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High Court of Australia Transcripts |
Melbourne No M39 of 2001
B e t w e e n -
CARLOS CABAL (PENICHE)
First Applicant
MARCO PASINI (BERTRAN)
Second Applicant
and
UNITED MEXICAN STATES
First Respondent
LISA HANNAN M
Second Respondent
ATTORNEY-GENERAL (COMMONWEALTH)
Third Respondent
Application for bail
GAUDRON J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
FROM MELBOURNE BY VIDEO LINK TO CANBERRA
ON THURSDAY, 31 MAY 2001, AT 8.58 AM
Copyright in the High Court of Australia
MS M.M. GORDON: If your Honour pleases, I appear on behalf of the first respondent, United Mexican States, on instructions for the Attorney-General for the Commonwealth. (instructed by the Director of Public Prosecutions (Commonwealth))
MR. B.E. WALTERS: If your Honour pleases, I appear for the third respondent, the Attorney-General for the Commonwealth. (instructed by the Australian Government Solicitor).
HER HONOUR: I have a certificate from the Deputy Registrar that she has been informed by the Deputy Chief Magistrate on behalf of Lisa Hannan, Magistrate, the second respondent, that she will abide by the order of the Court. Yes, Mr Grace.
HER HONOUR: Yes, thank you.
MR GRACE: But I do desire to proceed today with the application by the second applicant, Marco Pasini Bertran?
HER HONOUR: Yes, thank you, Mr Grace. Is that application opposed, Ms Gordon?
MS GORDON: It is, your Honour. The position of the first respondent is that the application in respect of Mr Cabal should either be proceeded with or withdrawn. If the application is not to proceed today because it is deficient, then it should be withdrawn, in our submission.
HER HONOUR: Yes. What about the third respondent, Mr Walters?
MR WALTERS: If your Honour pleases, the Attorney-General has nothing to say in relation to the application.
HER HONOUR: Yes. There is no prejudice, Ms Gordon, is there, if the matter is stood over to be - - -
MS GORDON: There is no prejudice, your Honour, except for this: as your Honour is aware, the application for special leave is to be heard and determined on 22 June - - -
HER HONOUR: I propose that it would be stood over not to be listed before the outcome of the special leave application.
MS GORDON: If your Honour pleases.
MR GRACE: Yes, thank you, your Honour.
HER HONOUR: You cannot object to that, can you, Mr Grace?
MR GRACE: No, I do not object to that.
HER HONOUR: Yes. The application of Marco Cabal Peniche will be stood over to be relisted on 48 hours notice, no relisting to occur prior to the determination of the special leave application to be heard on 22 June, 2001. Yes, thank you.
MR GRACE: If your Honour please. Your Honour, if I could first deal with the issue of the jurisdiction to grant bail in respect of the matter of Pasini? This application is not made pursuant to the Extradition Act 1903 , as there would appear to be no jurisdiction to do so. The application is made pursuant to the inherent jurisdiction of the High Court to grant bail, pending an application for special leave to appeal.
HER HONOUR: Why would there be any inherent jurisdiction when there is statutory provision - when there is specific statutory provision?
MR GRACE: The statutory provision only comes into play, so to speak, after an application for special leave has been granted. And, if I could take your Honour to the - - -
HER HONOUR: Yes, I realise that, but why would there be any inherent jurisdiction in the Court, in the face of that statutory provision?
MR GRACE: Could I take your Honour to the decision of his Honour the Chief Justice Sir Anthony Mason in the matter of Zoeller v Federal Republic of Germany [1989] HCA 67; (1989) 64 ALJR 137. I do not know if your Honour has that report - - -
HER HONOUR: No. You did not give us a list of authorities, did you?
MR GRACE: No. As I understand it, the first respondent gave you the Australian Law Reports version of that report.
GAUDRON J: Very well.
MR GRACE: But if I could take your Honour to the comments by Chief Justice Mason at page 138, the second column, paragraph E where his Honour said this:
It may be objected that this interpretation of s 21(6) -
referring to the Extradition Act -
leaves a jurisdictional gap in the case where it is obvious that special leave will be granted. The existence of the Court's inherent jurisdiction is an answer, if one be needed, to this objection. Accordingly, I turn to consider the application in the light of the inherent jurisdiction.
His Honour then went on to consider the application in that respect. Now, we rely upon that statement of authority as founding the jurisdiction in your Honour to grant bail.
HER HONOUR: Yes, and that is to be exercised in accordance with the ordinary principles with respect to inherent jurisdiction for bail, that is to say, where bail is necessary to preserve the subject matter of the litigation.
MR GRACE: We would prefer to express it in the way of the onus being on the applicant to establish special or exceptional circumstances. If I could come to the issue of the preservation of the litigation, in the normal course of events an application for bail, pending special leave, is made by a convicted prisoner who has been subject to an order committing him or her to gaol for the service of a sentence. That is to be contrasted with this situation, where we are not seeking, in effect, to arrest judgment or sentence because the order for extradition remains, regardless of what your Honour does today in respect of this application. So that there is no interference with the due process of the law in respect of the order of extradition taking its normal course. So, this case is to be contrasted with the normal type of criminal case which is the subject of this sort of application.
So with that qualification it is submitted that what your Honour ought to focus upon in this case is whether or not the applicant has satisfied the stringent onus upon him of satisfying your Honour that special or exceptional circumstances exist.
Now, in the submissions of the first respondent, there is reference to a suggested burden that the applicant has to satisfy in that the application for special leave has to exhibit either an irresistible attraction to a grant of special leave or it is almost certain, in effect, that special leave will be granted. In my submission, the test is not as high as that and, in fact, has not been interpreted as being as high as that, and to give your Honour an example of that, if I could take you to the decision of Justice Dawson, very briefly, in the matter of Peters v The Queen (1997) 71 ALJR 309. At page 310 his Honour says this, at the bottom of the first column:
The more difficult question is whether the application for special leave enjoys any reasonable prospect of success. According to the draft notice of appeal the applicant seeks to have this Court hold that the test for dishonesty on a charge of conspiracy is a purely subjective one.
And then his Honour goes on to discuss the issues at large. And then at paragraph D in the second column on page 310 says this:
In my view the point which the applicant wishes to raise is of the kind which may attract the grant of special leave. On the material before me I certainly do not think that the applicant's case is unarguable.
So, we would submit, that on the material that is before your Honour, namely the application for special leave to appeal, which sets out the grounds of appeal in draft form and the summary of argument that has been filed in support of that application, exhibit grounds of appeal and arguments in support thereof, which are plainly arguable and certainly could not be said to be not arguable or unarguable.
Now, if I could turn, your Honour, to the material upon which we rely specifically, and I take it that your Honour has read the affidavit material that has been filed on behalf of the applicant.
HER HONOUR: Yes.
MR GRACE: If I could just formally read them to the Court.
HER HONOUR: Well, is there any objection? Some of the material seemed to me to be less than clearly admissible.
MR GRACE: I understand that there is substantial objections to slabs of the affidavit of the applicant and I am prepared to proceed with this application without relying upon those paragraphs that are the subject of objection, at least primarily so, and if I stray into objectionable material then perhaps we could deal with that issue at that time. There was a blanket objection to the affidavit of Mr Zinser Cieslik on the basis that it had not been sworn - that was my understanding of the objection. I understand that is not the basis. Simply, if I could record that we submit that paragraphs 1 to 7 inclusive, 9, 19 - - -
HER HONOUR: Yes, 1 to 7 inclusive.
