleging offences against articles 112, 113 and 114 of the Mexican Law of Credit Institutions. The factual recital grounding the issue of the warrant comprised about 142 pages.

19                  Mr Cabal returned to Mexico to meet Dr Aspe, the Minister of Finance. Mr Cabal denied knowledge of the irregularities and claimed Banco Union was operating normally. Dr Aspe made it clear that the authorisation for a float of the shares on the stock exchange would not proceed until the irregularities were cleared up. At a subsequent meeting with another official, Mr Fernadez, Mr Cabal was told that the decisions concerned with his case would be taken at a presidential level for it was an extremely big case for Mexico having regard to the companies that Mr Cabal was managing. Mr Fernadez told Mr Cabal that he should be ready for another appointment to discuss matters. Mr Cabal said that he would have to return to Europe to be with his family and would need adequate notice. He said that he would place fully before Mr Fernadez any information the latter wanted about Banco Union. On the same day Mr Cabal consulted a criminal lawyer.

20                  A second application for a warrant or order of apprehension was made to the Seventh District Judge on 2 September 1994. The recital of facts backing the warrant amounts to some 46 pages. The apprehension of Mr Cabal and a number of other people was required 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”.

21                  Mr Cabal departed Mexico on 1 or 2 September 1994 for Miami where he spent a few hours and thence travelled to Europe to join his family. He has not been back to Mexico since his departure.

22                  On 31 August 1994 Mr Pasini had also departed Mexico for Monaco where he joined his sister. He claimed that he had been invited to see his sister on holidays and also that he had been offered a job outside Mexico with Del Monte. He did not take up that position. His Honour found the account given by Mr Pasini for leaving Mexico inherently improbable.

23                  On 1 September 1994 the National Banking Commission announced its intervention in the affairs of Banco Union. There was widespread publicity in Mexico surrounding these events and Mr Cabal’s departure. Mr Pasini decided to stay outside Mexico with his sister, leaving Monaco for France.

24                  A third warrant or order of apprehension was issued on 14 September 1994 against Mr Cabal and others “for their probable criminal responsibility in the commission of the crimes contemplated and penalised by article 112, fraction V, 112, fraction B paragraph e) and the same number in its fraction VI of the Law of Credit Institutions”.The complaint was made on 7 September 1994, the application for the issue of the warrant or order of apprehension on 8 September 1994 and the warrant issued on 14 September 1994. On 9 October 1994 a fourth warrant was issuedby yet another judge. The complaint for this warrant was made on 30 September 1994 and the issue of the warrant applied for on 4 October 1993. The warrant alleged that Mr Cabal and another had breached article 112, section V, first paragraph and article 112, section V, clauses c), d) and e) of the Credit Institutions Law.

25                  On 5 November 1994 Mr Cabal arranged for the publication of an open letter in the Mexican press. In it Mr Cabal claimed that he was being attacked without reason; that the actions of the authorities were arbitrary and born from resentment. He claimed that he wished the truth to be known and “for lawfulness to prevail over the powerful personal interests that, feeling affronted, have led to my persecution”. He claimed that he had fled from injustice and asserted that the justice system did not always act with independence. He denied committing any of the “absurd” crimes of which he was accused. The letter, in translation, continued:

“Clearly identified interests, seeking tax concessions, [an expression meaning ‘people who had sold themselves to the government’] 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.”

26                  The letter spoke of Mr Cabal’s “duty” to provide a chance for small and medium-size entrepreneurs of the South Eastern Region to take part in the intensive development of that region so that it could obtain progress comparable to other regions in the country. He said that by acting independently he had earned the enmity and rancour of the representatives of the most exclusive and conservative sections of the country who considered the South Eastern Region Group to be a collection of incompetent, uneducated provincial men.

27                  Between January 1995 and 24 October 1995 a further three warrants or orders of apprehension were issued by judges against Mr Cabal and others alleging various contraventions of the Credit Institutions Law. An eighth warrant issued on 12 August 1996. The original complaint relating to this warrant was made on 20 May 1996 apparently from within the office of the Federal Public Prosecutor. Three further warrants were issued against Mr Cabal on 25 November and 9 and 10 December 1997. A twelfth warrant was issued on 13 April 1998 and a thirteenth on 15 May 1998. These thirteen warrants supported what is referred to as the first extradition request.

28                  In the meantime Mr Pasini in the company of his sister and a Spanish lawyer met a Mr Juan Miguel Ponce Edmondson (“Mr Ponce”), an officer of Mexican Interpol. Mr Ponce told Mr Pasini that there was no chance of fighting the government. It was like David and Goliath. The only way forward was to negotiate with him. He told them 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”. He advised that Mr Cabal should give himself up. If he did not there would be serious consequences for him and those close to him or who helped him. A subsequent meeting was arranged with Mr Ponce who was asked which politician Mr Cabal had offended. Mr Ponce gave no reply.

29                  In October 1995 Mr Pasini’s apartment in France was searched by two French policemen and a Mexican police officer. He was taken to the police station and kept there for two and a half days and interviewed. Mr Pasini subsequently went to Spain. While there he was asked where Mr Cabal was. The question was posed by telephone by the same Mexican officer. He claimed to have been threatened by the officer because of his non-cooperation. The officer claimed, so Mr Pasini said, that he would be very happy to do damage to him personally.

30                  The first of two warrants against Mr Pasini was issued on 18 January 1996 following a review of a decision by the Seventh District Criminal Court for the Federal District denying issue of a warrant. The warrant alleged contravention by Mr Pasini 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 an order of apprehension was made on 24 October 1995. On 29 August 1996 a second warrant was issued against Mr Pasini following an appeal to the Third Unitary Circuit Court against the denial of a warrant. Although the appeal denied issue of the warrant against four of the persons named it authorised issue against Mr Pasini and another.

31                  On 11 November 1998 Mr Cabal was arrested by the Australian Federal Police. He was driven to a carpark near Luna Park at St Kilda where another vehicle with three Mexicans was waiting. One of these was Mr Ponce. The other two were introduced to Mr Cabal as a General and a member of Interpol respectively. While the Australian police withdrew Mr Ponce told Mr Cabal, according to the latter, that he knew Mr Cabal’s problem was a political one. If Mr Cabal were willing to return voluntarily to Mexico his family would be able to remain in Australia. Mr Cabal was unable to talk to his wife by telephone at this time. On the same day Mr Pasini’s car was intercepted near Mr Cabal’s Brighton home. Mr Ponce is said to have said to Mr Pasini in Spanish: “So you’re Marco Pasini. Well I’ve really fucked you now and that’s how you’re going to finish up.”

32                  Since their respective arrests in November 1998 both Mr Cabal and Mr Pasini have been in custody at Port Phillip Prison in Victoria, although Mr Pasini was recently granted bail pending the determination of this appeal by this Court.

33                  There were two extradition requests received from Mexico in respect of Mr Cabal. The first on 6 January 1999 relied upon the initial thirteen warrants referred to above. The second, received on 11 February 1999 relied upon three warrants already mentioned and a fourth issued by the Second District Judge on 7 January 1999. In respect of Mr Pasini there was only one request, received on 20 January 1999 relying on the two warrants issued against him in Mexico.

34                  On 23 March 1999 Mr Cabal released a media statement, which was also placed on a website that he had established. In it Mr Cabal claimed that there had been unfair and undeserved victimisation of himself by the Mexican government, whose only purpose was, he said “to distract the Mexican people from the disastrous failures of economic policies implemented by the financial authorities”. He said he had been targeted because of his political views. He continued:

“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 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.”

Mr Cabal asserted there was no missing money and the charges were a fabrication which could quickly be proved wrong. He claimed to be the subject of political persecution, saying:

“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.”

35                  An article was published in Mexico said to be based on an interview with Mr Cabal in the Miami Herald of 29 May 1999. The article disclosed that Mr Cabal had contributed $25 million to the government party in 1994 including $5 million for President Zedillo’s campaign. Mr Cabal is reported as saying that donations of this kind were normal in Mexico and part of the system functioning between politicians and business people. The article reported Mr Cabal’s claim that he was the victim of political persecution, because he was not as enthusiastic about Zedillo’s policies as he was about Colosio’s. The article quoted a government spokesman as rejecting the claims of financial impropriety or political retribution.

36                  Mr Cabal’s media statement was responded to by the PRI on 15 July 1999. It claimed that intervention in the affairs of Banco Union had been made necessary by financial losses which Banco Union had suffered as a result of illegal operations carried out by Mr Cabal. An embargo had been placed on Mr Cabal’s assets and accounts throughout the world so it was said. The response continued:

“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.”

The facts, so the advertisement claimed, established that Mr Cabal was not being prosecuted for political reasons but because he was an alleged offender.

The submissions before the learned primary Judge

37                  There were numerous objections raised before the learned primary judge to the surrender of both Mr Cabal and Mr Pasini. As summarised by his Honour these were specifically:

“1. That the Extradition Act 1988 is unconstitutional.

2. That the 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. (an extradition defence)

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

Summary of the offences alleged against Mr Cabal – the first extradition request

38                  The notice issued by the Acting Attorney-General to the magistrate under s 16 of the Extradition Act 1988 (Cth) (“the Act”) summarises the offences said to have been committed by Mr Cabal and which relate to the first extradition request as follows:

“1. 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 (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).”

39                  His Honour adopted, as a convenient overview of the offences, a memorandum prepared by the Attorney-General’s Department and provided to the Minister as set out in a judgment of Kenny J in Bertran v Vanstone (2000) 173 ALR 63 in proceedings for judicial review of the Minister’s decision to issue the notice under s 16, in the following terms, so far as relates 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.”

Summary of the offences alleged against Mr Cabal – the second extradition request

40                  The notice issued by the Acting Attorney-General to the magistrate under s 16 of the Act summarises the offences said to have been committed by Mr Cabal and which relate to the second extradition request as follows:

“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)”

41                  The memorandum prepared by the Attorney-General’s Department as set out in the judgment of Kenny J to which reference has already been made, so far as relates to the second extradition request is in the following terms:

“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.”

Summary of the offences alleged against Mr Pasini

42                  The notice issued by the Attorney-General to the magistrate under s 16 of the Act summarises the offences said to have been committed by Mr Pasini in respect of which extradition is requested 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.”

43                  The memorandum relating to the extradition request in relation to Mr Pasini is in the following terms:

“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.”

The Legislation

44                  The Act was enacted in 1988 to codify the law of extradition of persons from Australia to what are referred to in the Act as “extradition countries” and to provide for proceedings (see s 3(a)):

“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;”

Mexico is an extradition country for the purposes of the Act, see Regulation 4 of the Extradition (United Mexican States) Regulations 1991 and the definition of “extradition country” in s 5 of the Act.

45                  For present purposes the process of extradition commences with an application made on behalf of the extradition country to a magistrate for the issue of a warrant of arrest. Where, as here, the magistrate is satisfied that the person named by the extradition country is an “extraditable person” the magistrate will issue a warrant and send to the Attorney-General a report stating that a warrant has issued: (ss 12(1) and (2)). Once the arrest has taken place the person arrested is required to be brought before a magistrate when he or she may be remanded in custody or on bail pending the conduct of the proceedings: ss 15(1) and (2).

46                  At or around the same time the Attorney-General will have received from the extradition country a request that the person be extradited: s 16(1). The Attorney-General may, if of the opinion that the person is “an extraditable person” in relation to that country and that the conduct constituting the extradition offence if it had taken place in Australia at the time the extradition offence was received would have constituted an extradition offence in relation to Australia, then give notice to a magistrate that a request has been received.

47                  Where, as here, the person arrested does not consent to the surrender and an application is made by the extradition country to the magistrate for proceedings to be conducted under s 19 the magistrate is then required to:

“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.”

48                  Eligibility for surrender is established only if the provisions of s 19(2) of the Act are satisfied. First certain formal matters must be satisfied. These are the production of the documents referred to in ss 19(2)(a) and (b). Secondly the requirement often referred to as the double criminality requirement must be satisfied, namely that the magistrate be satisfied that if the conduct constituting the offence, or equivalent conduct, had taken place in that part of Australia where the proceedings are being conducted at the time the extradition request was received the conduct would have constituted an extradition offence in relation to that part of Australia. Finally, eligibility will not be established if the person satisfies the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence. The expression “extradition objection” is defined in s 7 of the Act, relevantly, to be an objection where:

“(b) the surrender of the person, in so far as it purports to be sought for the extradition offence, is actually sought for the purpose of prosecuting or punishing the person on account of his or her 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;”

49                  Section 19(5) of the Act provides:

“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.”

50                  Where the magistrate determines that the person is eligible for surrender in relation to the extradition offence or one or more extradition offences the magistrate is required to order that the person be committed to prison to await surrender.

51                  Section 21 of the Act gives to a person committed by the magistrate to prison to await surrender the right to apply to this Court, or the Supreme Court of a State or Territory for a “review” of the magistrate’s order. The Court may by order confirm the order of the magistrate or quash it and order the release of the person committed to prison. There is an appeal to the Full Court of this Court from the order made on the review and subject to special leave, an appeal lies ultimately to the High Court. In the review, and in any appeal to the Full Court or the High Court, s 21(6)(d) provides that:

“the court to which the application or appeal is made shall have regard only to the material that was before the magistrate.”

52                  Notwithstanding that the court on the review may confirm the order of the magistrate that the person be eligible for surrender to the extradition country, s 22 of the Act confers upon the Attorney-General a discretion to be exercised as soon as possible after the review, or any appeal has been finalised, to determine:

“whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences.”

53                  However, s (3) of that section provides that the eligible person is only to be surrendered in respect of an offence or offences if the Attorney-General is satisfied, inter alia that there is no extradition objection in relation to the offence.

The Judgment appealed from

54                  The learned primary judge decided all of the objections to the surrender adversely to Mr Cabal and Mr Pasini. The appellants filed numerous grounds of appeal putting in issue all of the matters argued before his Honour .

55                  On the third day of the hearing of the appeal, senior counsel for the appellants indicated that the appellants wished to abandon many of the grounds of appeal. In essence the abandoned grounds may be described as those which dealt with the question whether the documents tendered by Mexico complied with the formal requirements of the Act. The grounds of appeal which remain fall within the following headings:

1. Whether s 21 of the Act was invalid as conferring upon the Court an administrative, rather than a judicial function.

2. Whether the documents tendered by Mexico set out conduct constituting the offence as required by s 19(3)(c)(ii) of the Act.

3. Whether the documents referred to above as “warrants” fell within s 19(3)(a) of the Act.

4. Whether the learned primary judge erred in holding that the appellants had not made out an extradition objection under s 7 of the Act – that is a case that they had been proceeded against because of their political opinions.

56                  Relevant to the last of these grounds is the use to which material which the magistrate rejected might be put by a judge on review.

57                  Given the concession made by the appellants it is unnecessary to record the decision of the learned primary judge so far as it dealt with matters no longer at issue between the parties. The following summary of his Honour’s reasons is accordingly limited to the matters which remain in issue.

The judgment appealed from – The Constitutional question

58                  The learned primary judge rejected the submission that the Act was invalid as purporting to confer upon the Court an administrative function and to require the Court to exercise administrative powers in the performance of that function. While, in his Honour’s view the hearing before the magistrate was properly to be characterised as an administrative hearing (cf Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528), it did not follow that the Court in reviewing the order of the magistrate was exercising an administrative function.

59                  In reaching his conclusion French J accepted the description of the nature of the review to be undertaken by the Court as stated by Hill J in Republic of South Africa v Dutton (1997) 77 FCR 128 at 136 as follows:

“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.”

60                  In the learned primary judge’s view the function of determining whether a person was eligible for surrender, while being administrative when exercised by a magistrate, changed its nature when exercised by the Court. This “chameleon” change of character was like the exercise by the Court of a power to order a trade mark to be removed, an administrative function when exercised by the Registrar of Trade Marks, but a judicial function when exercised by a court, cf The Queen v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1. The nature of the exercise by the Court of its function is not affected by the discretion conferred upon the Minister under s 22 of the Act. The decision of the Court on the question whether a person was liable to surrender was a final and operative order and in giving it the Court was exercising the judicial power of the Commonwealth.

The judgment appealed from – Did the warrants set out the conduct constituting the offence?