MR GRACE: Yes, 9, 19 and 20 and 27 to 31 inclusive are relevant and admissible on this application in respect of the second applicant.
HER HONOUR: We will see if - is that agreed?
MS GORDON: No, it is not, your Honour. The first respondent objects to those paragraphs.
HER HONOUR: On what basis?
MS GORDON: On the grounds of relevance, your Honour. As your Honour is aware, there are two issues today, that is, whether or not Mr Pasini is able to satisfy your Honour that there are special circumstances and, even if he can satisfy your Honour that there are special circumstances, whether or not your Honour should, in any event, exercise your Honour's discretion and grant him bail. It is the submission of the first respondent that none of those matters referred to there are relevant to either of those two issues.
HER HONOUR: Yes, thank you.
MR GRACE: If I could just reply to that briefly, your Honour. It is submitted that those paragraphs are relevant because they deal in part with the gravity or otherwise of the allegations in respect of criminal offences that have been made against the applicant in Mexico and in so far as they refer to those matters, they are relevant to the issue of motive for flight, which is one of the matters that your Honour has to take into the wash, so to speak, in assessing whether special circumstances exist.
HER HONOUR: Yes, very well, I will admit those paragraphs - I will admit them, but I am not totally familiar with what is in them at this stage, so subject to that, it may be necessary to revisit that. What in particular do you rely on?
MR GRACE: In particular, paragraph 9, which refers to the fact that:
There are two warrants for the arrest of Mr Pasini.
Now, none of this is controversial. Paragraph 19, the fact that there have been Amparo orders made in Mexico quashing the warrants.
HER HONOUR: They are the warrants referred to in paragraph 9?
MR GRACE: Yes.
HER HONOUR: Yes.
MR GRACE: In paragraphs 27 to 31, the fact that these offences are non-serious offences, therefore, Mr Pasini could not be arrested upon entry into Mexico on any of the matters that are the subject matter of the extradition request by Mexico.
HER HONOUR: Yes.
MR GRACE: The applicant also relies upon the affidavit of Mr Jeffrey Elwood Cummins, clinical and forensic psychologist, sworn on 25 May 2001, and exhibit 3 to that affidavit, which exhibits a number of reports prepared at various times by Mr Cummins, the last such report being a few weeks ago.
HER HONOUR: Well, is that objected to?
MR GRACE: I understand not, your Honour.
HER HONOUR: Yes, thank you.
MR GRACE: Also the exhibits to the applicant's affidavit which are numbered 1, 2, 4 and 5.
HER HONOUR: 1, 2, 4 and 5?
MR GRACE: Yes.
HER HONOUR: Well, now, what, in particular, do you rely on there?
MR GRACE: Exhibit 1 is a replica of exhibit 3 of Mr Cummin's affidavit. I understand that would not be controversial. The same with exhibit 2.
HER HONOUR: Well, exhibit 1 to the affidavit of Carlos Cabal Peniche?
MR GRACE: No, exhibit 1 to the affidavit of Marco Pasini Bertran.
HER HONOUR: You will have to bear with me for the moment. I do not have that affidavit nor do I seem to have the affidavit of Cummins. We do not seem to have that affidavit. When was it filed?
MR GRACE: On 28 May 2001. That is Monday of this week. Your Honour, it might save time if I just read to you the paragraphs that I rely upon in respect of Mr Pasini's affidavit.
HER HONOUR: Very well.
MR GRACE: If I could just briefly, before I do that, just indicate that exhibits 1, 2 and 5 to that affidavit are merely replicas of the contents in total of exhibit 3 of Mr Cummins' affidavit, that is, exhibits the psychological reports that Mr Cummins attaches to his affidavit. Exhibit 3 to Mr Pasini's affidavit is not relied upon. Exhibit 4 is relied upon, and exhibit 4 is the notice of undertaking of bail and the recognisance entered into in respect of the grant of bail by his Honour Justice Gray of the Federal Court on 20 December 2000. That particular notice of undertaking of bail sets out the stringent conditions that were imposed by his Honour that Mr Pasini Bertran agreed to, to enable his release on 22 December 2000. Now, the paragraphs that I seek to read are as follows. Paragraph 57:
I have been imprisoned at Port Phillip Prison for more than 2 years. . . .When I was initially arrested on 11 November 1998, I was held at the Immigration Detention Centre in Maribyrnong. During the time I was at Maribyrnong I made no attempts to escape, I was not disciplined at all for my behaviour and I had no problems with the staff or with other prisoners. My record of detention at Maribyrnong was clear of incidents. After being held for approximately 2 weeks in immigration detention, the warrants for my arrest in respect of the alleged extraditable offences were issued. I was then transferred to the prison system. Whilst the conditions in immigration detention were far from good, they were more bearable than the conditions at Port Phillip.
58. The prison authorities have told me that I am the Sirius East block at Port Phillip Prison for my own protection. I did not experience any trouble with any prisoners before being moved to Sirius East and I did not feel in any danger in the mainstream prison. I find the conditions in which I am imprisoned in Sirius East hard to bear.
59. I am depressed and I feel my physical well-being has suffered. I find it hard not to be bitter and angry about the conditions of my imprisonment and the shackling, because I still cannot understand why I am treated like the worst kind of convicted criminal. I have no prior convictions at all, no history of violence or absconding from detention or custody and no history of mental illness or instability. Since I have been in Port Phillip Prison I have lost weight. Upon my release on bail, I showed that I had no intention of escaping, which therefore proves that the shackling was unnecessary as I never intended to escape.
. . .
62. I am constantly anxious and I have extreme difficulty sleeping. There is an extreme sense of isolation here and a constant threat of violence.
Body Searches
63. I find the requirement to have continual body and cavity searches to be degrading, humiliating and unnecessary.
64. After each visit (whether social or professional) I am strip searched and undergo a cavity search. The extent and comprehensiveness of the search depends on the officer conducting it -
Paragraph 68:
When I was in the mainstream I had a job in the prison library, which helped to take my mind off the difficulties of my situation. I also worked in the textile industry. When I was moved to Sirius East I was told by Shane Kelly, the Head of Operations of Port Phillip Prison that I would be provided with a similar position to that which I held prior to my transfer. To date no position has been offered to me. The only jobs available involves screwing nuts onto bolts. In addition, I do not wish to take work at the moment since I am occupied with my court matters and I expect this to continue for some time.
69. Prisoners can only undertake University studies if we pay the fees. The TAFE courses on offer are very elementary courses. The most advanced is a small business course. For me there is no sense to study that course because it is easier than what I have already studied both here and in Mexico. The English and mathematics courses are at elementary levels. These are the only things taught in the Unit. The only other course is about building (eg. House building) but it is very basic. I studied engineering at University in Mexico and it is very elementary for me . . .
Religion
70. In Sirius East we have the Anglican Minister who comes once a week. He gives a service. I am not Anglican. I am Roman Catholic, but that is the only service offered. Religion is very important to me. It used to Father Muller but now there is a new priest. The Catholic Father comes each Sunday to give communion to me. That takes no more than 5 minutes.