61                  It was the Appellant’s case before French J that there had to be before the magistrate a duly authorised statement in writing which identified conduct which, if done by the person the subject of the proceedings would amount to the offence or the offences the subject of a warrant. However, it was submitted that the statements of conduct in the present case were deficient for a number of reasons arising under Mexican law, particularly in the description of the office alleged to have been held by Mr Cabal (a particular office being essential to the offence committed, so it was said) and in some cases in not alleging that, as a result of the alleged transactions said to have been entered into by Mr Cabal, the Bank had suffered loss. There was a related submission put to his Honour that the statements of conduct were not as required by the Act because each statement was not confined to the conduct constituting a discrete offence in Mexico.

62                  The latter point was the subject of a decision of the Full Court of this Court in McDade v The United Kingdom [1999] FCA 1868 and regarded by his Honour as decided by that case. Special leave to appeal that decision was granted by the High Court, but was subsequently revoked. The former point was, so it is submitted not dealt with by his Honour. That is not quite correct. In a separate, but interlocutory judgment given during the course of the hearing (see Cabal v United Mexican States (No 1) (2000) 171 ALR 649) his Honour had held that it was not open to the appellants in these proceedings to argue that the statements of conduct were deficient in stating the acts or omissions which constituted the offences said to have been committed in the foreign state, having regard to the provisions of s 19(5) of the Act. In extradition proceedings the magistrate, who is not an expert in foreign law, was not required to examine whether the conduct of the person as alleged did amount to a breach of the relevant law of the extradition country, see Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 299-300 and 303 and United States of America v Holt (1994)49 FCR 501 where it was said at 504 citing Zoellerat 299-300:

“The magistrate does not have to be satisfied that the ‘conduct constituting the offence’ as set out in the s 19(3)(c)(ii) statement constitutes the foreign offence described in the s 19(3)(c)(i) statement.”

The judgment appealed from – Were the warrants tendered “warrants” within the meaning of the Act?

63                  As to the question whether the so-called “warrants” fell within the use of that word in the Act, his Honour held that when used in the Act the word “warrant” had its ordinary meaning, namely a document issued, inter alia, by an officer of the State authorising a particular action, as, for example, empowering the police to make an arrest or carry out some action relating to the administration of justice. It was sufficient that the documents empowered a public officer to take a person into custody for an extraditable offence. It did not matter that other steps might be required to implement the order.

64                  In holding that the documents here in question satisfied the description of “warrants” French J preferred the evidence of Mr Rudolfo Dela Guardia Garcia (“Mr Dela Guardia”), a legal attache with the Mexican Embassy (and a former prosecutor in Mexico) who expressed the view that they were, in preference to the evidence of a Mr Del Toro, an academic with no recognised post-graduate qualifications and entitled to practice for only four years, who was of the view that they were not. According to Mr Del Toro, a three stage process was required in Mexico in association with the issue of a warrant, and without each stage having been completed the process was incomplete. His Honour also did not accept the evidence of a Mr Izunza who also expressed the view that the documents were not warrants in accordance with Mexican law because before a person could be arrested pursuant to them there was a need for a separate written direction from the Public Ministry. However, it is clear from the judgment at first instance that his Honour’s view did not turn upon the question of acceptance or otherwise of evidence, but rather upon the fact that merely because there were additional steps of a procedural kind necessary to give effect to the arrest of a person named in the warrants did not deprive the documents of their character as warrants for the purposes of the Act.

The judgment appealed from – Did the appellants make out an extradition objection?

65                  As noted earlier his Honour was of the view that neither of the appellants had made out a case that the purpose for which the surrender was sought was prosecution or punishment on account of political opinion as required by s 7(b) of the Act or that they might be prejudiced at the trial, or prejudiced, detained or restricted in their personal liberty by reason of their political opinions so as to make out an extradition objection under s 7(c) of the Act.

66                  At the commencement of French J’s discussion of the matter his Honour noted (and this part of his Honour’s judgment was heavily criticised) that having regard to s 19(5) of the Act which forbids the requested person from contesting that he or she had engaged in the conduct constituting the extraditable offence in respect of which the surrender was sought, the issue of whether there were substantial grounds for believing the request was made for the purpose of prosecuting or punishing a person on account of his or her political opinions had to be considered on the premise that the person had engaged in the conduct which constituted the offence. This, so his Honour said, therefore excluded debate that the charges were falsely fabricated because of the person’s political opinions.

67                  In his Honour’s view, therefore, it was necessary for the appellants to show that the extradition country sought the surrender so as to prosecute or punish them for the extradition offence, but did so on account of the political opinions that each held. That is to say the surrender had to be shown to have been sought for a double purpose; prosecution for the offence and because of the political opinions, the former purpose being accepted having regard to s 19(5).

68                  His Honour gave little weight to a substantial body of evidence that had been adduced by the appellants. Of greater significance to his Honour’s conclusion was that on the facts of the present case the offences alleged were serious and the amounts involved very large, indeed in excess of $US50,000,000. Indeed the case was one where, as his Honour observed, failure to prosecute would involve a dereliction of duty by the government or regulatory authority. Thus, his Honour said:

“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.”

69                  His Honour accepted that the expression “political opinion” should be given a wide meaning. However, his Honour was not satisfied on the evidence presented that there were substantial grounds for concluding that Mr Cabal held any political opinion which he expressed or acted upon in any way that was of great significance to the Mexican government. The fact that the President of Mexico may have taken a personal interest in the case was, his Honour said, not surprising given the magnitude of the offences alleged to have been committed. The fact that the warrants may have issued with great speed likewise did not point to a political motive, particularly when it was observed that they were issued by some fourteen judges and one magistrate, and involved steps taken by a number of different persons. To say that the problems faced by Mr Cabal were political was entirely understandable in his Honour’s view having regard to the nature and scale of the offences alleged.

70                  His Honour also rejected a submission that the issue of disclosure of contributions to political campaigns and the public response thereto provided substantial grounds for believing that the requests for extradition were motivated by political opinions expressed by or imputed to Mr Cabal.

The motion to adduce fresh evidence

71                  At the commencement of the appeal the appellants sought leave to adduce fresh evidence from a Mr Zinar and a Mr Espoda. Mr Zinar is a Mexican lawyer specialising in criminal law and a lecturer in the faculty of law at Anahuae University. Mr Espoda is a partner of Mr Zinar. Mr Zinar had given evidence in the proceedings before the magistrate.

72                  The evidence sought to be adduced from Mr Espoda relates to documents which Mr Espoda claims to have been shown by officers of the Mexican Federal Attorney-General’s office said to recommend or authorise the entry of what in Australian terms would be called a nolle prosequi in relation to a number of charges affecting Mr Cabal. Mr Zinar in his affidavit seeks to explain the procedure which exists in Mexico and which would give rise to the conclusion of an investigation by the making of a recommendation not to proceed. An attempt to adduce this evidence before French J was unsuccessful.

The Constitutional Argument

73                  Both at first instance and on appeal the parties proceeded on the basis that the review required to be heard by the Court or the Supreme Court of a State or Territory was in the nature of a rehearing, but subject to the provisions of s 21(6)(d) of the Act which confine the Court hearing the review to the material which was before the magistrate. Likewise the parties agreed that when s 21(6)(d) referred to the material “that was before the magistrate” that included not only material which the magistrate had admitted into evidence, but also material tendered by either the extradition country or the person in respect of whom the extradition application was made, which, for whatever reasons, was rejected by the magistrate and accordingly not taken into account by her. At least the latter of these propositions is not self-evident, if only because it would permit the Judge conducting the review to consider material not capable of being tested by cross examination or which might, had it been admitted, have led to the calling of other evidence. Clearly s 21(6)(d) would not permit any cross examination on that evidence to take place or further evidence to be considered. However, as the parties proceeded on that basis before us we are content to accept for the purposes of the appeal the correctness of this construction of s 21(6)(d).

74                  The submission that s 21 of the Act involves an impermissible conferral of administrative power upon the Court depends upon two basic premises. The first is that because the Attorney-General is given a discretion under s 22 of the Act whether or not a person who has been found eligible for surrender should in fact be surrendered, the decision on the review is not a binding determination of existing rights and thus an exercise of judicial power. It is said to bring about the result that the decision of the Court on the review is but another administrative step in what is said to be a continuous administrative process. The second (and the two premises are related) is that what is done by the magistrate is an exercise of administrative power and when that power is exercised again by the Court it is not thereby converted to an exercise of judicial power. It is said that the function of determining whether a person is eligible for extradition is inherently administrative and not innominate so that it may not be regarded as being either judicial or administrative, depending upon whether or not it is conferred upon a Court: cf The Queen v Quinn; Ex Parte Consolidated Food Corporation (supra) at 6.

75                  It may be accepted, for present purposes, that, whatever the difficulty of delineating precisely the nature of judicial power, it is a defining characteristic of that power that it involves the binding and authoritative ascertainment or determination of existing rights: Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357 per Griffith CJ, The Queen v Davison (1954) 90 CLR 353 at 366 per Dixon CJ and McTiernan J. Commonly, although not invariably, judicial power may be described in the words of Gaudron J in Nicholas v The Queen (1998) 193 CLR 173 at 207 as:

“that power which is brought to bear … in making binding determinations as to the rights, liabilities, powers, duties or status put in issue in justiciable controversies and, in making binding adjustments of rights and interests in accordance with legal standards.”

76                  In Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 360-361:

“A power to adjudicate “a dispute about rights and obligations arising solely from the operation of the law on past events or conduct” is one that is essentially and exclusively judicial. On the other hand, a power to bring a new set of rights and obligations into existence is generally non-judicial, although it may take its character from the tribunal involved. Thus, a power to create new rights and obligations, if it is conferred on a court and “is to be exercised according to legal principle or by reference to an objective standard or test prescribed by the legislature and not by reference to [unspecified] policy considerations”, will be characterised as judicial power involving the determination of rights and obligations for which the law provides. As least that is so if the subject matter and prescribed procedures are consistent with the nature and functions of a court.

However, if power to bring a new set of rights and obligations into existence is vested in a tribunal which is not a court and policy considerations have a part to play in the tribunal’s determination, the power is not judicial. And that is so even if it is necessary for the tribunal to decide disputed facts or to form an opinion as to existing rights and obligations as a step in arriving at its ultimate determination.” (footnotes omitted)

77                  The difficulty of characterising a particular exercise of power as administrative or judicial and thus of defining exhaustively the boundaries of judicial power stems from the fact that there is not a true dichotomy between powers as such which may be said to be judicial and those which may be said to be administrative. As Kitto J observed in The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 373, citing Labour Relations Board of Saskatchewan v John East Iron Works Ltd [1949] AC 134 at 148, the uncertainties that exist in framing an exhaustive definition of judicial power turn upon the fact that there is “a borderland in which judicial and administrative functions overlap”.

78                  In Re Dingjan Gaudron J said at 360:

“It is well settled that some powers are essentially judicial so that they can be conferred by the Commonwealth only on courts named or designated in Ch III of the Constitution, while others take their character from the tribunal in which they are reposed and the way in which they are to be exercised and, thus, may be conferred on courts or other tribunals as the Parliament chooses.”

79                  See also Bachrach (HA) Pty Ltd v The State of Queensland (1998) 195 CLR 547 at 562. We will return to this question later.

80                  It has been determined in a number of cases in this Court, for example Narain v Parnell (1986) 9 FCR 479, Schlieske v Federal Republic of Germany (No 2) (1987) 76 ALR 417 at 422, Todhunter v United States of America (1995) 57 FCR 70 at 80, Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 485-6 per Burchett J and at 521-522 per Gummow J, Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 290, Papazoglou v Republic of the Philippines (1997) 74 FCR 108 at 129 and Federal Republic of Germany v Parker (1988) 84 FCR 323 at 341-2 that the proceedings before a magistrate under the current legislation and its predecessor the Extradition (Foreign States) Act 1966(Cth) are administrative proceedings in which the magistrate acts as a persona designata. That the proceedings before the magistrate are administrative in nature was accepted by the High Court in Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 where Brennan CJ, Dawson and McHugh JJ said at 538:

“The powers conferred by the Act, other than those conferred on a court by s 21, are administrative in nature.” (emphasis added)

81                  Their Honours were not, in the passage cited, addressing an argument that the Court, acting under s 21 of the Act, was exercising administrative rather than judicial power. However, it can at least be said that this passage is difficult to reconcile with that contention.

82                  The proposition that a court is necessarily exercising an administrative function where jurisdiction is conferred upon that Court to make a finding on what the submission refers to as the existence or non-existence of a factum upon which an executive discretion is conditioned is supported neither by logic, nor authority. The present is not a case where the matter which the executive is required to decide under s 22 of the Act (ie whether the eligible person should in fact be surrendered in relation to a particular extradition offence) is the same matter as the Court is required to determine, where a different problem might arise. Here the issue for determination by the Court is whether a person is, within the meaning of the legislation “eligible for surrender”. If the Court decides that the person is not eligible for surrender, no question of exercise of discretion arises under s 22 of the Act. The Court orders the release of the person and quashes the decision of the magistrate: s 21(2)(b). If the Court confirms the decision of the magistrate under s 21(2)(a) of the Act it is then, but only then, that the discretion conferred upon the Minister arises, a discretion that does not ignore the decision of the Court, but rather which accepts that decision as a necessary prerequisite to the exercise of that discretion.

83                  The cases, or at least comments made in them, which are cited by the appellants in support of the proposition are The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (supra), Director of Public Prosecutions (Cth) v Kainhofer (supra) and Wiest v Director of Public Prosecutions (supra).

84                  In The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (supra)the issue was whether the Trade Practices Tribunal in determining whether an examinable agreement was contrary to the public interest was exercising the judicial power of the Commonwealth. Windeyer J, at 398 discussed an argument whether adjudication (in that case the preliminary adjudication by the Commission that an examinable agreement existed, as a prerequisite to its determination that there was an agreement contrary to the public interest) necessarily involved the exercise of judicial power. Clearly it did not. In making this adjudication the Tribunal was making a decision on a jurisdictional fact, but in so doing was not exercising judicial power. The adjudication it made as a preliminary inquiry took its character from the character of the overall jurisdiction it was exercising which was administrative.

85                  By way of example, his Honour gave the illustration of a Customs official determining whether an article was a prohibited import or, if a permissible import, whether it was dutiable and if so the quantum of that duty. The official in such a case was making an adjudication but not exercising judicial power. The adjudication which the Court makes under s 21 of the Act by way of review of the magistrate’s decision has no analogy with the adjudication of the Customs official. There is no doubt that when the magistrate exercising his or her administrative function makes a decision whether the person before the Court is eligible for surrender, the magistrate, like the Trade Practices Tribunal is making a decision on a jurisdictional fact as a preliminary to the determination whether the person is to be committed to prison to await surrender or is to be released. The magistrate’s adjudication that the person is eligible for surrender takes its character from the jurisdiction of which it is, to use the language of Windeyer J “a phase”. But it does not follow from this alone that the Court in reviewing the decision of the magistrate is making an administrative decision any more than it would follow that the Court in reviewing the Tribunal’s determination that there is an examinable agreement would necessarily be exercising administrative power.

86                  Kitto J, at 378 referred to the determination of the Tribunal that a restriction or practice is contrary to the public interest as “the factum by reference to which the Act operates to alter the law in relation to the particular case” (that is, by rendering the agreement unenforceable). The determination, by contrast, itself had no operative effect. To call the Court’s finding that a person is eligible for surrender a factum is but to use a label. It is not determinative one way or the other of the question whether the Court is exercising judicial power. It is to say no more than that it is a necessary prerequisite to the Attorney-General exercising the discretion under s 22 of the Act that the decision of the magistrate that a person is eligible for surrender has been confirmed. The Court’s determination has, however, a real legal consequence. If the determination is favourable to the person, the person must be released from custody and cannot be extradited.

87                  In the passage cited from the joint judgment of Brennan CJ, Dawson and McHugh JJ in Kainhofer it is said by the appellants that the Attorney-General, acting under s 22 of the Act makes an independent determination of the issue of the existence of an extradition objection just as the magistrate does. One must, however, take care in reading this passage. Strictly, the question which arises for the Attorney-General under s 22 as to whether an extradition objection exists is not the same issue as arises before the magistrate under s 19 or the Court under s 21 of the Act. The magistrate (and thus the Court in a review) considers the question of whether an extradition objection exists as at the time the matter arises before the magistrate. The Attorney-General, on the other hand, considers the matter at a different time, namely when the occasion arises for the making of the determination under s 22 of the Act. It is quite possible that between the time of the hearing before the magistrate and the time the occasion arises for the matter to be considered by the Attorney-General, circumstances have changed.

88                  The passage cited from Wiest likewise is of no assistance to the appellants. It does no more than affirm that the magistrate in extradition proceedings, as in committal proceedings, exercises an administrative function.