Montserrat Pasini
71. The most important moment in the day is my wife, Montserrat's visit. She is only allowed to visit me 3 times each week, because I have a `base' contract since they imprisoned me again. Each visit is limited to 60 minutes. A friend of us lent us a little car in order that she may visit me without using public transport as she did for eight months (spending six hours a day in order to visit me). Before my release on bail I was on the highest contract which allowed five visits per week with a duration of 90 minutes each. However, now I am on the base contract in which I can only have 3 visits per week with a duration of 60 minutes each. There is a waiting period of 15 weeks before my visiting status can be altered. This aggravates the pressure for both Monsterrat and myself, making more difficult the situation.
72. There is no privacy in the visitors area and interaction is limited.
. . . .
74. I cannot express how much I miss Montserrat. She and I are very close. Before I was arrested in 1998, we were planning to start a family.
75. I am worried about how Montserrat is coping without me. She is sad and depressed.
Release
76. I primarily want to be released so that I can be with my wife and again have the friendship and support of the Davies family and other friends who have become my extended family. I can be freed from the day to day difficulties and stresses of life in Sirius East. I would prefer my wife to be at all conferences with my legal advisers, but this is currently not possible as she is only on the social visitors' list at the prison. My release would also enable me to work personally on my legal proceedings and to become a member of the community again.
77. I will not abscond in order to avoid extradition to Mexico. I have no interest in escaping as this would mean leaving behind my wife. If I were to be released, my wife and I would prefer to remain in Australia and continue our life here rather than risk an uncertain future in Mexico or elsewhere. As I stated above, my wife and I were planning to start a family in Australia. If to do this means that I must continue to fight the extradition proceedings brought against me here in Australia, then I will continue to fight. As demonstrated whilst I was on bail, I did not intend to escape or flee whatsoever.
. . . .
80. After a number of failed bail applications I was granted bail on 20 December 2000 by order of Justice Gray and subsequently released from prison on 22 December 2000.
Special circumstances: Psychological Conditions
81. I understand that one of the main reasons I was granted bail in December 2000 was because of my deteriorating psychological condition. My condition was the subject of a "Follow-up Psychological Report" prepared by my treating psychologist Jeffrey Cummins MAPsS dated 7 December 2000. This report was received into evidence at my December 2000 bail application before Justice Gray.
Paragraph 82 - Does your Honour now have the affidavit?
HER HONOUR: Yes, thank you.
MR GRACE: I am up to page 30, your Honour.
HER HONOUR: Yes I have it now, thank you.
HER HONOUR: Yes, thank you.
MR GRACE: I am up to page 30, your Honour.
HER HONOUR: Yes, I have it now.
MR GRACE: Paragraph 82:
Since my release on bail I have continued treatment with Mr Cummins. This has involved 4 consultations of approximately 60 to 90 minutes in duration. I believe that since my release my condition has improved dramatically. Mr Cummins himself has informed me of his view on this point by a letter dated 17 April 2001.
That is exhibited.
Conditions in custody
83. The conditions in which unconvicted prisoners/detainees are kept in custody -
I am sorry, your Honour, I do not seek to read that paragraph or the next.
Compliance with Bail Conditions
85. My bail conditions were very strict. Whilst on bail I did not breach any of these conditions which included reporting to the South Melbourne Police Station twice a day between certain hours. My wife accompanied me when I reported. I was not late to report once. Nor did I travel outside the terms of the orders.
86. Also in accordance with my bail conditions I did not have any contact with Carlos Cabal my sister Teresa or any of their children. The closest I have been to my sister whilst on bail was seeing her from a distance at the HREOC hearing regarding my detention on 23 March 2001 at the Melbourne University campus.
Surety
87. I believe another main reason why I was granted bail was because, my friend, Mrs Davies, stood as a surety for me.
Could I indicate, your Honour, that Mrs Davies is present in Court this morning.
Mrs Davies undertook to pay the Commonwealth of Australia $500,000 in the event that I failed to observe a condition of my bail.
He exhibits the notice of undertaking which I will now turn to if I may, which is exhibit 4. These were the conditions imposed by his Honour Justice Gray which are set out at paragraphs (a) to (j) of that document. Paragraph (b) is a standard form to surrender all passports; (c) "That he not carry" any such document; (d) "That he not apply for" such document; (e) "That he reside with his spouse" at a specified address:
(f) That he not travel outside a radius of fifty kilometres from the Commonwealth Law Courts Building at 305 William Street, Melbourne, Victoria.
(g) That he not attend within one kilometre of the Melbourne Airport at Tullamarine, Victoria, or any other . . . port of international departure.
(h) That he refrain from communication, direct or indirect, with Carlos Cabal Peniche, his spouse, Teresa Pasini Cabal, and their children.
(i) That he refrain from receiving from Carlos Cabal Peniche, or from Teresa Pasini Cabal, directly or indirectly, any money, property or other benefit, other than a weekly living allowance not exceeding $750.00.
(j) That he report twice daily, once between the hours of 6.00 am and 8.00 am, and once between 6.00 pm and 8.00 pm, to -
police; and:
(k) That he attend at the Federal Court of Australia on the occasion of the delivery of judgment by the Full Court of the Federal Court -
in respect of his appeal, which is the subject of the special leave application:
and surrender himself into the custody of the Court.
He abided for a period of four days less than four months with those conditions. The decision of the Full Federal Court was delivered on 18 April 2001 and during that period of time those stringent conditions were the subject of strict observance by him without any occasion upon which his observance was questioned.
If I could turn to paragraph 88:
I have been informed by Mrs Davies that she would continue to stand as surety for as long as necessary in the event this court grants me bail.
89. My relationship with Mrs Davies and her family remains strong. My wife and I visit her home 4 to 5 times a week, usually for dinner. It is this home that Mrs Davies has provided as security for the amount of the surety. Montserrat and I attended church with Mrs Davies and her son every Sunday.
Paragraph 90: it deposes to a relationship with Mrs Davies' brother, John Jordan. I will not read that.
91. On 18 April 2001 the Full Court of the Federal Court of Australia dismissed my appeal against the orders made by French J confirming the extradition order made by the Second Respondent. As a consequence I was returned to prison.
92. Mr Cummins' has consulted with me in order to prepare an up to date report on my psychological condition.
In paragraph 93, he refers to Mr Zinser's affidavit. So those are the paragraphs in Mr Pasini's affidavit that are relied upon. It may be useful at this stage, your Honour, if I could highlight what we say are the special circumstances that attach to Mr Pasini's position, which would enliven the jurisdiction to grant bail, and we say, notwithstanding the fact that his Honour Justice Gray found as a fact that the psychological state of the applicant was poor, at the time of the initial grant of bail on 20 December, 2000, and that that by itself was sufficient to establish special circumstances.
We say that his psychological state as it presently stands is no better, and possibly worse, than it was at the time Justice Gray granted bail in December, but we say that not only that but in combination with the following factors, special circumstances are established. The following factors are these. His involvement in the alleged criminal activity - and I will come to findings by Justice Gray shortly. The next matter is the lapse of time that he has been in custody: he has been in custody for a total period of 26 months since November 1998, when he was first arrested. The next matter is his continual detention in the Sirius East unit at Port Phillip Prison, and the deprivations that occur as a result of that particular detention and location of detention.
The next matter concerns what we submit to be the negligible risk of flight. The next matter is the preparedness to comply with stringent bail conditions, and the fact of performance, that is, his observance of such conditions for a lengthy period of time. And, finally, the arguability of the special leave grounds.
As to the first matter, the psychological state, I have in Court Mr Jeffrey Cummins, the psychologist who is the author of the reports which are the subject of his affidavit and also, as I have indicated, exhibited to the applicant's affidavit. With your Honour's leave, I desire to call Mr Cummins to give short evidence about the current state of Mr Pasini and a comparison of that state between now and what it was prior to 20 December 2000 when Justice Gray granted bail.
HER HONOUR: Is that course opposed?
MS GORDON: It is, your Honour. This is the first notice we have had of this application. It is not appropriate. Papers were filed on Monday. They have had their opportunity to put before your Honour the material upon which they rely and for those reasons, we submit it should be refused.
HER HONOUR: Yes, thank you.
MR GRACE: Your Honour, could I indicate that there is absolutely no prejudice to this evidence being called. It is merely an adumbration of what is contained in the reports and to highlight the fact that his present condition is as bad, if not worse than, it was at the time of the initial bail application before Justice Gray. It is very short evidence.
HER HONOUR: Yes, is there someone there to swear Dr Cummins?
MR GRACE: Yes, there is, your Honour.
HER HONOUR: Yes, very well, would you call him to the witness box, but I will have to adjourn at the conclusion of his evidence, so you had better come to some arrangement as to when this matter can resume.
JEFFREY ELWOOD CUMMINS, sworn:
MR GRACE: Could you tell her Honour your full name, address and occupation?---Jeffrey Elwood Cummins; my rooms are at 49 Erin Street, Richmond in Melbourne and my occupation is consultant, clinical and forensic psychologist.
HER HONOUR: Yes, thank you.
MR GRACE: Mr Cummins, do you know the applicant, Marco Pasini Bertran?---Yes, I do.
In what capacity do you know him?---I have been assessing and treating him on an ongoing basis since late 1999.
Mr Cummins, in fact, you have prepared a number of reports in respect of your treatment and diagnosis of Mr Pasini?---Yes, I have.
Are those reports exhibited to your affidavit sworn on 25 May 2001 and filed in these proceedings?---Yes, they are.
You gave evidence, did you not, before Justice Gray in the Federal Court - - -Yes, I did.
- - - on the bail application?---Yes.
I take it, your Honour, there is no objection to the qualifications or expertise of this witness. I understand there is not, your Honour.
HER HONOUR: Very well.
MR GRACE: Mr Cummins, you diagnosed Mr Pasini prior to the bail application before Justice Gray in December 2000, is that correct?---Yes, I did.
Could you indicate what your diagnosis of Mr Pasini was on that occasion?---I diagnosed him, your Honour, as suffering from a reactive agitated depressive disorder, which was severe in type.
After his release on bail, did you continue to treat Mr Pasini?---Yes, I did.
And you have indicated in your report, dated 17 April 2001, the occasions upon which you treated him prior to the Full Federal Court appeal decision?---Yes. In particular he attended my rooms in the company of his wife on four occasions: 7 and 15 February and 7 and 29 March.
And, as a result of those visits, did you diagnose him at that time?---Yes, I did.
And what was your diagnosis?---In my opinion he was still suffering from a reactive agitated depressive disorder, although by the second consultation there was evidence of some level of remission in terms of his symptomatology and certainly in the two subsequent consultations there was further evidence of that.
If you could just refer please to your report dated 17 April 2001?---Yes.
In the second-last paragraph on page 1 you refer to a diagnosis; could you expand on that please?---On the diagnosis of post-traumatic stress disorder?
Yes?---Yes, well, having seen him in custody, I did not specifically make that diagnosis, but then once he was attending my rooms for treatment whilst on bail, it became more apparent the extent to which he had been quite specifically traumatised by numerous aspects of his incarceration. I have recently had the opportunity to visit Sirius East Unit, which, your Honour, is the most maximum security unit within a maximum security prison, and the conditions there are certainly extreme.
Yes. Now, could you refer again to your report dated 17 April 2001?---Yes.
In the last paragraph of that report you refer to a concern that his psychological mental state would be likely to deteriorate even further if he were now reincarcerated?---Yes, that is the bottom paragraph on page 1.
Over the page on page 2 of that report you give the opinion that Mr Pasini remains a significantly psychological traumatised person?---Yes.
Now, 17 April 2001 was one day prior to the day upon which he was reincarcerated. Have you had occasion to visit him at prison subsequent to his reincarceration?---Yes, I have. I attended upon him on 6 May.
What was your diagnosis of him on 6 May?---Well, again, he presented as having symptoms indicative of a very severe reactive agitated depressive disorder. He was most preoccupied with the fact that he had been not just returned to the prison environment but, more particularly, returned to Sirius East.
Have you referred to what he reported to you in your report dated 8 May 2001?---The report is dated 14 May 2001.
Yes. I just want you to have a look at this document if you could, which is exhibit 3 to your affidavit, Mr Cummins. Do you recognise that document?---Yes, I do and I apologise about that. 8 May is the correct date. This report, which is marked "My file copy", has clearly been printed out from the computer at a subsequent date. I do apologise about that, your Honour.
Well, that report, which is exhibit 3 dated 8 May, is that the report that you compiled as a result of your visit upon Mr Pasini on 7 May?---On 6 May, yes.
Sorry, on 6 May?---Yes, it is.
Now, I want you to give your opinion, Mr Cummins, as to your comparison of Mr Pasini's psychological state on 6 May as compared to his psychological state prior to being released on bail by Justice Gray in December 2000?---Well, your Honour, I have only seen Mr Pasini on the one occasion since bail has been revoked, that being 6 May, and on that occasion, as I said earlier, he was distraught; he was quite obviously very depressed; he was preoccupied with being back in Sirius East. In my opinion, there had been a notable deterioration in his condition from when he was initially released on bail to when I saw him on 6 May. He was also particularly focused on the fact he was returned to a base line level of visits. I must say I have no idea why on earth that happened. It seems to me that was extreme.
Mr Cummins, if you could just confine yourself to your diagnosis of him, please.---Yes.
As compared to his condition as it stood prior to the grant of bail in December 2000, how would you compare his situation psychologically on 6 May 2001?---Well, in my opinion, there had been a further deterioration.
So his condition in May 2001 was worse than the position it had been in in December 2000?---Yes, and I refer to that on the second-last paragraph on page 1 of the report dated 8 May 2001.
Yes, thank you, Mr Cummins. If you could remain there.
HER HONOUR: Yes, Ms Gordon.
MS GORDON: Your Honour, can I just ask some very short questions just to complete that evidence? I will be very short.
HER HONOUR: Yes, thank you.
CROSS-EXAMINED BY MS GORDON:
MS GORDON: Mr Cummins, you would concede and accept, would you not, that a reactive agitated depressive disorder is a sort of condition likely to be suffered by people who are incarcerated?---Yes, that is not uncommonly observed.
Thank you. And especially by people sentenced to imprisonment or remanded in prison who are either charged or convicted of white collar offences?---Yes, I accept that.