89                  If the submission made by the appellants in its bald form were to be accepted it would mean that every time a Court was empowered to decide a matter which was a condition precedent to the exercise of an administrative discretion, the Court would necessarily exercise administrative power. Such a result would be, to say the least, extraordinary. It would mean, for example, that a Court could not in an income tax appeal determine whether any of the prerequisites for the exercise of discretion by the Commissioner under s 99A(2) of the Income Tax Assessment Act 1936 (Cth) were satisfied, merely because a consequence of the determination would be that the Commissioner had a discretion to determine that it would be unreasonable for s 99A of that Act to apply to the trust estate cf Duggan v Federal Commissioner of Taxation (1972) 129 CLR 365. Similarly if a law with respect to migration were to require that a person not lawfully in Australia was to be deported but confer upon the Minister a power not to deport such a person, it would, if the submission be accepted be an exercise of administrative power for a Court to determine whether a person was lawfully in Australia just because that was a prerequisite (a factum) to the exercise by the executive of an administrative power.

90                  The more difficult question is not whether the existence of the discretion conferred upon the Attorney-General under s 22 of the Act leads to the earlier determination by the Court being administrative in nature, but rather whether because the jurisdiction when exercised by the magistrate is administrative it continues to be administrative when exercised by the Court in a review under s 21 of the Act.

91                  As we have already noted there will be many occasions where the exercise of a power may be administrative or judicial depending upon whether the power is conferred upon an administrative functionary or a Court. The judgments in The Queen v Davison (supra) contain illustrations of this. In that case the question was whether the making of a sequestration order by the Registrar of the Federal Court of Bankruptcy involved the exercise of judicial power. It was held that it did and in the result the legislation conferring upon the Registrar that power was invalid. The case makes it clear that where there are functions or powers which are not necessarily of a judicial or administrative character regard may be had to how such functions or duties have been exercised historically (ie whether as incidental to the exercise of judicial power) as well as to how the particular function or power is treated by the legislation conferring it. Put another way, the functions may, as Aickin J observed in The Queen v Quinn; Ex parte Consolidated Food Corporation (supra) at 18 “chameleon like, take their colour from their legislative surroundings or their recipient”.

92                  It may be true, as the appellants say, that extradition itself is traditionally a matter for the Executive. It may also be true that historically extradition has been, at least in the United Kingdom and in Australia, a proceeding before a magistrate rather analogous to a committal proceeding, which is, of course, administrative in nature – Grassby v The Queen (1989) 168 CLR 1. It does not follow that the process on review by a Court is necessarily administrative in nature as well.

93                  The first extradition law in the United Kingdom, enacted in 1843 gave legislative sanction to an Extradition Treaty between France and the United Kingdom. There was provision for the person accused of an extradition offence to be brought before a justice of the peace or person having power to commit for trial persons accused of crimes against the laws of the United Kingdom. Later acts dealt separately with extradition treaties with other countries, such as the United States. In general the justice of the peace was empowered:

“to examine upon Oath any Person or Persons touching the Truth of such Charge, and, upon such Evidence as according to the Laws of that Part of Her Majesty’s Dominions would justify the Apprehension and Committal for Trial of the Person so accused if the Crime of which he or she shall be so accused had been there committed…”

94                  The first general extradition law in the United Kingdom (it extended to the colonies) was passed in 1870, the Extradition Act 1870 (UK). In pursuance of that Act treaties were entered into by the United Kingdom with a large number of foreign countries and those treaties were made applicable to Australia. The Extradition Act 1903 (Cth) vested the powers exercisable under the Imperial Act in appropriate persons in Australia. The Imperial Act required that the issue of a warrant be:

“on such evidence or after such proceedings as would in the opinion of the person issuing the warrant justify the issue of a warrant if the crime had been committed or the criminal convicted in that part of the United Kingdom in which he exercises jurisdiction.”

95                  The hearing contemplated was rather like a committal proceeding. Access to the Court could be by way of a writ of habeas corpus although there was a limited statutory right to approach a Court where the fugitive criminal was not surrendered and extradited within two months of committal. Although the procedure before a justice of the peace was no doubt administrative there is no reason to think that the procedure in a Court involved other than the exercise of judicial power.

96                  The Fugitive Offenders Act 1881 (UK)amended the law with respect to fugitive offenders in the Dominions. It provided for a Court on review of a justice of the peace’s decision to have regard to various matters including whether it would be unjust or oppressive to return a fugitive. If so, the Court could discharge that person. Again the power of the Court was clearly judicial, albeit that the procedure before a justice of the peace was administrative.

97                  By 1966 it was recognised that it was clearly inappropriate for Britain to negotiate further extradition treaties on behalf of this country. The first Australian legislation dealing specifically with extradition, apart from the 1903 Act, was the Extradition (Commonwealth Countries) Act 1966 (Cth) which replaced the Fugitive Offenders Act 1881 (UK). Under the Extradition (Commonwealth Countries) Act 1996 (Cth) there was a statutory obligation to extradite persons whose surrender was sought to declared Commonwealth countries if all conditions were fulfilled. The procedure was that application was to be made to a magistrate to issue a warrant. In essence the magistrate had to determine whether a prima facie case existed. The fugitive could apply under s 17(1) of that Act to the Court for “a review of the validity of the decision” of the magistrate. That procedure was clearly an exercise of judicial power. There was also a right of “review” contained in s 28 of that Act (dealing with extradition to New Zealand) which was directed by s 28(3) to be “by way of rehearing”. Evidence in addition to, or in substitution for, the evidence given on the making of the order could, pursuant to s 28(3) of that Act, be given before the Court. The Court on the review was empowered to confirm or vary the order, or quash it and substitute a new order in its stead. Similar provisions were enacted in the Extradition (Foreign States) Act 1966 (Cth). That Act replaced the Imperial Extradition Acts passed between 1870 and 1935 although it did not exclude the operation of the Fugitive Offenders Act 1881 (UK). The fugitive could apply under s 18 of that Act for a review of the magistrate’s decision. That too was clearly an exercise of judicial power.

98                  It was the Extradition (Foreign States) Act 1966 (Cth) that was considered in the High Court in Riley v The Commonwealth (1985) 159 CLR 1 at 15 where Deane J outlined the principles of international law relating to extradition and observed that historically the writ of habeas corpus was available to an offender where nothing more than an extradition treaty requiring that person’s extradition, without mandate of Parliament, existed. There can be no doubt that the decision whether or not to grant the writ involved an exercise of judicial power.

99                  The legislation in its present form followed a meeting of Commonwealth Law Ministers held in London from 26 April to 3 May 1966 to review extradition arrangements operating within the Commonwealth. This resulted in amendments being made to the Extradition (Foreign States) Act 1966 (Cth) by Act No 171 of 1973 and to the Extradition (Commonwealth Countries) Act 1966 (Cth) by Act No 172 of 1973. The final legislative step was the enactment of the Act in 1988. Subject to the terms of particular treaties it was no longer necessary for there to be a procedure analogous to a committal to determine whether there was a prima facie case. Theproceedings which are required under the Act before the magistrate are described in Zoeller v Federal Republic of Germany (1989) 23 FCR 282 which sets out the history of the legislation in greater detail than here. What is of present significance is that the magistrate in the ordinary case could not go outside the extradition documents submitted, although as here, evidence could be taken as to the existence of an extradition objection. This being the case it would be strange if the right of review which was conferred upon the Court would permit the review to go outside the material which the magistrate had to consider. This no doubt explains why the present review is so limited.

100               It appears to be accepted by the appellants that if the review under s 21 of the Act is judicial review in the strict sense (as for example by a writ of habeas corpus) the Court would clearly be exercising judicial power. What is sought to be argued, however, is that because (as the parties agree) the proceedings in this Court are by way of rehearing, albeit a rehearing limited to the material before the magistrate, the Court becomes merely part of the administrative framework commencing with the magistrate and concluding with the Attorney-General. It is said to follow that the Court, like the magistrate, is exercising administrative rather than judicial power.

101               Given the history of appeals in one form or another to Courts clearly exercising judicial power in the field of extradition law generally it is difficult to resist the conclusion that the right of review under s 21 of the Act was intended by Parliament to be conferred upon a Court as an exercise of judicial power. There is no reason to conclude that the right of review is other than innominate in the sense that it is capable of assignment by Parliament in its discretion to more than one branch of government: cf per Isaacs J in Shell Co Australian Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530, cited by Jacobs J in The Queen v Quinn; Ex parte Consolidated Foods Corporation (supra) at 8.

102               The decision made by the Court is final and binding on the parties at least as regards the issue before the Court, namely whether the person whose extradition is sought is eligible for surrender. The fact that the Court’s jurisdiction is limited to the material before the magistrate does not convert that jurisdiction to the exercise of an administrative power. It is within the power of the Commonwealth Parliament to limit that jurisdiction: Abebe v The Commonwealth of Australia (1999) 197 CLR 510. As the learned primary judge observed the restriction of the Court to the material before the magistrate is procedural and does not affect the nature of the appeal itself: Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 107 per Dixon J.

103               The Court is obliged to ascertain the facts in a way that is final and binding between the parties: an indication of judicial power. The Court is obliged to apply the facts found to the terms of the statute, again an indication of the exercise of judicial power. The fact that the same functions are conferred upon the magistrate is not determinative of the question.

104               In our view the appellants’ submission is misconceived. The Court on review is exercising the judicial power of the Commonwealth and not merely an administrative function.

THE WARRANTS

105               Eligibility for surrender pursuant to s 19(2) of the Act depends in part upon production to the magistrate of the supporting documents prescribed in s 19(3). Section 19(3)(a) identifies as one of the supporting documents:

“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 … .”

106               The appellants submit that:

·                     the warrants are not warrants in the relevant sense; and

·                     some of the warrants have been stayed as a result of what are described as “Amparo proceedings”.

107               The thrust of the first submission is that the warrants, purportedly issued by Mexican Judges, are not sufficient authority for apprehension in Mexico. It is said that under Mexican law arrest involves a “three-stage process”. The first stage is the determination by a Judge that the elements of the offence and probable liability have been established. The second is communication of this determination to a government ministry. The third is the issue by the ministry of a written authority to the police to enable arrest. It is said that the “warrants” in the present case constitute only the first part of this tripartite process, and that as a consequence the requirements of s 19(2) have not been made out.

108               This submission invites determination of the meaning in s 19(3)(a) of the words “warrant for the arrest of the person”. We can do little better than cite with approval the approach taken by French J at first instance. His Honour said at pars 144 and 145:

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 such variation.

109               Although it was submitted that some of the warrants did not describe themselves as such, we do not understand the appellants to have submitted that any of the warrants failed to satisfy this test, at least in so far as may appear from their terms. The appellants rather relied on evidence which, they submitted, demonstrates that these documents are not sufficient authority for apprehension for the reason which we have already mentioned.

110               The state of the law in Mexico is a question of fact. See National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209 at 226 per Gummow J. French J accepted the evidence of the witness Mr Dela Guardia who had been a legal officer in the office of the Attorney-General of Mexico and was, at the time of giving evidence, a legal attache in the Mexican embassy in Canberra. His evidence satisfied French J that the warrants were sufficient authority for apprehension and that notification was merely mechanical. The appellants had led evidence to the contrary from the witnesses Del Toro and Izunza. His Honour concluded at par 153:

“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. … 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.”

111               We consider that French J correctly characterized the problem as whether these “steps of a procedural kind” deprived the warrants of their efficacy for the purposes of the Act. Their effect in Mexico was relevant only to the extent that it affected the answer to that question. The appellants made no attempt to demonstrate any error in his Honour’s approach. Their submissions on appeal seemed to focus upon the evidence which they had called, ignoring the evidence to the contrary adduced on behalf of Mexico and the use made by his Honour of all of the evidence. We see no reason to doubt the correctness of his Honour’s view. There is no evidence that the subsequent procedural steps involved the exercise of any further discretion. As far as we can see, the issue of each warrant was the source of authority to apprehend.

112               We turn to the Amparo proceedings. The nature of these proceedings was discussed in detail by the Full Court (Drummond, North and Gyles JJ) in Peniche v Vanstone (2000) 101 FCR 112 on appeal from Kenny J, whose judgment is reported sub nom Bertran v Vanstone (supra). It is sufficient to say that the Amparo jurisdiction may be invoked if a person believes that his or her constitutional rights have been infringed. For present purposes, a court exercising this jurisdiction may suspend a warrant for arrest or, ultimately, declare it to be invalid. Kenny J had dismissed applications for judicial review of decisions of the Minister for Justice to issue directions pursuant to s 16 of the Act, these being the directions pursuant to which the magistrate eventually acted in the proceedings which are relevant to this appeal. Before making each direction it was necessary that the Minister be of the opinion that the relevant appellant was an extraditable person. Pursuant to s 6, for a person to be an extraditable person there must be a warrant in force for his or her arrest. Before Kenny J, one question was whether or not Amparo proceedings, and orders made therein for suspension of warrants, had the effect of depriving those warrants of their “force” for the purposes of s 6 and therefore s 16 of the Act. Although the wording of s 19(3)(a) refers to “a duly authenticated warrant” rather than to “a warrant (which) is in force”, it is unlikely that there is any significant difference in meaning between the two expressions.

113               Kenny J concluded that the Amparo proceedings did not deprive any warrant of its force for the purposes of s 6. (See Bertran v Vanstone (supra) at 76-88.) The Full Court did not find it necessary to go so far. Their Honours pointed out that for the purposes of s 16, the necessary condition was that the Minister hold the prescribed opinion as to the status of the person in question, not that such status should exist. Thus the Court was not obliged to consider the correctness or otherwise of the conclusion reached by Kenny J as to the effect of an Amparo stay upon a warrant for the purposes of the Act. It seems that before the magistrate, the appellants were not permitted to lead evidence as to the Amparo proceedings. It is not clear whether this body of evidence was included in the fresh evidence which the appellants sought to lead before us. In any event for reasons which are set out later in this judgment, we have refused to receive such evidence.

114               We should add that we have perused Kenny J’s reasons and agree that the Amparo proceedings, including any stays pursuant thereto, did not deprive these warrants of their effect for any presently relevant purposes.

Conduct constituting the offenceS

115               Pursuant to s 19(3)(c)(ii) there must also be produced to the magistrate “a duly authenticated statement in writing setting out the conduct constituting the offence”. The purpose of this statement is to assist the magistrate in determining whether or not the conduct complained of satisfies the requirements of s 19(2)(c) concerning the criminality of such conduct in this country. See McDade(supra) at par 15. The magistrate is not to inquire into the adequacy of the facts to establish the alleged offence pursuant to the law of the extradition country. See Zoeller(supra) at 299 and Holt (supra) at 504. See also Rahardja v Republic of Indonesia [2000] FCA 1297, especially at pars 75 – 77 where the Full Court adopted the test prescribed by Sheppard J at first instance in Zoeller v Federal Republic of Germany (1988) 19 FCR 64 at 79 as follows:

“Whilst one ought to look at the substance of requests of this kind and not be over-zealous in finding deficiencies in them due to the use of language which is not strictly in conformity with the Act or which is inelegant or inappropriate, one must be satisfied in the end that the requesting state has understood the conditions upon which the Australian Act will permit extradition. If one is not satisfied that it has, there is the danger that the requesting State will misunderstand its obligations with the consequence that the extradited person may be prosecuted for an offence which the authority to extradite did not permit.”

116               We take this passage to mean that the statement as to conduct required by s 19(3)(c)(ii) must be identifiable as such. If it is, then it is not for the magistrate to enter upon an examination of the adequacy of the facts as proof of the alleged offence. The appellants have asserted that the statements as to conduct are, in some respects, inconsistent. It does not follow that these statements are materially deficient. So-called inconsistencies may provide alternative routes to the same conclusion. Alternatively, they may undermine the evidence of a witness or witnesses. It will only be relevant to the function of the magistrate if it makes it impossible for him or her to perform the duty prescribed by s 19(2)(c). Otherwise, it is a matter for the Mexican courts. It is also argued that the statements contain “conclusions” rather than allegations of acts or omissions. There may often be a distinction between the conduct said to constitute an offence and the evidence led to establish that conduct. It is the conduct rather than the evidence which must be identified for the purposes of s 19(3). See De Bruyn v Republic of South Africa (1999) 96 FCR 290 at 292-293 (per Hill and Hely JJ). As a general statement of principle, this criticism is unjustified.

117               The appellants also challenge the adequacy of the statements (or some of them) in two specific respects. The bases of this criticism can be identified by reference to the summary of the charges which appears at pars 85-87 of the reasons of French J. Some of the alleged offences apply to conduct by employees and officers of credit institutions. It also appears to be a common element of such offences that the institution in question should have suffered loss as a result of that conduct. The appellants complain that the allegations as to Mr Cabal’s status may not be sufficient to prove that he is a person who may be guilty of these offences. It is also asserted that the allegations as to loss may not be sufficient. We have previously set out the text of certain memoranda which summarize the information supplied by Mexico and produced before the magistrate. Those memoranda readily demonstrate the bases of Mexico’s allegations concerning these matters. It may not have set out all of the evidence upon which it might rely at the trial, nor has it explained how these general allegations may satisfy the relevant Mexican law. The Act does not compel either step. They are matters for the trial and for the Mexican courts.

118               It is also said that the statements allege facts beyond those necessary to prove the various offences and that a statement as to conduct must be confined to theconduct relevant to the offence in question. It is said to be fatal to an application for extradition that the statement of conduct describes more. It is difficult to see why this should be so. Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 299 is authority to the contrary. See also De Bruyn at 292-293 and McDadeat par 22. Even if the Act could be construed as prohibiting extraneous allegations (and we see no basis for doing so), it is unlikely that a breach of such prohibition would be fatal to the proceedings. See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-391.

119               We see no reason to doubt that Mexico has complied with the requirements of ss 19(2) and 19(3) of the Act. Both here and below, the appellants have sought to engage in precisely the kind of exercise which has been consistently proscribed by this Court since the decision in Zoeller, namely to examine the statements as to conduct with a view to determining their adequacy for the purposes of proving the various alleged offences according to the law of the extradition country. Unfortunately, they have consumed a large amount of time and money in so doing. We see no reason to doubt the correctness of the line of cases to which we have referred.

THE extradition objections

120               Under the Act there are a variety of grounds on which extradition can be resisted. As noted earlier s19(2)(a) provides that a person is only eligible for surrender if the supporting documents in relation to the offence have been produced to the magistrate. Section 19(2)(b) provides that any other documents required as a result of the operation of a treaty or the regulations also be produced. Section 19(2)(c) provides that the magistrate must be satisfied that the requirements of double criminality are met. Importantly for present purposes s 19(2)(d) provides that a person is only eligible for surrender if 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.

121               Section 7 makes provision for an extradition objection in relation to political offences, circumstances of discrimination, military offences, and where double jeopardy arises or there has been a pardon. The issue raised in this appeal is whether, contrary to the findings of French J, the appellants made out a case that the purpose for which their extradition was sought was to prosecute or punish them on account of their political opinions, as required by s 7(b), or that on surrender they would be prejudiced at their trial, or punished, detained or restricted in their personal liberty by reason of their political opinions, as required by s 7(c).

122               It is worth saying something briefly about the history of ss 7(b) and 7(c). Provisions similar to these were first enacted into law in this country as ss 14(a) and 14(b) of the Extradition (Foreign States) Act 1966 (Cth) and ss 11(1)(a) and 11(1)(b) of the Extradition (Commonwealth Countries) Act 1966 (Cth). Those provisions imposed restrictions upon the power of the Attorney-General to authorise the apprehension, or order the surrender, of a fugitive and were inapplicable to the magistrate’s function in determining whether the person was liable to be surrendered to the country that made the requisition for surrender. Sections 7(b) and 7(c) differed from these earlier provisions by making those grounds “extradition objections” which, by virtue of s 19(2)(d) of the Act, are relevant to the magistrate’s determination of eligibility for surrender.

123               It should also be noted that ss 7(b) and 7(c) replaced the protective provisions formerly contained in the Extradition (Commonwealth Countries) Act 1966 (Cth), s 16 of which empowered a magistrate to discharge a fugitive where it appeared, inter alia, that the application for his return was not made “in good faith or in the interests of justice”. That provision was derived from s 10 of the Fugitive Offenders Act 1881 (UK) which applied only to extradition within the Dominions. There was no like provision in the Extradition (Foreign States) Act 1966 (Cth). See generally Foster v Minister for Customs and Justice (2000) 200 CLR 442 at 464-467 per Kirby J. The protective provisions continue to apply in relation to extradition from Australia to New Zealand under s 34(2)(b) of the current Act. Formerly similar provisions were also to be found in relation to extradition within Australia under the Service and Execution of Process Act 1901 (Cth). However, those provisions were not replicated when that Act was repealed and replaced by the Service and Execution of Process Act 1992 (Cth).

124               Sections 7(b) and 7(c) appear to derive from Art 33(1) of the Convention Relating to the Status of Refugees 1951, done at Geneva on 28 July 1951. They derive also from Art 3(2) of the European Convention on Extradition 1957. Similar provisions were first enacted in England by the Fugitive Offenders Act 1967 (UK). Those provisions are now to be found in ss 6(1)(c) and 6(1)(d) of the Extradition Act 1989 (UK).

125               Sections 7(b) and 7(c) make provision for two quite separate extradition objections. The first is where it can be shown that the motive of the requesting State is to prosecute the fugitive for a political offence. The second is where, upon return, the person may be prejudiced at his or her trial, or punished, detained or restricted on account of his or her political opinions. These extradition objections are described by one commentator as being based upon “discrimination”: see Aughterson, Extradition – Australian Law and Procedure 1995, at 111.

126               It is clear from s 19(2)(d) that the proponent of either of these extradition objections bears the burden of establishing the conditions for its operation. However that burden goes no further than requiring that there be “substantial grounds for believing” that these conditions exist.

127               The submissions on behalf of the appellants in support of their claims regarding discrimination against them on the grounds of their political opinions were extremely detailed and, in some respects, difficult to follow. However, it was contended that French J erred both in law and in fact when he rejected these claims.

128               It was submitted that his Honour erred in law by:

·                     treating the extradition objections as raising matters with which a court was ill-equipped to deal;

·                     failing to appreciate that the evidence had to be viewed in what was described as “the Mexican context”;

·                     assuming that he was required to approach the evidence in a manner which presumed that the appellants were guilty of the offences alleged; and

·                     upholding the magistrate’s decision to exclude a large body of evidence described as “country information”.

129               It was submitted that his Honour made the following errors of fact:

·                     failing to accord proper weight to the evidence given by the experts called on behalf of the appellants;

·                     concluding that the opinions held by Mr Cabal were “not of great significance” to the Mexican Government;

·                     failing to give proper weight to the evidence concerning the speed with which the warrants against Mr Cabal had been issued;

·                     failing to give proper weight to the lack of interest which the Ministry of Finance displayed in recovering the loans;

·                     failing to give proper weight to the admissions made by senior Mexican officials and police that the charges against Mr Cabal were politically motivated;

·                     failing to give proper weight to the PRI advertisement of 15 July 1999; and

·                     failing to give proper weight to the actions of various Mexican officials who, during the course of the extradition proceedings, had sought to intimidate witnesses who were to be called on the appellants’ behalf.

130               In addition, it was submitted that his Honour erred in refusing the appellants leave to adduce the fresh evidence from Mr Zinar and Mr Espoda concerning the recommendations by officers of the Mexican Federal Attorney-General’s office that there should be entered what in Australian terms would be called a nolle prosequi in relation to a number of charges affecting Mr Cabal.

THE PRELIMINARY RULING

131               Before we deal with these contentions in detail it is necessary to say something about a preliminary ruling which his Honour delivered in this matter. That preliminary ruling concerned three distinct issues:

·                     the interpretation to be accorded to the expression “substantial grounds for believing” in s 19(2)(d);

·                     the principles governing the admissibility of evidence tendered in relation to extradition objections; and

·                     the meaning of the expression “the material before the magistrate” in s 21(6)(d).

132               The preliminary ruling is reported as Cabal v United Mexican States (No 2) (2000) 172 ALR 743. His Honour’s reasons for judgment in the principal judgment must be read against the background of that preliminary ruling.

“Substantial grounds for believing” - s 19(2)(d)

133               French J held that the requirement in s 19(2)(d) that the appellants satisfy the magistrate that there were “substantial grounds for believing” that there was an extradition objection did not require proof that the circumstances outlined in ss 7(b) or 7(c) existed, but something significantly less than that.

134               His Honour referred to Fernandez v Government of Singapore [1971] 1 WLR 987 where the House of Lords considered the operation of s 4(1)(c) of the Fugitive Offenders Act 1967 (UK), which was, in all relevant respects, similar to s 7(c) of the Act. In that case a magistrate dealing with an application for extradition heard oral evidence from the appellant of his political activities in Singapore prior to his departure from that country. The magistrate did not accept the appellant as a witness of truth. He noted that he had never previously been detained or restricted in his movements. After he left Singapore he wrote a book attacking the Government. However, he had not found a publisher for the manuscript. His views would have remained unknown had he not sought to air them, after being arrested, by tendering the manuscript in the extradition proceeding.

135               Lord Diplock, with whose speech the other members of the House of Lords agreed, observed that there was no evidence to suggest that any of the approximately 60 to 100 political detainees then in custody in Singapore had been detained for having expressed views of the type contained in the manuscript. His Lordship noted that the magistrate had approached the issue of whether the particular extradition objection relied upon had been made out by asking whether the appellant had proved, on the balance of probabilities, that there was a reasonable chance that he would be detained by reason of his political opinions. In the Divisional Court, additional evidence in support of the appellant’s claim had been received. Lord Parker CJ formulated the appropriate test as being whether there were “substantial grounds for thinking” that the appellant might be detained. On appeal to the House of Lords, Lord Diplock concluded that it only led to confusion to speak of an onus “on the balance of probabilities” in the context of this extradition objection. A significantly lesser degree of likelihood of detention was sufficient. His Lordship formulated that lesser degree of likelihood as being encompassed within any of the expressions “a reasonable chance”, “substantial grounds for thinking” and “a serious possibility”.

136               In Hempel v Attorney-General (Cth) (1987) 29 A Crim R 133 French J analysed the expression “substantial grounds for believing” in s 14(a) of the Extradition (Foreign States) Act 1966 (Cth). He adopted the approach taken by Lord Diplock in Fernandez and concluded that the minimum requirement of “a substantial ground” is that it be “non-trivial”. It did not require the discernment of a greater than even chance of unfair discrimination.

137               It is scarcely surprising, therefore, that French J approached the expression “substantial grounds for believing” in the same way when he delivered his preliminary ruling in this proceeding. His Honour said at (ALR) 749:

“In relation to the political objections in s 7(b) and (c) material which demonstrates a real or substantial risk that the circumstances described in those paragraphs exist or will exist may be sufficient to satisfy the conditions in s 19(2)(d). The very nature of those objections is such that the evidence relied upon to make them out or to show substantial grounds for believing that they exist may be indirect or circumstantial in character.”

138               It was not suggested before us that this statement of principle disclosed any error.

The admissibility of evidence tendered in relation to extradition objections

139               In his preliminary ruling French J endeavoured to state the principles governing the admissibility of evidence tendered in support of an extradition objection. He took what may fairly be described as a broad and commonsense view of the matter. He said at 749:

“If it be right that the accused person must demonstrate a real risk that the political objections defined in s 7(b) and (c) exist then such may be demonstrated by second order or derivative materials which might not be admissible in civil or criminal proceedings to prove, according to the ordinary rules of evidence and on the balance of probabilities, that the political objections exist. To require strict proof that the political objections exist would rob those objection provisions of much of their protective value.”

140               His Honour noted that much of the material which the magistrate had excluded, took the form of “general country information”. He observed in relation to that material at 749:

“General country information of the kind upon which the applicants seek to rely in this case may have little bearing upon the ad hominem criteria to be applied in deciding whether the objections under s 7(b) and (c) are made out. Material may also be excluded where its generality gives it little weight and makes it difficult for the requesting country to answer. … The magistrate may reject material which is merely argumentative or offers unqualified opinions. It may be that in some cases hearsay evidence could be admitted subject to an opportunity being given to the requesting state to rebut it or to comment upon the weight to be given to it.”

141               It is at least implicit in his Honour’s preliminary ruling that he considered that the provisions of the Evidence Act 1995 (Cth)were not applicable to the proceeding before the magistrate. That conclusion seems to us to be correct as a matter of law. By s 4(1) of that Act its provisions apply to all proceedings in a “federal court” or an “ACT court”. The term “federal court” is defined in the dictionary to the Act to mean the High Court or any other court created by the Parliament (other than the Supreme Court of a Territory) and includes “a person or body (other than a court or magistrate of a State or Territory) that, in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence”. A magistrate conducting an extradition proceeding does not, therefore, come within the operation of the Evidence Act.

142               In considering what rules, if any, relating to the admissibility of evidence which applied in the proceeding before the magistrate, his Honour did not address the possible application of s 79 of the Judiciary Act 1903 (Cth) to the conduct of that proceeding. That section operates to render the laws of each State or Territory, including the laws relating to procedure and evidence, binding on all courts exercising federal jurisdiction in that State or Territory in all cases in which they are applicable. However, it is confined in its operation to courts exercising federal jurisdiction. It would appear therefore to have no application to magistrates conducting administrative proceedings, who act persona designata, and do not exercise judicial power.

143               There are several provisions of the Act which govern the admissibility of evidence in an extradition proceeding before a magistrate. For example, s 19(3) provides a definition of the term “supporting documents”. Section 19(5) prevents a person from adducing evidence to contradict an allegation that that person engaged in conduct constituting an extradition offence for which his or her surrender is sought. Section 19(6) provides that, subject to s 19(5), any document that is duly authenticated is admissible in the proceedings. Section 19(7) provides a definition of “due authentication”. Section 19(8) provides that nothing in s 19(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.

144               The application of s 19(8) is not free from difficulty. It is arguable that it renders the ordinary rules of evidence which apply in State courts applicable to the proof of any matter or the admission of any document in support of an extradition objection. In Commonwealth of Australia v Riley (1984) 5 FCR 8 it was held that the evidence upon which a magistrate may act in an extradition proceeding is confined to that which would be admissible in criminal proceedings in this country. However, the test was to be one of substance and not of form.

145               Where treaty obligations require that the requesting State establish the existence of a prima facie case, there are conflicting views as to whether hearsay should be excluded. In Riley and in R v Governor of Pentonville Prison; Ex parte Kirby [1979] 1 WLR 541 the conclusion was that such material should not be received. However, the contrary view was expressed by Spender J in Todhunter v Attorney-General (Cth) (1994) 52 FCR 228. In that case there was a treaty that required that there be “a description of the facts…setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it”. This was held to permit the facts relied upon to be described by means of hearsay. See also Emami v US District Court for the Northern District of California 834f 2d 1444, 1451 (9^th Circuit 1987), and Wigmore, Evidence (3^rd ed) Vol 1 pp 25-31. Similarly, there are English cases which have held that the ordinary rules of evidence do not apply to the conduct of extradition proceedings: R v Governor of Pentonville Prison; Ex parte Osman [1990] 1 WLR 277 at 308-9. See generally Aughterson (supra) at 213-217.

146               The approach taken by French J to the admissibility of evidence in extradition proceedings was not itself challenged in this appeal. The appellants complained, however, that the magistrate erred in excluding a substantial body of material which they had sought to tender in support of the extradition objections relied upon. They also complained that his Honour failed to give adequate reasons for upholding the magistrate’s ruling. Although his Honour did not set out in detail his reasons for upholding that ruling in the principal judgment, he did say, at par 244, that the documents excluded were, in his opinion, “rightly excluded on grounds of want of probative value and considerations of fairness”. Moreover, he canvassed the general principles underlying the admissibility of evidence of this type extensively in his preliminary ruling.

The material before the magistrate

147               The third matter dealt with in his Honour’s preliminary ruling was whether material which had been excluded by the magistrate could be considered on review. As discussed earlier, s 21(6)(d) of the Act provides that upon a review of a magistrate’s orders, the Court to which the application is made “shall have regard only to the material that was before the magistrate”.

148               In dealing with this issue in his preliminary ruling the learned primary judge said at 749:

“Upon review by this court under s 21 the material proffered to the magistrate by the parties and received in evidence is plainly material that was before the magistrate for the purposes of s 21(6)(d). So too, in my opinion, is material that was proffered to the magistrate and was rejected by her. For the court may take a different view of the relevance or weight to be accorded to such evidence or of the criteria of fairness which govern its reception.” (emphasis added)

149               In accordance with this ruling his Honour ultimately gave consideration to a substantial body of material which was tendered by the appellants to the magistrate, but was rejected by her. He did so with the reservation that any material which had been tendered upon the basis that it was relevant to a particular factual issue could not subsequently be relied upon, on review, in relation to some other factual issue. Otherwise, as his Honour noted, the party against whom that material had been tendered would be unfairly deprived of the opportunity to adduce further material in response.