And, that as a result of incarceration, people are of course forced, as part of that incarceration, to associate with people who have been convicted of other offences?---Yes.
Can I ask you one other question, please, and that is this: when were you asked to go and see Mr Pasini in order to prepare your report dated 8 May?---I had been indicating I wanted to see him shortly after bail was revoked. I was provided consent to visit him I think about a week before I actually visited him.
And, so it was on your own suggestion, was it, you go and see Mr Pasini? You were not asked to do so by either his lawyers or Mr Pasini himself?---No, I was eventually asked to do so by his lawyers, yes.
And when were you asked to do that, Mr Cummins?---Well, it was approximately a week beforehand.
I see. And did you have discussions with his lawyers before that appointment?---No, other than for them to deal directly with my secretary in terms of saying they wanted me to see him then.
Thank you, Mr Cummins. No further questions, your Honour.
HER HONOUR: Yes. Any questions?
MR GRACE: There is no re-examination.
HER HONOUR: Mr Walters?
MR WALTERS: I have no questions, if your Honour pleases.
HER HONOUR: Yes. Re-examination, Mr Grace?
MR GRACE: No, no re-examination.
HER HONOUR: Now, it is Mr Cummins is it, not Dr Cummins?---Yes, it is Mr Cummins, your Honour.
Yes, thank you.
Now, is there any objection to Mr Cummins being excused?
MS GORDON: No, your Honour.
MR WALTERS: No.
HER HONOUR: Mr Cummins, you may be excused from further attendance, thank you?---Thank you, your Honour.
THE WITNESS WITHDREW
HER HONOUR: I must adjourn, now, because the Full Bench is to sit on another matter. When is it convenient for the parties to resume this hearing? I can tell you your choices are limited, it is between 1 and 2 and after 4.15.
MR GRACE: I would be happy to resume at 1 pm, your Honour.
HER HONOUR: Does that suit the other counsel?
MS GORDON: That is suitable to the first respondent and I also understand to the third respondent.
MR WALTERS: Yes, your Honour.
HER HONOUR: Yes, thank you. I do apologise, but it will be necessary, now, to adjourn until 1 pm.
AT 9.47 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY
UPON RESUMING AT 1.10 PM:
HER HONOUR: Mr Grace, Ms Gordon and Mr Walters, I apologise for the delay, however, my time is now yours. Yes, Mr Grace.
MR GRACE: Thank you, your Honour. Could I refer your Honour now to the decision of Justice Gray in the Federal Court, [2000] FCA 1892. I believe your Honour has been provided with a copy of that.
HER HONOUR: Yes, I have that, thank you.
MR GRACE: I wanted to, in accordance with the matters that I listed as giving rise to, in combination, special circumstances, go to the first matter and cross-reference what I am about to say to certain findings by his Honour Justice Gray. The first matter is the psychological state of the applicant. If I could take your Honour to paragraph 63 in Justice Gray's judgment, which has a subheading, "The psychological state of the applicants", his Honour said this:
Mr Cummins also gave evidence about the psychological state of the applicants. He has interviewed them on a number of occasions whilst they have been in Sirius East. He has diagnosed each of them as suffering from reactive agitated depressive disorder. This condition is distinct from chronic depression or anxiety, which Mr Cummins described as "a major depressive disorder or a major anxiety disorder". The condition suffered by the applicants is a reaction to their incarceration and their general predicament. Both applicants have suffered from it for some time, although, as time passes and they remain in prison it has worsened. In the case of Mr Cabal, Mr Cummins described his condition as "moderately severe". He expressed the view that Mr Pasini is now "severely depressed".
I just stop there to highlight the fact that in the evidence given by Mr Cummins this morning in this Court, he compared the position that Mr Pasini is in now in terms of his psychological state to that as described in paragraph 63 and said in his evidence that his condition now was worse. Paragraph 64:
In cross-examination, Mr Cummins conceded that a reactive agitated depressive disorder is the sort of condition likely to be suffered by people who are incarcerated -
and, your Honour will recall that in cross-examination by my learned friend, Ms Gordon, this morning, that point was highlighted. If I could read further in paragraph 64 to the last sentence in that paragraph:
Of the two applicants, he is the leader.
He is talking about Mr Cabal.
He has taken charge of dealing with the lawyers who represent the applicants in their endeavours to secure their freedom and meet the charges levelled against them in Mexico.
65 Mr Pasini, on the other hand, is a follower. Mr Cummins described him as "absolutely crushed by his current circumstances". Mr Pasini feels that he has been caught up in events beyond his control. He feels left out of the process of instructing lawyers. He resents the fact that he is treated in the same way as Mr Cabal, when Mr Pasini is charged with a smaller number of offences, and his alleged offences are subsidiary to some of those alleged against Mr Cabal. Because of his personality, and because of his lesser role, Mr Pasini is more drastically affected by the condition identified by Mr Cummins. He continues to attend to his own basic needs, so far as prison discipline permits him to do so. He has, however, withdrawn from activity to a considerable degree. He tends to spend much of each day lying on his bed in his cell, even when the cell is open and he is free to move around the common areas and the exercise yard. He has entertained ideas of suicide, although Mr Cummins says he has done so only to a "minimal" extent.
66 In my view, the psychological condition of Mr Cabal does not constitute "special circumstances". I am persuaded, however, that the more severe condition of Mr Pasini does amount to "special circumstances", for the purposes of s 21(6)(f)(iv) of the Extradition Act.
The totality of the circumstances
67 So far, I have considered each of the matters raised by the applicants as "special circumstances" separately. With the exception of the psychological condition of Mr Pasini, I have found that each of the matters raised does not by itself constitute "special circumstances".
Then his Honour goes on to discuss the cumulative effect and at paragraph 68 says this:
In the present, I am satisfied that, even if all of the matters raised by the applicants are viewed cumulatively, with the exception of the psychological condition of Mr Pasini, they do not amount to "special circumstances". Mr Pasini's condition satisfies the test of "special circumstances" when viewed by itself, so does not need to be viewed in conjunction with other matters.
69 In reaching my conclusion about whether the condition of Mr Pasini amounts to "special circumstances," I am fortified by the judgment of Justice Cooper in Holt v Hogan (No 1) [1993] FCA 463; (1993) 44 FCR 572, in which his Honour released on bail a person whose extradition had been sought, largely because of her mental condition.
To add to that decision of Justice Cooper, could I refer your Honour very briefly to the decision of Justice Spender in the Federal Court in the matter of Kainhoffer v DPP [1993] FCA 655; (1993) 120 ALR 98, where his Honour at page 103 at line 8 said, when talking about the Extradition Act:
It is important to have regard to the principal object of the Act and the clear concern of the legislature that experience has shown that there is a very high risk of persons sought for extraditable offences absconding and, as Justice Foster said in Schoenmakers (No 2), those circumstances dictate that the court approach the matter of bail with an attitude of circumspection. Justice Cooper said in Holt v Hogan at 385:
"Against these matters one then identifies and weights the particular circumstances of the applicant for bail keeping in mind broad community standards including a predisposition against unnecessary or arbitrary detention in custody. In considering the circumstances of a particular application for bail, one does not exclude those circumstances which ordinarily would fall for consideration on an application for bail where a person is charged domestically for the commission of a crime in this country. All personal circumstances are taken into consideration, notwithstanding that some or all of them will again fall for consideration if special circumstances are established as a condition precedent to the exercise of a jurisdiction to grant bail."
Matters such as the time already spent in custody and the time the applicant faces in custody until the court can determine the matter are matters to which weight must be given, although in themselves they may not be decisive of the outcome. So also may be the circumstances of the incarceration. There may be a significant difference between detention in a remand centre and the detention which the appellant presently suffers, namely in a maximum security prison with maximum security prisoners in circumstances when detention of that nature is having a serious effect on the appellant.
Now, Justice Weinberg in the matter of Timar v Republic of Hungary [1999] FCA 691, a decision of the Federal Court which is much relied on by the first respondent in these proceedings. I believe your Honour does have a copy of that. The effect of the decision is this, that his Honour Justice Weinberg found that there were special circumstances within the expression in section 21(6)(f)(iv) of the Extradition Act as a result of the applicant's medical condition, which indicated extremely high blood pressure as a result of the level of stress suffered by the advent of the proceedings and that level of stress indicated the applicant was at high risk of a stroke or a cardiac arrest and that warranted the finding of special circumstances in that case.
So if one refers to the principles enunciated by Justice Gray together with the principles enunciated by Justice Weinberg in Timar and Justice Spender in Kainhoffer, it is clear that medical condition, psychological state, mental state, can be, by itself, a matter that amounts to special circumstances within at least the meaning of the Extradition Act, and, in my submission, certainly within the meaning of that phrase within the principle as stated in the High Court as being the standard that has to be reached to justify the Court exercising its discretion to grant bail pending special leave.
The next matter I want to turn to is the second matter identified, which is the involvement by Mr Pasini, the applicant, in criminal activity. Now, there is some dispute between the applicant and the first respondent as to the relevance of this issue. In my submission, the relevance is to the risk of flight. Could I refer to what Justice Gray had to say about this at paragraph 56 where his Honour said this:
The applicants produced a considerable quantity of evidence to the effect that proceedings taken by them in Mexico to quash the charges against them are having an effect. A warrant relating to tax offences alleged against Mr Cabal and a warrant relating to the money-laundering offence alleged against Mr Cabal, as well as warrants relating to the offences alleged against Mr Pasini, have been quashed by a judge in a proceeding known as Amparo. The Amparo proceedings are presently subject to pending appeals, so there is a possibility that the warrants will be reinstated. The effect of quashing the warrants is that, in respect of those offences, if the applicants were to return to Mexico, they would each be required to lodge a bond and would be entitled to be set at liberty.
And at paragraph 71 his Honour said this:
The risk of Mr Pasini absconding is significantly less -
in comparing his position to that of Mr Cabal.
As I have said, the offences with which he is charged are fewer in number than those of Mr Cabal, and are subsidiary to those alleged against Mr Cabal. He has much less at stake.
In fact, Mr Pasini faces three charges, which are the subject of the two warrants.
Now, I foreshadowed earlier this morning that I wish to refer to paragraphs of Mr Zinser's affidavit in support of this issue of the risk of flight and your Honour over objection allowed me to refer to those particular paragraphs. If I could just identify them without reading them: they are paragraphs 19, 20, 30 and 31 of Mr Zinser Cieslik's affidavit.
Also in this context, could I refer to the decision, in relation to this applicant, made by the Full Federal Court on 17 August 1999 in Bertran v Minister for Justice, which is variously reported, but the volume I have is [1999] FCA 1117; 165 ALR 155 and in paragraph [27] - and I will paraphrase - their Honours Justices Sundberg and Merkel in a joint judgment referred to the fact that this applicant would have been granted bail if he had been arrested in Mexico or will be granted bail once returned there. Whether that issue was a matter capable or by itself is amounting to a special circumstance or whether the magistrate was bound to take it into account in determining whether special circumstances justifying bail existed.
Their Honours found that the magistrate was entitled to take it into account and to accord it whatever weight he determined. At paragraph [28], first sentence, their Honours say this:
The declaration sought in the application was not only that the Mexico facts do constitute special circumstances, but that they may constitute special circumstances.
In the separate judgment of Justice Finkelstein, his Honour said at paragraph [37]:
The second matter I wish to address is the claim that the fact that the offences for which the appellant's extradition is sought are not treated as serious offences and that the two warrants for his arrest have been stayed might constitute special circumstances under section 15(6).
That is, of the Extradition Act. At paragraph [39] his Honour said this, after discussing the matter further:
This is not to suggest that the seriousness of the offence is not a matter to be taken into account for the purpose of deciding whether an arrested person should be remanded in custody or on bail. It is difficult to see how a magistrate could properly determine whether the grant of bail is justified without regard to the nature of the offence. For example, the issue may have a direct bearing on the likelihood of an arrested person absconding if bail is granted. However, the fact that the seriousness of the offence falls to be considered as part of the totality of the circumstances of the case does not require the conclusion that that circumstance is a special circumstance that justifies the grant of bail.
Now, I refer to those extracts from those judgments merely to highlight that the involvement in criminal activity, or the alleged involvement in criminal activity, of an applicant in these circumstances is a matter relevant to the assessment of the existence of special or exceptional circumstances, in combination with other factors, although by itself it may not amount, in a particular case such as this, to special circumstances by itself. I add in this regard, in relation to this issue of risk of flight and involvement in criminal activity, the applicant has had no prior convictions and he is otherwise a person of good character.
I have referred to the fact that he has been in custody now for a total of 26 months and although it might be said, on one hand, he is the author of his own doom in that regard because he has pursued various court proceedings which have been highlighted in the affidavit in support of the first respondent's submissions, however, our answer to that is this, that the applicant is entitled to exhaust all his appeal rights and should not be punished for that fact. But the fact remains that he has been in custody for all this period of time. He remains unconvicted in respect of allegations of committing non-serious offences over this lengthy period of time.
At paragraph 26 of Justice Gray's judgment he refers to the decision in Shoenmakers v Director of Public Prosecutions where Justice French expressed the view:
"In my opinion it can never be regarded as anything other than a special circumstance that a person should have to spend a year in prison unconvicted of any offence. A presumption in favour of liberty and against deprivation of liberty without just cause runs through the traditions of the common law which Australia has inherited from the United Kingdom."
Now, that statement was qualified and, in effect, distinguished by his Honour Justice Gray and there is no quarrel with the way in which his Honour did that at paragraph 28. Halfway through the paragraph you will see a sentence that says:
Of course, the applicants have a right to seek review of the magistrate's decision and to appeal from the judgment on that review. Under no circumstances should there be a penalty of imprisonment attached to the exercise of such a right.
Then it goes on to discuss the fact that the Minister has been deprived of the opportunity of being able to make a decision. So that is referred to just as evidence of the fact of the time in custody and how blame should not be visited upon the applicant and it is accepted that blame should not be visited upon the first respondent in that regard. I have already referred to the detention in Sirius East at Port Phillip Prison in Victoria and the deprivations and have read to your Honour extracts from the affidavit of the applicant in that regard and I will not repeat what I have read.