150               In his preliminary ruling his Honour dealt with this issue in the following way at 750:

“On this basis Mexico may wish to address on the relevance and weight of the excluded materials, that is to say those which were tendered but not accepted as evidence by the magistrate. … It is not necessary, in relation to the country information, for counsel for Mexico to do other than to address it at the level of generality with which it has been treated by the applicants.”

151               It seems that the parties were content for his Honour to deal with this issue in this way. The review was conducted upon the basis that all material which had been tendered to the magistrate, but had been rejected by her, was relevantly “before the magistrate” for the purpose of s 21(6)(d) of the Act, and could therefore be considered.

152               As noted earlier it was not suggested before us that the approach taken to this issue by French J in his preliminary ruling was incorrect. However, as discussed that approach may give rise to difficulty. If a Court were to conclude, on review, that evidence proffered, but rejected, in support of an extradition objection, ought to have been received, the requesting State may find itself in an impossible situation. The evidence in support of the extradition objection would then be received with no possibility of its being rebutted by any evidence being led in reply because such evidence would not, in any relevant sense, have been “before the magistrate”.

153               The difficulty which this might create for a requesting State may, in the end, be insurmountable, having regard to the language of s 21(6)(d) of the Act. It is obviously unfair that a person who has erroneously been prevented by a magistrate from tendering evidence in support of an extradition objection should be denied redress on review by this Court, or by the Supreme Court if that be the Court on review. At the same time it is also unfair that should such redress be granted, the requesting State is denied the opportunity to answer that material. In our view this matter should receive urgent attention.

the appellants’ case

154               By way of introduction to their contention that they had made out the extradition objection contained in s 7(b) of the Act, the appellants submitted that the following matters had been clearly established on the evidence:

·                    Mexico is a country in which political prosecutions can and do take place.

·                    Mr Cabal had “political opinions” which rendered him liable to persecution. While carrying on business in Mexico he had expressed strong views about the need for big business to maintain its independence from the ruling party, a position which was contrary to the prevailing view which was that big business was required to provide support to that party.

·                    Later, when Mr Cabal was being sought by the Mexican authorities, Mr Pasini, by helping the Cabal family, came to be seen by those authorities as complicit in Mr Cabal’s defiance.

·                    Mr Cabal, by acting independently, had clashed with members of President Zedillo’s circle within the ruling party. This followed the assassination of Mr Colosio in 1994. When President Salinas chose Mr Zedillo as Mr Colosio’s replacement, Mr Cabal tried to withdraw his financial support for the party, in defiance of a personal instruction from President Salinas. This led to hostility on the part of President Zedillo’s circle. The charges against Mr Cabal were laid soon afterwards.

·                    There was a strong body of evidence to suggest that the charges laid were politically motivated. Several senior Mexican officials close to the case had admitted that this was so. In addition, arrest warrants had been issued in Mexico with extraordinary speed, based on materials which could not have been read or properly considered by those who issued them. Judges had put their names to judgments they could not possibly have written. In addition there had been diplomatic interference on the part of the Mexican Government with the preparation of the appellants’ case in response to the extradition proceeding.

alleged errors of law

Courts ill-equipped to evaluate material

155               In broad terms, it was submitted that his Honour erred because he treated the evidence relied upon concerning the operation of the political and judicial systems in Mexico as being material of a kind which a Court was ill-equipped to evaluate.

156               It was submitted that this error pervaded the entirety of his Honour’s judgment insofar as it dealt with the extradition objections relied upon, and that his Honour’s approach had led him to treat dismissively a large body of material in support of those objections.

157               It was submitted on behalf of the appellants that for more than 70 years Mexico had been governed by a series of presidents who had wielded enormous power, both under the Constitution of 1917, and extra-legally. It was said that Mexico had been, and was today, a country governed by a single party, the PRI. It was further said that Mexico was not a democracy, but a “sophisticated dictatorship” in which the President was “all-powerful”. It was also said that Mexico had little regard for the rule of law. The President, supported by a small political and economic cabal, ran the country. The legal system was used by the party merely as an instrument to enforce its political will.

158               These claims were largely based upon the evidence of three expert witnesses called on behalf of the appellants. These experts were Professor Riordan Roett (“Professor Roett”), Professor Clementes Valdez Sanchez (“Professor Valdez”), and Mr Ricardo Guerra Carillo (“Mr Guerra”). A fourth expert also gave evidence about the nature of the Mexican political system. That was Mr Alberto Conrado Zinser Ceslik (“Mr Zinser”), Mr Cabal’s Mexican lawyer.

159               In addition to the evidence given by these experts, the appellants relied upon a large number of documents which French J described as “country information”. These documents were assembled in a volume of collected writings outlining human rights abuses in Mexico. The magistrate marked that material for identification but declined to receive it in evidence. It was submitted both before his Honour and before us that this evidence ought to have been admitted.

160               It was submitted that his Honour approached the evidence of these experts and the country information in what was described as an “ambivalent and less than coherent” manner. The appellants drew attention to two passages in his Honour’s judgment in support of that submission. The first was at par 104 where his Honour said:

“[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.”

161               His Honour said further:

“[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 [sic], 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.”

162               It was submitted that these passages revealed that his Honour had fallen into several distinct errors. It was said that insofar as they were predicated upon the Court lacking access to “expert advice” of the type generally available to the Executive Government, they were misconceived. A substantial body of expert evidence had been led before the magistrate. It had been open to the first respondent to seek to controvert that evidence by calling expert witnesses of its own. However, it had elected not to do so. Moreover, it was submitted that courts regularly receive and act upon expert evidence of this type.

163               It was further submitted, as part of the argument that there was no justification for approaching the evidence led on behalf of the appellants in this way. Moreover, his Honour ought not to have engaged in the task of weighing that evidence. An extradition objection is made out if there are “substantial grounds” for believing that it exists. The experts all said that the system of criminal justice in Mexico could be manipulated by the Government, and that systematic human rights abuses pass by, largely unchecked by the justice system. It followed, so it was said, that there must, by virtue of that evidence alone, be “substantial grounds” for believing that these things were true.

164               The first respondent contended that there was no substance in these submissions. It was true that in the passages set out above his Honour expressed concern about the difficulty confronting a court in dealing with oral testimony and large quantities of written material of the type relied upon by the appellants. It was also submitted that there was support for his Honour’s reservations about whether courts are properly equipped to pass judgment about the general functioning of the judicial system of other countries in the observations of Gummow J in Wiest v Director of Public Prosecutions (supra) at 514.

165               It was further submitted on behalf of the first respondent that whatever reservations his Honour may have had about the task confronting him, it was clear that he had nonetheless performed that task. He had carefully considered the evidence of the experts, as he was bound to do. He had also examined the country information and formed a view about its relevance and utility. His conclusions were open on the material, and could not be said to demonstrate any appealable error.

166               In our view, the first respondent’s submissions should be accepted. There was nothing inappropriate or indicative of error in his Honour’s expression of concern about the difficulties confronting a court in evaluating evidence of this type. The fact that an expert is permitted to express an opinion about a particular matter does not mean that a judge is bound to accept that opinion. Nor does that the fact that such an opinion is held necessarily, and of itself, give rise to “substantial grounds for believing” that it is true.

The “Mexican context”

167               It was submitted on behalf of the appellants that French J had, in effect, disregarded the evidence of their experts even though that evidence stood alone and was uncontradicted. It was further said that only by disregarding the “Mexican context” was his Honour able to say as he had, in substance, “that the Mexican political system is none too different from Australia’s”, and to suggest that the fuss over Mr Cabal was “no different, in effect, to the fuss over a person like Christopher Skase”.

168               We do not accept that his Honour erred in the manner for which the appellants contended. His reasons for judgment, when read as a whole, demonstrate that he was acutely conscious of the need to evaluate the evidence in support of the extradition objections against the background of the situation as the evidences suggests exists in Mexico. We are not persuaded that his Honour viewed the evidence concerning the alleged shortcomings of the Mexican political and legal systems through “rose coloured glasses” or in a naive or unworldly manner. It is true that he expressed reservations about some of the views expressed by the experts. It is also true that he observed that it would require a weighty case to establish that there were substantial grounds for believing that the surrender of Mr Cabal and Mr Pasini was actually sought for the purpose of prosecuting or punishing them on account of their political opinions, having regard to the seriousness of the allegations made against them. However these conclusions were properly open on the material, and no appealable error has been shown.

The “assumption of guilt”

169               It was submitted that French J had adopted an erroneous approach to the evidence in support of the extradition objections by assuming, when considering that evidence, that the appellants were guilty of the offences alleged against them.

170               In dealing with this submission it is important to set out accurately, and in context, what his Honour said about questions of guilt or innocence. All of his comments were made against the background of s 19(5) of the Act. As noted earlier, that section prevents a person from adducing evidence to contradict an allegation that that person has engaged in conduct constituting an extradition offence. Section 10(2) provides that the expression “conduct constituting an offence” as it appears in s 19(5) refers to the “acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed”.

171               In Wiest v Director of Public Prosecutions (supra) it was held that s 19(5) precludes evidence to the effect that a person lacked the mental element required for the commission of the offence from being led by that person. In other words the term “conduct” is to be construed broadly, and is not confined to “acts or omissions” in their literal sense.

172               French J said almost from the very outset of his reasons for judgment that the guilt or innocence of the appellants had not been in issue before the magistrate, and was not a matter which could be determined in the proceeding before him. Their guilt or innocence was, or would be, a matter for the Mexican courts, in the event that surrender was ordered. He said:

“[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.” (emphasis added)

173               Shortly thereafter his Honour referred quite specifically to the principal objects of the Act as set out in s 3. These objects include:

“(a) …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;”

174               It was submitted that, notwithstanding his Honour’s comments, it could be demonstrated that he had in fact proceeded upon the erroneous assumption that he was require to presume Mr Cabal and Mr Pasini to be guilty of the offences with which they were charged. It was submitted that this erroneous assumption pervaded and undermined all of his Honour’s findings regarding the extradition objections.

175               The critical passages relied on are as follows:

·        “[216]… 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.”

·        “[219]… 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.”

·        “[220] … 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.”

·        “[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….”

176               It is clear that s 19(5) of the Act neither requires, nor permits, a magistrate or a court on review to assume that a person whose extradition is sought is guilty of the offences alleged against that person. It merely precludes that person from adducing evidence that that person had not engaged in that conduct. To that extent, the appellants’ submission on this issue is correct as a matter of law. However, that is only the first hurdle to be overcome. The question to be determined is whether his Honour did, in fact, assume that they were guilty of the offences alleged against them.

177               It was first submitted on behalf of the first respondent that, contrary to what was now being said on behalf of the appellants, French J did not, at any stage, treat s 19(5) as requiring him to assume their guilt. Indeed, it was submitted that it was in fact the appellants’ own counsel below who had fallen into the very error of which the appellants now complained. In that regard we were taken to the appellant’s counsel’s submission before French J which was as follows:

“Now, evidence which is directed to their guilt cannot be contradicted because the Act says so, and secondly s 7, the proof of extradition objections presupposes evidence of guilt…. It is entirely consistent with the way the Act works that you assume for the purpose of argument that they may be guilty.” (emphasis added)

178               We have given careful consideration to the four passages set out above which were said to support this particular ground of appeal. In our view, when read in context, they do not reveal the error for which the appellants contend. It may be that some of the language chosen by French J was infelicitous. However, it is plain that what his Honour was seeking to do was no more than paraphrase generally the effect of s 19(5). That emerges with particular clarity in the first of these four passages where his Honour said that the issue “raised under s 7(b) must be raised on the premise that the person has engaged in conduct constituting the offence”. The fact that the issue raised under s 7(b) must be raised on that premise does not mean that the appellants are presumed to be guilty of the offences alleged against them. It means only that the allegation that they are guilty of those offences cannot be controverted under the guise of raising an extradition objection under s 7(b).

179               We are not persuaded that French J in fact assumed the guilt of the appellants. Even if he did, it does not follow that he allowed any such assumption to distract him from a proper consideration of the issues before him. What his Honour did was to recognise that the allegations made were extremely serious, and that those allegations could not be challenged in the proceeding before him. The fact that the allegations were extremely serious was, in our view, relevant to, though not in any way determinative of, the question whether the charges laid were politically motivated. An application for extradition for a relatively minor offence would, of itself, suggest an ulterior motive. That is not to say that the fact that serious charges have been laid, without more, supports the proposition that the prosecution is justified rather than being politically motivated. It is however a factor which may properly be taken into account. We can see no error in his Honour’s approach to this issue.

Exclusion of the “country information”

180               The appellants submitted that a misplaced concern on the part of French J about the generality of some of the material contained in the country information had led him erroneously to uphold the magistrate’s rejection of that evidence.

181               In dealing with this submission it is necessary to set out what his Honour said about the county information, and also the other evidence which he excluded. He observed:

“[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.” (emphasis added)

182               His Honour went on to say:

“[244] … 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.”

183               The magistrate’s reasons for having excluded the country information, which were endorsed by his Honour, are contained in a ruling delivered during the course of the proceeding. The magistrate said:

“In my view the Country Material, which I have had an opportunity to peruse, is not capable of being probative of any fact in issue by its very nature. There is no way of determining its objectivity, factual accuracy, currency or specific relevance. It is further, not capable of being the subject of cross-examination.

In my view, in these circumstances, it could never have sufficient weight, if indeed it is capable of having any weight at all, to meet the test of relevance. It is not capable of being probative of any fact in issue.”

184               It was submitted that this ruling was plainly erroneous. A person whose extradition was being sought ought to be permitted considerable latitude when seeking to adduce evidence in support of an extradition objection. While any ultimate conclusion in relation to an extradition objection had to be specific to the person whose surrender was sought, not every item of evidence led had to be of that character.

185               It was also submitted that the fact that those responsible for the preparation of the country information could not be the subject of cross-examination provided no basis for the exclusion of that evidence. The issue to be resolved was whether the contents of the country information gave rise to “substantial grounds for believing” that the extradition objection was made out, and not whether the conditions required for that objection were proved. Cross-examination of the authors of material of that type could hardly assist in resolving that issue.

186               Finally it was submitted that although French J had correctly recognised in his preliminary ruling that “second order or derivative material” might properly be admissible in support of an extradition objection, he had failed to give effect to that principle of admissibility in his final judgment.

187               The first respondent replied to these submissions by contending firstly that the country information contained a mix of general propositions about the Mexican legal and political systems which raised issues of a kind which a Court was not ideally equipped to resolve. It was further submitted that this material had been correctly excluded as a matter of procedural fairness. None of the authors of the reports contained in the volume of country information were to be called to give evidence, nor was any person who had participated in their preparation or compilation. There was no way of determining the objectivity, factual accuracy or even the specific relevance of this material.

188               It was further submitted on behalf of the first respondent that during the course of the proceeding before the magistrate the appellants had been unable to proffer any intelligible basis for the reception of this evidence. They had merely submitted that it was relevant, and that it was not practicable to call the authors of the various reports relied upon. When the matter came before French J on review they had articulated a different and perhaps more cogent case for its admissibility. Nonetheless, his Honour had determined that the evidence was insufficiently relevant to warrant admissibility. He had also determined that it was properly to be excluded because of considerations of procedural fairness. It was submitted that his Honour had not fallen into appealable error in arriving at these conclusions.

189               It seems to us that the learned primary judge’s ruling upholding the magistrate’s decision to exclude this material bears many of the hallmarks of the exercise of an exclusionary discretion. Proceedings for review brought in this Court under s 21 of the Act are subject to the operation of the provisions of the Evidence Act notwithstanding the fact that those provisions are not applicable to the initial proceedings brought before a magistrate under s 19 of the Act.

190               Section 135 of the Evidence Act provides that the court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party or be misleading or confusing or cause or result in undue waste of time. Section 136 of that Act provides that the court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to a party or be misleading or confusing. Although French J did not refer in terms to either of these sections, we consider that his Honour approached the question of admissibility of this evidence along broadly similar lines. The language in which his Honour expressed himself when explaining why this material had been excluded was very much the language of discretion as set out in these provisions. It follows from the discretionary nature of his Honour’s ruling that, in order for the appellants to succeed on this point, it is not enough that the judges composing this Court consider that, if they had been in the position of the learned primary judge, they would have taken a different course. It must appear that some error has been made in the exercise of what is essentially a discretionary judgment. There is nothing to suggest that his Honour acted upon a wrong principle, or allowed extraneous or irrelevant matters to guide or affect him or did not take into account some material consideration. See generally House v The King (1936) 55 CLR 499. We are not persuaded that any appealable error has been demonstrated.

191               The appellants also sought to rely upon s 39B(1A) of the Judiciary Act as a separate basis for review of his Honour’s decision to exclude this evidence. That section provides that the original jurisdiction of this Court also includes jurisdiction in any matter arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. It is a nice question, but one which need not be resolved in this proceeding, whether an extradition proceeding is relevantly a “criminal matter” within the meaning of s 39B(1A). In any event, French J noted that the grounds upon which the review under that section was sought were largely subsumed in the grounds for review under s 21 of the Act. He concluded that given that a review under the Act was a rehearing,albeit a rehearing confined to the material which was before the magistrate, nothing was to be gained by entering upon any separate consideration, under the provisions of the Judiciary Act, of the magistrate’s decision.

192               The country information excluded by the magistrate was voluminous, extending over many hundreds of pages. It included a series of reports said to contain information on political, legal and human rights conditions in Mexico. There were articles of a general nature prepared by thoroughly reputable organisations such as Amnesty International. There were also papers dealing with silencing dissent and the imprisonment of particular political leaders. There were chapters of books dealing with democratising Mexico. There were comparative analyses of crises in Mexico and Kenya. There were Human Rights Watch World Reports dealing with torture, “disappearance” and extra judicial execution in Mexico. There were also articles dealing with sundry topics such as economic reform and the weakness of the Mexican judicial branch.

193               Much of that material, though scholarly in form, was extremely general in nature. We do not propose to summarise its contents in any detail. It is sufficient for present purposes to say that the material seems to us to have comparatively little probative value in relation to the extradition objections raised under ss 7(b) and 7(c) of the Act. It is at best material which provides some context to a number of the assertions made on behalf of the appellants about the deficiencies of the political and legal systems in Mexico. Evidence of that nature was, of course, given by the various experts who testified on behalf of the appellants. It is questionable whether the country information would have added significantly to that body of evidence. We are inclined to think that it would not have done so.

194               Although it cannot be said that the country information tendered on behalf of the appellants but rejected by the magistrate was entirely irrelevant when considering the operation of ss 7(b) and 7(c), it was open to the learned primary judge to conclude that it was insufficiently relevant to warrant admissibility. It had comparatively little probative value, and that probative value was substantially outweighed by the unfair prejudice which would be occasioned to the first respondent by its reception into evidence. In general the authors of the material were unavailable to be cross-examined about its contents. It added little of substance to what was not really in dispute. In our view, his Honour’s decision to exercise his discretion to exclude this evidence does not disclose any appealable error.

195               Some of the other documents tendered before the magistrate, but rejected, purport to show that, contrary to the assertions made in the warrants, there were no irregular transactions involving Banco Union. These documents were, on any view, inadmissible. Section 19(5) of the Act precludes their tender.

ALLEGED ERRORS OF FACT

The weight accorded to the evidence of the experts

196               It was submitted on behalf of the appellants that the learned primary judge had failed to accord proper weight to the evidence given by their experts. His Honour concluded that much of this evidence was “too general and too vague” to be of any real assistance. It was submitted that in arriving at that conclusion he failed to appreciate that evidence which bears upon extradition objections such as those contained in ss 7(b) and 7(c) of the Act must, of necessity, be general, and possibly also vague. Such evidence was said to be relevant because it provided the context within which the more specific claims made by the appellants could be considered. It was further submitted that evidence of a general nature was capable of corroborating those more specific claims.

197               It was also submitted on behalf of the appellants that his Honour had not been justified in expressing a number of the reservations which he did about the evidence given by these experts.

198               The first respondent challenged these contentions. It was submitted that his Honour was fully justified in characterising the evidence of the experts as being both general and vague. It was also submitted that his Honour had been entitled to express reservations about certain aspects of that evidence.

199               It was submitted that a number of the opinions expressed went beyond the expertise of the experts. It was also submitted that the experts had been less than candid. It was said that they had been prepared to make sweeping assertions about the Mexican political and legal systems which were not supported by any specific facts. In addition, complaint was made of the fact that senior counsel for the appellants had failed to give Mr Dela Guardia, the expert called on behalf of the first respondent, an opportunity to comment upon the matters which were subsequently the subject of the evidence given by the appellants’ experts.

200               It was submitted that a careful analysis of the evidence given by Professor Roett, Professor Valdez, and Mr Guerra would demonstrate that what they said did not significantly advance the appellants’ case. It is necessary to set out in some detail the nature of the evidence given by each of these witnesses.

201               Professor Roett was a graduate in Political Science from Columbia University. He held a Chair in International Relations at the School for Advanced International Studies at Johns Hopkins University. He had specialised for many years in dealing with comparative political institutions in countries such as Brazil, Argentina, Chile, Venezuela, Peru and – in more recent years – Mexico. He had written or edited several books dealing with Mexican politics and in particular its foreign policy and relationship with the United States. He had formerly been a consultant to the Chase Manhattan Bank, and a media commentator. He had visited Mexico on a regular basis, often several times a year.

202               Professor Roett was asked how he would characterise the Mexican political system. He said:

“The Mexican political system at the present time is an authoritarian system, that is a system still dominated by one political party that is in transition we hope towards a greater democratic political system. The most progress thus far has been made on the side of elections, that is elections in Mexico have become not totally – but increasingly honest and transparent…

What has not made as much progress and indeed is quite lagging in terms of the transition to a more open competitive democratic system is the judicial system of Mexico… ”

203               Professor Roett described the President of Mexico as being “all-powerful”, and as having “complete control” of almost all the institutions of government. He described the Mexican political process as being subject to corruption. He claimed that the Mexican judiciary was placed under pressure by the government to do what the government wanted it to do, and he referred to a speech by President Zedillo at his inauguration in 1994 in which he made a major point of the need in Mexico for judicial reform because of corruption. He said that although the Mexican Constitution made provision for the separation of powers between the legislative, executive and judiciary, that doctrine did not apply in practice. He asserted:

“… our evaluation is almost all major judicial decisions were respondent to political interests or to political concerns on the part of the executive in Mexico”.

204               Professor Roett was asked about whether the rule of law existed in Mexico. He replied:

“… unfortunately the rule of law as we understand it in Australia, the United States, the United Kingdom does not exist in Mexico”.

205               Professor Roett referred to a series of reports that he had read which were written by organisations like Amnesty International which he said:

“…have corroborated at the grass roots level the absence of the rule of law, the use of torture, intimidation, disappearance – often by the police, so that the last thing you want to do is go to the police in Mexico. The next last thing you want to do is go to court in Mexico.”

206               He referred to a comment by one of his colleagues, a professor of law in Mexico that “judges in Mexico sell justice”. He was asked whether he had any personal experience or had conducted any research supporting these views. He replied:

“I have not conducted that research, the judicial process is not my area of specialisation but there are a number of my colleagues over the last three to five years, who have conducted a series of on the ground research into the Mexican judicial system…”

207               Professor Roett was asked to comment upon the advertisement published by the PRI in 1999 concerning Mr Cabal. He said that it was highly unusual in his experience in Mexico to have a personalised attack of that type made against an individual.

208               Under cross-examination Professor Roett was asked whether he knew Ms Rosario Green, the present Foreign Minister of Mexico and the person who had made the request for Mr Cabal’s extradition. He said that he knew her well and that he did not believe that she was corrupt. He had not spoken to her about this case before giving evidence. He acknowledged that he knew nothing about the process of extradition. He acknowledged also that in a proof of evidence which he had signed he had expressed the opinion that the reason why Mr Cabal’s extradition was being sought was because of his relationship with Mr Colosio and his position as an outsider and interloper who broke the rules of the Mexican political system. He also asserted that Mr Cabal was a scapegoat for the 1994 economic crisis in that country. He was asked whether he knew any of the details of the allegations against Mr Cabal. He conceded that he did not, and he regarded them as irrelevant to the opinion which he had formed. He claimed it would be impossible for Mr Cabal to receive fair treatment in Mexico.

209               Professor Roett acknowledged that he had not seen the article written by Mr Oppenheimer about Mr Cabal which had preceded the PRI publication. He acknowledged too that he knew nothing about how trials took place in Mexico. The transcript records the following exchange:

“You yourself don’t know what the process of giving evidence is? - No.

Have you ever been in a Mexican court? – No, I have not.

Have you ever studied the procedures of a Mexican court? – No I have not.

The basis of your knowledge is … essentially media reports, is it, and talking to people? – Media reports and consulting with people, yes.

Do you know any of the people who are likely to be deciding the case, if it gets to Mexico? – I do not.”

210               Professor Roett reiterated that it was his belief that because Mr Cabal was a major political figure he could not receive a fair trial in Mexico. He conceded, however, that at least some of his views regarding the situation in Mexico were considered controversial. He acknowledged that his services with the Chase Manhattan Bank had been terminated after he had suggested that Mexico ought to take steps to “eliminate” a particular group of insurgent rebels, an unfortunate choice of language.

211               It was submitted that the learned primary judge could hardly have been expected to accord any weight to evidence of this kind, largely unsupported by specific facts which might justify the opinions expressed. It was submitted that Professor Roett’s description of the political and governmental systems in Mexico lacked detail and was based almost entirely upon hearsay. Although he had been prepared to comment upon “selective prosecutions”, Professor Roett had no direct knowledge of such matters, and had never conducted research into them.

212               It was submitted that Professor Roett had expressed opinions which ought to be regarded as “absurd”. He asserted that the extraditions of Mr Cabal and Mr Pasini were politically motivated. He said that the issue of their guilt or innocence had nothing whatever to do with the Mexican Government’s request for their return. Yet he readily acknowledged in cross-examination that he knew nothing about the nature or strength of the case brought against them. It was submitted that, notwithstanding his impressive formal qualifications, Professor Roett was something of an extremist, and his opinions ought to have been accorded little weight.

213               Professor Valdez was a Professor of Law and a Professor of Political Science at Camino A Santa Teresa in Mexico. He held a Chair at the National University of Mexico and had been a Professor of Political Law at the Mexican Technological Institute. He had undertaken a PhD at Harvard University, and had written a dissertation upon the power of the Supreme Court of the United States. He had been a Professor in the Law Faculty of the National Autonomous University of Mexico and had specialised over the years in civil procedure and constitutional law.

214               Professor Valdez gave evidence about the Mexican political system. He said that he did not consider Mexico to be a democracy but rather “an extraordinarily sophisticated dictatorship”. He said that the Mexican political system used the law in ways which were inimical to the rule of law. He gave as an example selective prosecutions for tax fraud in circumstances where those charged had failed to display loyalty to the governing regime.

215               Under cross-examination Professor Valdez acknowledged that he had not practised in the criminal law since the 1980s. He did not know any of the judges who had issued warrants against Mr Cabal and Mr Pasini. Nor had he seen the terms of those warrants. Professor Valdez could not identify any instance where any of those judges had not acted in accordance with his or her oath of office. He had never been asked to consider whether the accusations made against Mr Cabal and Mr Pasini appeared to be plausible. Nor had he been asked to consider the merits of the charges brought against them.

216               Mr Guerra had a degree in Political Science from the Autonomous University of Mexico and a Postgraduate Diploma in Political Analysis from the Centre for Research and National Security. He had been a Professor in the Faculty of Political Science at the University of Unam between 1982 and 1986. He had also taught at various other Mexican Universities. He had been a journalist writing a political column in a daily newspaper in Mexico City and a radio broadcaster and had held various government positions.

217               Mr Guerra described the level of power and influence of the PRI in Mexico. He said that it was broadly known that corruption existed in many areas of government. He gave several examples of what he described as “political revenge” having been taken by a new President against the associates of a former President. He described the significance of the Mr Colosio’s candidature for President and his reputation among the general populace. He contrasted that with the reputation of President Zedillo who was an economist and a technocrat.

218               Mr Guerra was shown the PRI publication concerning Mr Cabal. He proffered the opinion that it demonstrated that the extradition proceeding involved “a political persecution”. He added that one did not need to be an expert to draw that conclusion.

219               Under cross-examination Mr Guerra acknowledged that he had formerly been employed by a body known as CISEN which, it was suggested, was the Mexican equivalent of the American CIA. He also acknowledged that among a list which he was shown of supporters of Mr Colosio, a number held significant positions in the Mexican Government and had not been discriminated against in any way. He acknowledged that he had no idea of the background to the PRI advertisement. He accepted that he had taken no steps to find out what had provoked that publication.

220               It was submitted that the evidence of Professor Roett, Professor Valdez and Mr Guerra was too general to be of any significant assistance in resolving the issues before the Court. French J had concluded that their evidence was “of marginal relevance”, at best, to those issues. His Honour concluded that it was of “little utility”. He said that it contained normative statements of historical, social and political issues with which a court was ill-equipped to deal. He also concluded that much of their evidence was polemical in tone, and did not provide any secure foundation from which to make a judgment about the reasons why the charges against Mr Cabal and Mr Pasini had been laid.

221               It was submitted that the evidence given by Mr Zinser could hardly be viewed as impartial. He had been Mr Cabal’s lawyer since August 1994, and a legal adviser to Mr Pasini since 1996. Although the magistrate did not say that she discounted his evidence on that basis, French J plainly considered that it carried little weight. His Honour had been entitled to come to that conclusion.

222               We were invited to consider for ourselves, as his Honour had done, the transcript of the evidence given by each of these four witnesses. It was submitted that because his Honour had carried out his assessment of their credibility without having had the benefit of observing their demeanour, the members of this Court were in as good a position as his Honour was to form views about the weight to be accorded to their evidence. In one sense that submission is correct. However, it must be borne in mind that this is an appeal against his Honour’s decision to affirm the magistrate’s decision that the appellants were eligible for surrender. The appeal is of course by way of rehearing, rather than an appeal strictu sensu; Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at par 75 per Gleeson CJ and Gummow J, cf Duralla Pty Ltd v Plant (1984) 2 FCR 342 at 349-353 a decision described by Kirby J in footnote 73 in Jia as erroneous.

223               The principles which govern the review by a Full Court of a primary judge’s findings of fact are as stated in Warren v Coombes (1979) 142 CLR 531. See also Abalos v Australian Postal Commission (1988) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588. In general on an appeal by way of rehearing from a judge sitting without a jury an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge. However, once having reached its own conclusion it will not shrink from giving effect to it.

224               Notwithstanding the fact that the learned primary judge’s review was conducted on the papers, and without any opportunity to consider the demeanour of the witnesses, the weight to be accorded to the evidence of the experts was primarily a matter for his Honour to determine. This Court can consider whether he fell into appealable error in that regard but it will not approach that evidence as though this were a rehearing de novo in which his Honour’s views count for nought. If, after giving full weight to his Honour’s views, we are persuaded that the conclusions which he reached were erroneous we must set aside his findings of fact. We cannot however simply substitute for his Honour’s findings of fact those findings which we would have made had we been the judges on review who determined this matter at first instance.

225               Expert evidence on a particular matter is admissible if it has both relevance and probative value in relation to that matter. There is no difference in that regard between the assessment of expert and other evidence. The credit of the witness, as revealed by the content of the witness’ evidence and, in most cases, the demeanour of the witness, and the manner of answering questions may all be relevant. There is no principle which holds that merely because the opinion expressed by a particular expert is not controverted by an opposing opinion, that first opinion must be accepted. Nor is there any principle which holds that once an opinion has been expressed by an expert, a Court is bound to find that there are “substantial grounds for believing” that the content of that opinion is true.

226               The conclusions reached by French J regarding the weight to be accorded to the evidence given by the appellants’ experts were all properly open on the evidence. For the reasons given by his Honour the views expressed by these witnesses were in various ways tainted or to be accepted only with reservations. We do not accept that his Honour failed to accord proper weight to that evidence. Nor do we consider that any of his Honour’s findings of fact relating to that evidence were in any way incorrect.

The opinions held by Mr Cabal and their significance to the Mexican Government

227               It was the appellants’ case that Mr Cabal’s surrender was actually sought for the purpose of prosecuting or punishing him on account of his “political opinions”. The first step in that argument was to establish that the opinions he held were relevantly to be characterised as “political”. Those opinions included:

·                     a concern about the backwardness of the south-east and a desire to see development in that region;

·                     a concern about inequality and the role of the elites;

·                     a desire to acquire a bank as a tool for development in the poorer regions;

·                     a desire for independence from government;

·                     support for Mr Colosio’s program; and

·                     disagreement with Mr Zedillo’s policies.