Could I refer your Honour to what Justice Gray said at paragraph 29 in respect of that continued detention. His Honour said:
There is no doubt that conditions in Sirius East are extremely difficult for the applicants. These conditions have been set out in some detail in earlier judgments and I need not repeat them. The range of activities open to the applicants in Sirius East is very narrow. The restrictions placed on visits and telephone communications are stringent. The procedures they are required to undergo in respect of visits and attendances at Court are drastic. In fact, however, nothing has changed in these respects since the applicants' earlier bail applications, when the same conditions were held not to constitute "special circumstances", either alone or in conjunction -
and at paragraph 30 his Honour goes on to discuss the issue of fears for safety and the fact that - and I will paraphrase:
that other prisoners held in Sirius East are serving sentences of imprisonment in respect of serious offences -
including murder and some have AIDS. At paragraph 35 the concerns are perhaps encapsulated in this statement by his Honour:
A number of judges have expressed concern that the applicants are forced to endure the conditions in which they are imprisoned. Goldberg J and I each expressed such concern in our judgments. Each member of the Full Court that heard the applicants' appeal from my judgment expressed concern in the course of argument.
I will not go on to the rest of that paragraph. So that is a matter that we say, in combination, could be taken into account. I next want to turn to a matter I have already canvassed at some length. It deals with the risk of flight, which is a major concern of the first respondent. Justice Gray refers to that at paragraph 70 and refers to the situation of Mr Cabal. At paragraph 71, which I have already read to your Honour, that position of Mr Pasini is contrasted to that of Mr Cabal. At paragraph 72, his Honour says this:
Shortly prior to the arrest of Mr Cabal on 11 November 1998, someone telephoned the home in which the Cabal family was living, and asked to speak to Mrs Cabal, using her real name. Alerted by this, one of Mr Cabal's children rang Mr Pasini. Instead of taking flight, Mr Pasini went to Mr Cabal's home, to investigate.
73 Mr Pasini has also lived as a fugitive, under assumed identifies, and has been in possession of passports and other identity documents in such assumed identifies. I am satisfied, however, that he has behaved in this way primarily because of the initiative of Mr Cabal and using the resources available to Mr Cabal. Mr Pasini is Teresa Cabal's brother. The family relationship has been a powerful factor in his behaviour. Whilst living in Australia, he has been employed by Mr Cabal in a business owned and managed by Mr Cabal. In my view, the risk of Mr Pasini absconding whilst on bail is quite low, if Mr Cabal remains in prison. It can hardly be to Mr Cabal's advantage in dealing with the charges against him if he is found to have facilitated the flight of Mr Pasini. I am satisfied that Mr Pasini would need both the initiative and the resources of Mr Cabal to organise an escape. If stringent conditions are imposed, the likelihood of this occurring will be diminished significantly.
Now, I have mentioned before, and referred your Honour to the conditions of bail that were imposed by Justice Gray, which was exhibited to the affidavit, exhibit 4, in Mr Pasini's affidavit. I make this comment in relation to his observance of those conditions and to emphasise the matters I raised earlier.
He has, without fail, observed those conditions. There has not been one occasion in which his observance has been challenged by any police officer or by the Director of Public Prosecutions or by the Government. He has reported to police, in the four days less than four months he has been at liberty between 22 December and 18 April, 231 times - 231 times he has reported to police in that period. On each occasion, within the times specified in the conditions of bail, and without fail. That, in my submission, impacts upon the assertion or suggestion by the first respondent that there is a high risk of flight in this case. Now, at paragraph 74, his Honour Justice Gray indicated that:
In deciding to admit Mr Pasini to bail, I have been influenced to a high degree by the evidence of Margaret Mary Davies.
I will not read that paragraph to your Honour but paraphrase it in saying this. Mrs Davies who, I might add, is still present in Court as she was this morning, was "motivated by a Christian desire to assist the Pasinis". She has assisted that family in a most remarkable way over a number of years. She has been prepared to place as surety her only asset of worth, which is a home owned by her and her husband at 190 Church Street, Brighton, to the value of $500,000.
That $500,000 was conditioned, not only on Mr Pasini answering his bail by surrendering himself into custody on 18 April, but was conditioned also on Mr Pasini observing a range of conditions that his Honour Justice Gray had imposed. So she took a considerable risk, but such was her trust in Mr Pasini's behaviour and expected conduct that she was prepared to do that and her trust has been borne out by his performance.
At paragraph 75 Justice Gray refers to the fact that Mrs Davies:
is a sensible person, who does not appear to me to be a party to any arrangement with Mr Cabal, or to have been carried away by any romantic notions about the plight of Mr Pasini -
and that -
She is, however, level-headed -
and -
that Ms Davies and her husband have sufficient confidence in the likelihood that Mr Pasini will not abscond whilst on bail -
which is a matter which has weighed heavily in the exercise of his discretion and decision to admit Mr Pasini to bail.
Now, I am instructed that Mrs Davies is prepared to once again be the surety, as is her husband, Michael John Hunter Davies, and that they are prepared, again, to put up as surety their house and land at 190 Church Street, Brighton in Victoria, and that such security be secured by a charge over their house and land. I understand there might be some issue about Michael Davies, the husband, as being a registered proprietor of the house. I am reading from the conditions imposed by Justice Gray, paragraph 77(a), but it appears that there may be some error in that regard. But, in any event, Mrs Davies is prepared to put up all her interest in the house in the sum of $500,000 as security for any bail.
The next matter I want to turn to is the arguability of the special leave grounds. Your Honour no doubt has in front of you the application for special leave to appeal, together with the applicant's summary of argument that has been filed in support of that application. This is a joint application made by both Carlos Cabal Peniche and the applicant. It is true as the respondent - perhaps it was the third respondent, rather than the first - but it is true that the constitutional argument applies to both applicants for special leave, but the evidence argument, if I could call that which is the subject of the second special leave ground, relates primarily to the first applicant, Mr Cabal. However, in answer to that particular proposition, if the evidence was admissible, as contended by Mr Cabal, then that would have a carryover effect in consideration of the case against Mr Pasini because Mr Pasini's crimes or alleged crimes are inextricably linked to those committed by Mr Cabal.
But if I could deal with the substantive constitutional ground briefly, my submission is that that ground is eminently arguable for the reasons stated in the summary of argument. Specifically, I would submit it is certainly arguable that if the magistrate is exercising an administrative function under the Extradition Act, then a Federal Court judge, on review, is doing exactly the same thing as the magistrate and, therefore, is also exercising an administrative function.
Now, I rely upon what has been stated in the paragraphs in the summary of argument which have been filed in support of the application for special leave. This issue has not been considered by this Court previously in the context of the Extradition Act and we would submit that it is a ground that is distinctly arguable and one - - -
HER HONOUR: But there was much more to the mere arguability of the ground in the special leave application in Peters' Case.
MR GRACE: Yes, there was, in Peters' Case, there is no doubt about that.
HER HONOUR: Custodial sentence would have been all but served by the time the special leave application was heard.
MR GRACE: Yes. That goes to the issue which your Honour raised at the outset, and that is whether the benefit of the grant of special leave would be rendered futile if bail was not granted. And that was - - -
GAUDRON J: That is a theme, at least, that has run through the decisions of this Court with respect to the grant of a stay of proceedings and the grant of bail before the grant of special leave, is it not?