228               The appellants contended that Mr Cabal both held and expressed these opinions prior to being charged with the offences for which his extradition was sought. They also contended that Mr Pasini was perceived to share the same opinions by reason of his having supported Mr Cabal.

229               This aspect of the appellants’ case appears to have been based largely on the evidence which they themselves gave before the magistrate. However, it was also said to have been bolstered by the more general evidence given by the appellants’ experts, and by some of the reports contained in the country information.

230               The learned primary judge observed that where a person whose extradition is sought raises a “political objection”, the necessity of linking that person’s political opinion to a prosecutorial or punitive response would require a demonstration of the “practical significance” of that opinion to the requesting government. The correctness of his Honour’s observation was not challenged before us.

231               It was submitted, however, that French J had, without justification, referred to Mr Cabal’s professed political opinions in a manner which was “guarded” and “disparaging”. It was said that the word “political” in s 7(b) (and indeed in s 7(c) as well) should be construed broadly, and against the background of the long-standing principle (now embodied in s 7(a)) that extradition will not be permitted where the offence in question is a “political offence”. In that connection, a lengthy definition of “political offence” appears in s 5 of the Act. The concept of a “political offence” has been considered on a number of occasions: see for example Schtraks v Government of Israel [1964] AC 556 at 589.

232               It has been suggested by Aughterson (supra) at 100-101 that the broad approach taken to the meaning of the word “political” in s 7(a) ought also to be taken in relation to the same word in ss 7(b) and 7(c). It was submitted on behalf of the appellants that, assuming that Mr Cabal held some or all of the beliefs outlined above, those beliefs amounted to “political opinions”.

233               It is clear that French J expressed a degree of scepticism about Mr Cabal’s professed beliefs. His Honour noted that there was no evidence that Mr Cabal had at any stage prior to publishing his open letter in November 1994 publicly expressed any belief about the importance of the independence of big business from government. It was significant, his Honour thought, that the first public expression of this view took place several months after the initial charges were laid. It was submitted on behalf of the appellants that his Honour’s scepticism regarding the genuineness of Mr Cabal’s beliefs was unwarranted. It was said that Mr Cabal had, at least by implication, expressed similar views for many years through his dealings with the upper levels of the PRI in Government.

234               It is important to note what his Honour said about Mr Cabal’s professed beliefs. He said:

“[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.” (emphasis added)

235               His Honour reiterated this conclusion at par 243 of his judgment. In that passage he characterised the asserted political opinions, actual and imputed, as being of “relevant insignificance” to the Mexican Government.

236               It is plain from the passages set out above that whatever reservations his Honour may have had about the genuineness of Mr Cabal’s beliefs, those reservations were of minimal importance to his Honour’s conclusion that there were no substantial grounds for believing that the extradition objections were made out. His Honour was prepared, for the sake of argument, to assume that Mr Cabal held the beliefs which he professed. He was also prepared to assume that those beliefs could be imputed to Mr Pasini. However, it was his finding that any political opinion which Mr Cabal expressed or acted upon was not “in any way of great significance to the Mexican Government” which led him to conclude that the elements required by ss 7(b) and 7(c) to be made out were absent.

237               It was submitted on behalf of the appellants that there was no justification for his Honour’s conclusion that Mr Cabal’s political opinions were of no great significance to the first respondent. That conclusion was said to stand in stark contrast with the evidence given by Professors Roett and Valdez. It was also said to be impossible to reconcile with the contents of some of the reports contained in the country information which had been tendered but not received. It was said that his Honour’s judgment was flawed because this particular conclusion was “unsupported by any reasoning”.

238               In answer to these submissions, the first respondent contended that there was no evidence to suggest that Mr Cabal ever held any “political opinion” which was likely to have been regarded as being of any significance to the Mexican Government. It was noted, for example, that Mr Cabals beliefs in 1991 accorded in general terms with many of the beliefs then held by President Salinas. It was submitted that none of Mr Cabal’s beliefs were, in any serious way, in conflict with the policies espoused by either the Mexican Government or the PRI.

239               It was further submitted by the first respondent that there was no evidence to suggest that Mr Cabal was a man whose political opinions were such that the Mexican Government would seek to punish him for expressing or acting upon them. It was said to be highly significant that there was no evidence to suggest that Mr Cabal had expressed these opinions publicly prior to his open letter of November 1994. It was also said to be significant that Mr Cabal had not sought asylum anywhere prior to being arrested in Melbourne on 11 November 1998. That suggested that his attempt to rely upon the “political opinions” grounds in ss 7(b) and 7(c) of the Act was little more than an afterthought, deliberately and carefully contrived.

240               In evaluating these competing contentions it may readily be acknowledged that the expression “political opinions” as that expression appears in ss 7(b) and 7(c) of the Act is one of considerable breadth. Nonetheless, it is obvious that some political opinions are, by their very nature, more likely than others to provoke a government into seeking to “prosecute” or “punish” those by whom they are held or expressed. Mr Cabal said that the “political opinions” which he held in 1994 (when charges were first laid against him) included “freedom from political interference”, “the right to an opinion on the role that government should play in the growth of Mexico” and “the right to support candidates for political positions based on their policies and plans for the future”. Even when “viewed in the Mexican context”, with due allowance being made for the different legal and political culture prevailing in that country, political opinions such as these seem to us to be so vague and amorphous as to constitute no threat to anyone, let alone the ruling party in Mexico. They are hardly the stuff of revolution. It should also be remembered that Mr Cabal was able to have published in the Mexican press on 5 November 1994 an open letter setting out in detail his claims against the Mexican law enforcement authorities. That suggests that however repressive the regime then in power in Mexico may have been, that regime still did not entirely stifle a free press.

241               Mr Cabal’s political opinions are, at the end of the day, simply the opinions of a businessman, albeit a businessman who is, or was, particularly well connected. Opinions such as these are to be contrasted with the political opinions held by politicians or those more directly involved than Mr Cabal in political affairs. Political opinions of that type can, in some circumstances, represent a threat to those entrenched in positions of power. They are far more likely than the opinions held by Mr Cabal to be regarded by those in power as being significant. And they are far more likely, in the case of an undemocratic regime, to provoke the laying of charges which are politically motivated.

242               French J concluded that the contention that Mr Cabal’s surrender was actually sought for the purpose of prosecuting or punishing him on account of his “political opinions” had “an air of unreality” about it. Not only was that conclusion open on the evidence, but it is one which we ourselves would also arrive at. Even accepting, as his Honour did, that it is not necessary for the purposes of s 7(b) that the first respondent’s request for Mr Cabal’s surrender be solely attributable to his political opinions, and that it is sufficient that those opinions form one of the reasons for that request, there must still be demonstrated a causal link between those opinions and the request for surrender. As his Honour correctly observed:

“[218] … 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).”

243               It is clear that the offences alleged against Mr Cabal and Mr Pasini are extremely serious. The charges in the first request involving Mr Cabal relate to banking offences and fraud involving approximately US$242,722,590. Those in the second request relate to money laundering, tax fraud and a banking offence involving in excess of US$50,000,000. The charges against Mr Pasini relate to aiding and abetting a banking offence and concealment, and involve about US$80,000,000. As his Honour said:

“[219] … 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.”

244               In our view, it was open to his Honour to have regard to the seriousness of the offences alleged in arriving at the conclusion that the extradition objection under s 7(b) was not made out. We can find no error in his Honour’s reasoning in that regard.

245               It was submitted on behalf of the appellants that the evidence demonstrated that by 1994, Mr Cabal’s political opinions had brought him into conflict with the Mexican Government. He had ignored directives issued by the Ministry of Finance to bring Mr Creel into his bank tender. He had resisted attempts to control lending to the south-east. He had defied the authority of the Mexican President and the ruling party, and had declined to deliver funds as pledged for Mr Zedillo’s campaign, ignoring President Salinas’ instruction that he do so. Both Professors Roett and Valdez said that this type of defiance would be likely to provoke a punitive or disciplinary prosecution against him.

246               It was further submitted on behalf of the appellants that conflict over bank privatisation and operations stemming from Mr Cabal’s beliefs about the need for independence from government, and resistance to the pressure placed upon him by Mr Ortiz and Mr Aspe, both close friends and political allies of Mr Zedillo, lay behind the decision to seek his surrender.

247               It is sufficient to say that French J did not view this evidence in this way. Nor was he prepared to conclude that Mr Cabal’s failure to make the payment of an extra US$5,000,000 after Mr Colosio’s assassination amounted to an expression of “political opinion”, let alone an opinion of a type which could be said to account for the request for his surrender. Even if it were to be assumed that Mr Cabal’s failure to make that payment can properly be characterised as an expression of “political opinion”, we can see no error in the latter part of his Honour’s conclusion in that regard.

The speed with which the warrants were issued

248               It was submitted on behalf of the appellants that French J erred in failing to give proper weight to the evidence concerning the speed with which the warrants against Mr Cabal had been issued. The complaint made by the Ministry of Finance had been filed with the Federal Prosecutor on 30 August 1994. The first warrant, or judicial order of apprehension, was granted within 24 hours, on 31 August 1994. It was submitted that this warrant, which took the form of “a reasoned judgment” of some 142 pages in length, and which set out a series of complex transactions, was not readily capable of being understood. The inference to be drawn from the haste with which the warrant was issued was that the issuing judge had merely “rubber stamped” a document which the prosecuting authorities had placed before him. That was said to be indicative of the fact that the judge must have had political pressure exerted upon him, and therefore to support the contention that the prosecution was politically motivated.

249               It was submitted on behalf of the appellants that French J had left unanswered three important questions regarding this issue. How had the Federal Prosecutor been able to conduct his entire investigation in less than 24 hours? How had the judge who issued the warrant analysed the file in less than a day? And could that judge possibly have drafted and settled 142 pages of “reasoned judgment” in that period?

250               It was submitted that none of these questions had been answered satisfactorily and that at least one of the answers which had been proffered on behalf of the first respondent was demonstrably false. It had been contended before the magistrate that the investigation into Mr Cabal’s conduct had in fact extended over a very considerable period. Reference had been made, somewhat misleadingly it was said, to a routine audit letter dated 27 July 1993 in support of that contention. However, that letter had been sent by the National Banking Commission to Banco BCH, and did not refer to the conduct of Mr Cabal. It had merely advised of irregularities detected during the audit. It could hardly provide support for the contention that there had been an ongoing investigation into Mr Cabal’s conduct going back to 1993.

251               In answer to the submission that there was no satisfactory explanation for the extraordinary speed with which several of the early warrants had been procured, it was suggested on behalf of the first respondent that the Federal Prosecutor might have provided the judge with an analysis of the case on computer disk, which the judge might simply have used as the basis for the reasons in support of the warrant. There was, of course, no evidence that this had occurred. It was submitted on behalf of the appellants that even if that explanation were otherwise plausible, it failed to account for the remarkable speed with which the facts had been analysed and digested by the judge.

252               Similar concerns were said to arise with respect to three other warrants which were issued on the day they were sought. These were warrant 2 which was issued on 2 September 1994 and was 46 pages in length, warrant 7 which was issued on 24 October 1995 and was 44 pages in length, and warrant 13 which was issued on 11 May 1998 and was 111 pages in length. In addition, warrant 3 of the second request for Mr Cabal was issued on 22 December 1998, one day after it was sought. That warrant was 118 pages in length.

253               It was submitted that French J failed adequately to deal with the implications which flowed from this evidence. His Honour observed:

“[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.”

254               It was submitted that his Honour’s reasoning in this passage was defective in several ways. First, it assumed that the number of compliant judges was narrow. That assumption was unwarranted and conflicted with the evidence given by Mr Zinser. Second, as regards the various steps that had to be taken before a request for extradition was made, it missed the point. The evidence was that all of the “different people” involved in each of those steps were the President’s to command, as were most, though not all, of the judges.

255               In our opinion the appellants’ submissions must be rejected. It is plain from the evidence that investigations into the conduct of Mr Cabal, and in particular into the alleged irregularities identified in the letter of 27 July 1993, must have been going on for a considerable time prior to 30 August 1994. There is nothing to suggest that the Federal Prosecutor was not kept informed of the progress of that investigation, or that he was not involved in the formulation of the charges set out in the warrants. It would be fanciful to imagine that some level of consultation did not occur.

256               We were invited by senior counsel for the appellants to consider for ourselves the scope and complexity of the allegations contained in the warrants. It was said that if we did so, we would readily conclude that they must have been issued after only the most perfunctory perusal.

257               In our view it would not be proper to draw that conclusion. We are satisfied that even the longest and most complex of these warrants could be read and understood within a relatively short period. Much of the material contained within the warrants was in narrative form. Some of it was repetitive in nature. The task which the judges who issued these warrants was required to perform was not all that different from that traditionally performed by a number of the judges of this Court when, in the past, acting persona designata,they authorised warrants to issue under the Telecommunications (Interception) Act 1979 (Cth). That task often had to be carried out quickly, and on the basis of material which was sometimes prolix.

258               Nor are we prepared to infer that the fact that the warrants were supported by extensive reasons, produced at short notice, meant that they had been “rubber stamped”. The likelihood is that, as would be the position in this country, a draft order would have been submitted to the judge for approval. That draft order may have been regarded as acceptable, or may have been adapted by the issuing judge. It is impossible to draw any firm conclusion about this matter. However, it was open to his Honour to conclude that the speed with which these warrants were issued did not mean that they were the product of political pressure having been applied to those who issued them.

The issue of quebranto

259               The next submission on behalf of the appellants related to the issue of quebranto. It was contended that this element of the banking offences alleged against Mr Cabal and Mr Pasini – the loss that flows to a bank when a loan is irrecoverable – had been created artificially solely for the purpose of enabling those offences to be charged. That too was said to support the inference that the charges had been politically motivated.

260               The principal evidence relied upon to support this contention was given by Mr Zinser. He said that the Ministry of Finance was the only body with the legal power to file the complaint, or querella, in respect of banking offences, and that it was the filing of that complaint which enlivened the power of the Federal Prosecutor to conduct a criminal investigation.

261               Mr Zinser said that it was obvious that Mr Aspe, Mr Ortiz and Mr Fernandez had cooperated closely to bring the prosecution against Mr Cabal. He said that the National Banking Commission was nothing more than a division of the Ministry of Finance. He said that it was the responsibility of the Ministry of Finance and the National Banking Commission to take steps to recover the loans. It was only if those loans were irrecoverable that they could be written off. It was only after they had been written off that a complaint could be filed enabling an investigation to be conducted.

262               It was submitted that it was remarkable that neither the Ministry of Finance nor the National Banking Commission had appeared to display any interest in attempting to recover the loans which were the subject of the complaints. It will be recalled that on 31 August 1994, the very day on which the Federal Prosecutor sought and obtained the first warrant based on an alleged transaction of US$100,000,000, Mr Cabal met with Mr Aspe, Mr Ortiz and Mr Fernandez. Mr Cabal gave evidence that during the course of that meeting he told them that he had just secured a personal line of credit for the sum of US$110,000,000 in Switzerland. He said, however, that they showed no interest in that fact.

263               Mr Zinser also said that on 12 July 1999, one of the individuals accused with Mr Cabal of having committed the banking offences had obtained an Amparostay nullifying the warrants issued against him. Amparo means, literally, “shelter” or “protection”. An Amparo stay on an arrest warrant prevents the responsible authorities named in the stay from executing the warrant: see Bertran v Vanstone (supra)per Kenny J at par 23; Peniche v Vanstone (supra) per Drummond, North and Gyles JJ at par 19.

264               The warrants which were the subject of the Amparo stay were based on the same transactions as those which were the subject of warrants 8, 9, 10, 11 and 12 of the first request, and warrant 2 of the second request. Mr Zinser said that the Amparo judge had found that the files contained no evidence to suggest that there had been any attempt on the part of the National Banking Commission to recover any of the outstanding loans. That meant that quebranto could not be established. The fact that the loans had been written off was not sufficient to satisfy that element. It was submitted that French J ought to have addressed Mr Zinser’s evidence in this regard in his reasons for judgment, but had not done so.

265               We are unable to accept this submission. French J certainly noted that Mr Cabal’s “co-accused” had been successful in seeking and obtaining Amparo and other interlocutory relief. His Honour was aware of the fact that there had been evidence led before the magistrate that the prosecuting authorities in Mexico were seeking to review the correctness of the decision of the Amparo judge concerning the absence of the element of quebranto. There was also evidence to the effect that Amparo judgments are not regarded as binding precedents. Although his Honour did not refer to Mr Zinser’s evidence regarding quebranto in terms, in our view he was not bound to do so. Mr Zinser’s evidence on this point at best formed only a very small part of the totality of the evidence led before the magistrate. It was open to his Honour to regard that evidence as being relatively insignificant. A judge who is asked to review findings of fact is under no obligation to deal specifically, and in terms, with every factual argument presented before him. We consider that it was open to his Honour to focus upon those aspects of the appellants’ case which were plainly significant. Mr Zinser’s views about quebranto did not fall into that category.

Admissions made by Mexican Government officials

266               It was next submitted on behalf of the appellants that French J failed to deal adequately, or at all, with a separate body of evidence which demonstrated that the case against Mr Cabal was politically motivated. Mr Cabal said that Mr Fernandez told him during the course of the meeting on 31 August 1994 that the processes which had been set in train against him were being directed by the President. Both Mr Cabal and Mr Pasini said that Mr Ponce made similar statements to them on other occasions.

267               French J dealt succinctly with the evidence concerning Mr Ponce’s supposed remarks when he said:

“[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.”

268               It was submitted firstly that in this passage his Honour appeared to have doubts as to whether Mr Ponce had made the statements which Mr Cabal and Mr Pasini attributed to him. It was submitted that there was no proper basis for any such doubts as Mr Ponce was not called by the first respondent to rebut the evidence given by the appellants. It was said that it was not sufficient for the first respondent simply to have challenged the appellants’ evidence in this regard in cross-examination.

269               It was next submitted that his Honour erred in construing the words allegedly used by Mr Ponce as being merely those of “an investigator trying to pressure a suspect into cooperation”. If Mr Ponce had indeed made these statements, and if they were true, it was said that they provided powerful support for the contention that the prosecutions were politically motivated. If, however, he made these statements without any proper foundation, the very fact that he believed that they would be given credence was said to provide similar support for the same contention.

270               It was contended on behalf of the first respondent that these submissions should be rejected. Whatever Mr Ponce may have said or believed, his statements and his beliefs were those of an investigator and not of a prosecutor or judge. His words could not constitute admissions which were in any way binding upon the first respondent. Nor could they, of themselves, establish the existence of an extradition objection.

271               In our opinion the views allegedly expressed by Mr Fernandez and Mr Ponce cannot, in any relevant sense, be regarded as “admissions” binding upon the first respondent. The statements supposedly made by Mr Ponce were capable of being characterised as his Honour characterised them. Even assuming that those statements were made, it was open to his Honour to accord them little weight.

The PRI advertisement

272               The appellants relied upon the PRI advertisement which appeared in major Mexican newspapers on 15 July 1999. As noted earlier that advertisement was triggered by the release on 23 March 1999 of Mr Cabal’s media statement and the article published in The Miami Herald on 29 May 1999. The PRI advertisement was said to contain a vituperative attack on Mr Cabal. Both Professor Roett and Mr Guerra said they had never seen anything like it before.

273               The advertisement was said to contain three assertions, all of them relevant to the extradition objections relied upon. These were:

·                     that Mr Cabal had destroyed Banco Union by his own illegal operations which had woven a complicated web of fraud committed with the expectation that his contributions to the PRI would buy him impunity;

·                     that he was lying about being prosecuted for political reasons, and also lying about the Banco Union campaign contributions, all of which had been strictly legal; and

·                     that the PRI was committed to bringing the full weight of the law to bear upon him.

274               It was submitted that French J had treated this evidence dismissively, barely adverting to it in his reasons for judgment. In the context of the extradition objection based upon s 7(b), his Honour said:

“[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.”

275               When his Honour came to deal with the extradition objection based upon s 7(c) his Honour made no specific reference to the PRI advertisement. However, he said:

“[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 borne 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.”

276               It was submitted on behalf of the first respondent that his Honour’s discussion of the significance of the PRI advertisement disclosed no error of any kind. It was said in relation to the extradition objection under s 7(b) of the Act that a document produced by the PRI in 1999, in response to Mr Cabal’s public protestations about the treatment meted out to him, could hardly form the basis for a conclusion that charges laid against him in 1994 had been politically motivated. It was further said in relation to the extradition objection under s 7(c) of the Act that, taken at its highest, the advertisement merely showed that Mr Cabal might now be regarded as unpopular in Mexico. That was said to be hardly surprising having regard to the magnitude of the financial losses suffered as a result of the various frauds alleged against him.

277               The first respondent referred to Ujiie v Republic of Singapore [1995] FCA 855 where, in the context of an extradition objection brought under s 7(c), Wilcox J said:

“[32] The possibility of prejudice at a trial can never be ruled out. If it was a sufficient objection to an extradition that there was a possibility of prejudice at the trial, regardless of the reason, nobody could be surrendered.”

278               It was further submitted that an extradition objection under s 7(c) is not made out merely because the person whose extradition is sought can point to evidence which suggests that he will be “prejudiced at his trial”, or that he will “be punished, detained or restricted” in his personal liberty if surrendered. To satisfy the requirements of s 7(c) it must be shown that one or other of these consequences will be brought about by reason of that person’s “race, religion, nationality or political opinions”: Hempel v Attorney-General (Commonwealth) (supra) at 663-664; and Stanton v DPP [1993] FCA 20.

279               Australia has extradition treaties with many countries. A number of these countries have legal systems very different from our own. Some of them would not be regarded as affording those charged with serious criminal offences anything approximating what we would consider “a fair trial”. They appear to have little regard for the importance of an independent judiciary and the rule of law. Some are reputed to be governed by regimes which are thoroughly corrupt. The choice of whether or not to enter into extradition treaty arrangements with such countries is a matter for the Australian Government. The Court is concerned with ensuring that the requirements of the Act are fully met, and not with the wisdom or otherwise of having entered into such treaty arrangements.

280               Whether the Mexican criminal justice system affords adequate protection to those charged with the commission of offences may be a matter for debate. There may be serious deficiencies in the way in which the criminal justice system of that country operates. The existence of such deficiencies does not, of itself, provide a basis for concluding that an extradition objection under s 7(c) has been made out. The critical issue as far as this Court is concerned is whether the specific conditions set out in that section have been made out. In the present case that means prejudice at trial, or prejudice, detention or restriction in his or her personal liberty “by reason of his or her … political opinions”. It does not mean prejudice at trial, or prejudice, detention or restriction in his or her personal liberty because the system of criminal justice in that country is far from perfect.

281               We can discern no error in his Honour’s reasoning in relation to the PRI advertisement. The weight to be accorded to that evidence was primarily a matter for his Honour. We agree with his Honour’s conclusion that, having regard to the circumstances of the advertisement’s publication, it did not significantly advance the appellants’ case.

Pressure by Mexican Government officials on witnesses

282               The final matter relied upon by the appellants as demonstrating that his Honour had failed to accord proper weight to the evidence led in support of the extradition objections was the conduct of Mr Ponce and other Mexican Government officials, in seeking to intimidate various witnesses who were to be called to give evidence in the extradition proceeding.

283               There was evidence before the magistrate that Mr Ponce had sought to intimidate both Mr Pasini and Mrs Pasini while they were in Spain, and in France. There was also evidence from Mr Cabal that Mr Ponce had behaved in an entirely inappropriate manner when he arranged for Mr Cabal to be brought illegally to a meeting with Mexican police at Luna Park in Melbourne on the day of his arrest. Mr Cabal said that Mr Ponce had offered him inducements in return for his agreement to surrender voluntarily rather than to contest extradition proceedings.

284               It was said that Mr Ponce had also endeavoured, unsuccessfully, to intimidate Mr Juan Rivero in Mexico City. Mr Rivero was a lawyer who was to be called as a witness on behalf of the appellants. It was further said that other Mexican Government officials, including the Mexican Ambassador to Australia, had succeeded in intimidating Dr Oscar Fappiano, an expert on Mexican affairs resident in Argentina, by approaching Argentine officials to frighten him off.

285               The appellants complained to the magistrate about interference by Mr Ponce and the other Mexican Government officials with their proposed witnesses. The magistrate who heard this evidence concluded that Mr Ponce’s behaviour showed him to be “a standover man” who displayed no regard whatever for due process. In relation to Dr Fappiano, counsel for the first respondent told the magistrate that all that had occurred was that a request had been made for inquiries to be conducted into his qualifications. Counsel expressly disavowed any attempt on the part of their client to dissuade him from giving evidence.

286               It was submitted on behalf of the appellants that French J erred in failing to address the incident involving Dr Fappiano in his reasons for judgment. It was said that he would have been an important witness since he was a member of the Inter-American Commission on Human Rights, and was one of the authors of a report on Mexico contained in the country information.

287               We do not accept the submission that the actions of Mr Ponce (and other Mexican Government officials) meant that there were substantial grounds for believing that one or other of the extradition objections relied on had been made out. His Honour was entitled to accord this evidence comparatively little weight in the overall context of that issue. It may be that these actions, which were said to have been carried out on behalf of the requesting State, are of some relevance to the exercise by the Attorney-General of the discretion to order surrender under s 22 of the Act. They do not of themselves make good the contention that the charges were laid for political reasons. Nor do they give rise to substantial grounds for believing that the appellants will not, by reason of their political opinions, receive a fair trial if surrendered.

evidence relied upon by the First Respondent to rebut the extradition objection under s 7(C) of the act

288               It was submitted on behalf of the first respondent that not only was there very little evidence to suggest that Mr Cabal or Mr Pasini would be prejudiced at their trial, or that they would be detained or restricted in their personal liberty “by reason of their political opinions”, but there was a substantial body of evidence to suggest that neither of these consequences would eventuate.

289               The following matters were said to support that conclusion:

·                     the fact that Mr Cabal’s “co-accused” had successfully accessed the Mexican judicial system and sought and obtained an Amparo stay and other interlocutory relief;

·                     the fact that after his arrest in November 1998, Mr Cabal had commenced his own Amparo proceedings in Mexico. On 30 June 1999 a federal judge had determined that the charges which were the subject of warrant 3 in the second Cabal request had been filed outside the limitation period;

·                     the fact that no evidence had been led to suggest that any of the other former supporters of Mr Colosio who had been charged with offences had not received a fair trial; and

·                     the fact that Mr Cabal would have available to him in Mexico a series of entrenched rights, including the right to a fair hearing, the right to be represented by a lawyer, the right to be given notice of the evidence against him, and the right to call evidence in his own defence.

290               These were all matters which his Honour was entitled to take into account when determining whether the extradition objection under s 7(c) of the Act had been made out. To the extent that he had regard to them, no appealable error is disclosed.

The notice of motion

291               The last matter to be dealt with in relation to the extradition objections arises out of a notice of motion filed before French J on 10 August 2000. After the close of submissions, but before his Honour delivered judgment in this matter, it came to the attention of Mr Cabal’s lawyers in Mexico that the prosecuting authorities were investigating their client in relation to banking offences which had not yet been the subject of any charges. It emerged that the person given the task of investigating these additional allegations had recommended to his superior that the Mexican equivalent of a nolle prosequi should be filed in relation to these offences.

292               It emerged further that the specific basis upon which that advice was given was that Mr Cabal was not, at the time of the alleged offences, a member of the High Committee of Credit of Banco Union. It was considered that the position which he occupied within the Bank did not give him the power, authority or responsibility to determine which borrowers should be approved, or the way in which loans should be applied, and that the banking offences could not therefore be proved. It appears that this view prevailed, and on 17 December 1999 it was determined that no additional charges should be laid.

293               It was submitted on behalf of the appellants that one of the central allegations made against Mr Cabal in the arrest warrants concerning the banking offences was that he was, at all relevant times, a member of the High Committee of Credit, a matter which was essential to his guilt of these offences. The relevant provisions of the banking law which created these offences required that they be committed by an empleado or functionario of the Bank. It was Mr Cabal’s alleged membership of the High Committee of Credit which was said to satisfy that requirement.

294               The allegation that Mr Cabal was a member of that committee was said to have been controverted by the abandonment in Mexico of the further charges. It was submitted that the timing of the filing of the formal decision to abandon those charges (the day after the magistrate had ruled that the appellants were eligible for surrender) bore a particularly sinister connotation.

295               It was submitted on behalf of the Appellants that French J should have permitted this evidence to be received and that he should have found that the first respondent had relied throughout upon factual allegations which were not merely false, but known by it to be false. It was further submitted that had the fact that the application for extradition was supported by material which was known to be incorrect emerged during the proceeding before the magistrate, an application would have been made to exclude all of the statements of conduct, tendered pursuant to s 19(3)(c) of the Act, on that basis. Had those statements of conduct been excluded, Mr Cabal and Mr Pasini would not have been eligible for surrender, at least in relation to the banking offences.

296               The first respondent objected to any evidence concerning the abandonment of the additional banking chargesbeing led before French J. It was submitted that to allow that evidence to be led would contravene s 19(5) of the Act.

297               His Honour accepted that submission and said:

“[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.”

298               It was also submitted on behalf of the first respondent that s 21(6)(d) of the Act prevented French J from having regard to this evidence because it was not part of the material that was “before the magistrate”.

299               It was submitted on behalf of the appellants that s 19(5) of the Act did not operate to prevent evidence of this type from being led. That section merely prevented evidence from being adduced to contradict an allegation that a person whose extradition was sought had engaged in conduct constituting the extradition offence. It did not prevent evidence from being adduced which demonstrated that the person did not have the legal status required to commit that offence. Nor did it operate to prevent evidence from being led as to fraud on the part of the requesting State.

300               It was also submitted on behalf of the appellants that although s 21(6)(d) of the Act provides that the Court to which an application for review is made shall have regard only to the material that was “before the magistrate”, that section did not prevent the Court from having regard to material which demonstrated that the requesting State was perpetrating a fraud or an abuse of process.

301               In our view French J correctly declined to receive the evidence concerning the abandonment of the further banking charges. Both the operation of s 19(5) and of s 21(6)(d) of the Act prevented his Honour from doing so.

302               There appears to be some doubt as to whether the Court may intervene in the extradition process in circumstances where it can be demonstrated that there has been an abuse of process, or that the Commonwealth Director of Public Prosecutions (who has the carriage of extradition proceedings in this country) has acted fraudulently or in bad faith. There are some cases which suggest that the Court may stay such proceedings. They include Bou-Simon v Attorney-General (Cth) (2000) 96 FCR 325; R v Horseferry Road Magistrates’ Court; Ex parte Bennett [1994] 1 AC 42; and R v Martin [1998] AC 917. However, in Bou-Simon the facts differed significantly from the present case. The application was brought pursuant to s 39B of the Judiciary Act and concerned an attempt to extradite the appellant from France rather than, as in the present case, an attempt to extradite a person from Australia.

303               In Papazoglou v Republic of the Philippines (supra) a Full Court held that neither the magistrate, nor the Court on review, had power under the provisions of the Act to stay an extradition proceeding as a consequence of an abuse of process. Papazoglouwas followed by Burchett J in Dutton v Republic of South Africa (1999) 84 FCR 291 at 303, by Katz J in Bennett v Government of United Kingdom [2000] FCA 916 at pars 107-108 and by another Full Court in Federal Republic of Germany v Parker (supra) at 339-341. These cases seem to us to present a significant obstacle to the appellants’ case in this regard, suggesting as they do that the matters raised in the notice of motion cannot be considered on review.

304               We doubt that s 39B of the Judiciary Act can properly be invoked in order to bring about indirectly a result which, by reason of the line of authority set out above, cannot be achieved under the provisions of the Act. That is so notwithstanding the fact that judicial review under s 39B, unlike judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) is not expressly excluded by the Act – see Wiest (supra) at 483, 488-491 and 505. Certainly Papazoglousuggests that s 39B cannot be invoked as a basis for staying extradition proceedings as an abuse of process – see the discussion in Papazoglouat 139 of the powers of this Court, in its original jurisdiction, to terminate proceedings under s 19 of the Act on the ground that they constitute an abuse of process.

305               If it should ultimately prove to be the case that the Mexican Government has deliberately failed to disclose material to the magistrate which ought to have been disclosed, and thereby misled both the magistrate and the learned primary judge on review, that would be a most serious matter. It would, however, be a matter which, under s 22 of the Act, may be taken into account by the Attorney-General in deciding whether to exercise his discretion to permit Mr Cabal and Mr Pasini to be surrendered. Reserving this matter to the Attorney-General (whose decision may itself be subject to judicial review under s 39B) is a course which accords with the reasoning of the Full Court in Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 412-413.

conclusion

306               It follows from the reasons set out above that the appeal must be dismissed. The appellants must pay the first respondent’s cost of and incidental to the appeal.

Associate:

Dated: 18 April 2001