MR GRACE: That is true, in respect of convicted prisoners, but, as I sought to distinguish at the outset, my submission is - - -
GAUDRON J: Yes, but the question really is: what is the nature of the inherent jurisdiction? What is its purpose? I mean, one clear purpose is to preserve the subject matter of the litigation. That much is without doubt. Where that is not an issue, what can be identified as the purpose? To prevent incarceration in the circumstances that the grant of special leave is likely? That is what Chief Justice Mason seemed to say in Kainhoffer, did he not?
MR GRACE: In Zoeller.
GAUDRON J: Zoeller, was it?
MR GRACE: Yes.
GAUDRON J: Yes. Chief Justice Mason in Zoeller.
MR GRACE: Yes, his Honour used the words - I think it was "irresistible" or something similar to that. At page 138, paragraph (g), in the second column of the Australian Law Journal Report version, his Honour said this:
However, it is not necessary for me to base my decision on that view of the inherent jurisdiction -
referring to a statement made by Justice Brennan in an earlier case -
It may be that the jurisdiction is exercisable in other cases that are exceptional where, for example, the grant of special leave is irresistible and the appeal is bound to succeed as a result of a recent decision of this Court. Be this as it may, it can scarcely be supposed that the jurisdiction is enlivened by something less than exceptional circumstances.
And then his Honour goes on to discuss the fact that:
At the point when bail is sought pending the hearing of a special leave application, the ordinary processes of appeal have been exhausted; they have resulted in a final order committing the applicant to prison. The process of appeal revives only in the event that this Court exercises its jurisdiction, an extraordinary jurisdiction, to grant special leave to appeal. There can be no assumption the Court will, or is likely to, make such a grant. Hence, to justify an order for bail, something exceptional needs to be shown.
The point I make is that bail in respect of an extradition matter does not have the effect of arresting judgment or sentence in the same sense that that is arrested where bail is sought for an applicant for special leave where that applicant is a convicted prisoner. The process of the extradition proceeds unimpeded by the fact of bail being granted or not.
Your Honour adverted to the issue of jurisdiction and principles in the decision in Robinson v The Queen (1991) 65 ALJR 519. There your Honour said, at paragraph G:
The jurisdiction of this Court to grant bail is non-statutory. It is part of the inherent jurisdiction of this Court which exists to serve the ends of justice and to perfect the administration of justice.
Perhaps that is an answer to what your Honour raised earlier, as to what purpose a grant of bail seeks to serve. And then your Honour refers to Chamberlain, by saying this:
It was said in Chamberlain v The Queen [No 1] [1983] HCA 13; (1983) 153 CLR 514 at 515, that: "in practice the grant of bail pending an application for special leave to appeal to this Court will be more restricted than the grant of bail by courts exercising a general statutory power where there is an actual appeal pending."
Then your Honour went on to say this:
Since the introduction of new procedures with respect to the grant of special leave to appeal in criminal cases, it may be that the considerations to be taken into account by this Court are not quite as restricted as they were in the case of applications pending the grant of special leave to appeal.
And then, later, your Honour said:
Because the jurisdiction which is invoked is that which is inherent and which exists to serve the ends of justice and to perfect the administration of justice, the circumstances which might properly be described as exceptional and sufficiently exceptional as to justify the grant of bail pending appeal, must, in my view, relate to the proceedings to be conducted and their relationship with the sentence being served.
And that is, of course, applicable in the traditional case. Much more recently, in Marotta v The Queen [1999] HCA 4; (1999) 73 ALJR 265, a decision of Justice Callinan, his Honour said, at paragraph [10]:
In Chamberlain v The Queen [No 1] Brennan J observed that a verdict of a jury was not to be treated for the purposes of an application for bail as provisional. That was a case however, in which an application for bail had been brought pending the hearing of an application for special leave to appeal to this Court. With respect, I doubt whether a grant of bail does treat a verdict of guilty as provisional. The verdict stands unless and until it is quashed. One of its consequences, the service of a custodial sentence, is only interrupted by a grant of bail.
Paragraph [11]:
Since his Honour's decision in Chamberlain, the Commonwealth Parliament has amended the provisions concerning the Court's power to allow an application for special leave to appeal by the insertion of s 35A of the Judiciary Act (Cth). That a change in the law may perhaps justify a different view from that which was stated by Brennan J, was adverted to by Gaudron J in Robinson v The Queen.
And I will not read the quotation from Robinson again. So my submission is, that is an answer to your Honour's question as to the philosophical or theoretical basis or principle upon which bail can be granted in a matter such as this.
Finally, can I say this, that it is my submission that, as a result of a combination of the circumstances that I have adverted to, special or exceptional circumstances have been shown to allow the discretion of your Honour to be opened and, indeed, in favour of a grant of bail, albeit under stringent provisions and conditions. If your Honour was minded to not grant bail in the circumstances as outlined, it will be my submission in the alternative that your Honour not formally dismiss the application but simply adjourn it until after the special leave application. Indeed, that was a course followed by his Honour Justice Callinan in Marotta v The Queen in the case I have just referred to.
Those are the submissions on behalf of the applicant, your Honour.
HER HONOUR: Thank you, Mr Grace. Yes, Ms Gordon.
MS GORDON: If your Honour pleases. The application for bail is opposed and is opposed on two grounds. The applicant accepts, as it must, that there is no jurisdiction under the Act for this Court to grant bail but then raises the question raised by your Honour, and that is what jurisdiction this Court has in the present circumstances. It is submitted that that jurisdiction is limited and is limited by reference to those matters and those matters being exceptional matters where the discretion is required to ensure that its own processes - that is, the Court's processes - work or, to adopt your Honour's words, to ensure that the interests of justice are met or the administration of justice is able to be carried out.
In those circumstances it is submitted that none of the matters raised by my learned friend fall into any of those categories which have been identified by decisions of this Court as justifying the exercise of the discretion. In particular, your Honour, I refer to the decision of Chief Justice Mason in Zoeller, which my learned friend has referred to, which I do not seek to repeat, but adopt those paragraphs where his Honour says that if there is a jurisdictional gap to be filled, it is only to be filled in those exceptional circumstances, first by reference to what Justice Brennan said in Narain, and that is to prevent futility of an application for special leave in the context of a criminal matter. As your Honour knows, this matter is to be heard on 22 June, so that cannot be one of the special circumstances in this case that is relied upon.
The second matters are those referred to by his Honour, those where the application for special leave is irresistible. I will take your Honour to that in a moment because it is submitted it is not irresistible. Contrary to the very matters referred to by Chief Justice Mason, where there are recent decisions of this Court, there is in fact one decision of this Court where the very issue sought to be agitated by the applicant has been decided against them. Moreover, the same point has been raised in the Full Federal Court and also assumed against them as well. So that, contrary to the submissions of my learned friend - and I will take your Honour to those in a moment - there are not cases which itself would warrant the grant of special leave and therefore it is not irresistible. The other matters raised by Chief Justice Mason are also, it is submitted, not set out in this case.
The first ground of opposition is this: there is no jurisdiction under the Act but, moreover, there is no jurisdiction within the very limited inherent jurisdiction this Court has to consider the matter.
HER HONOUR: I am not too sure that it is proper to say "no jurisdiction". A more precise way of identifying the situation would be whether it is proper to exercise such jurisdiction as the Court has.
MS GORDON: I understand that, your Honour. The point I seek to make is this, that the Court clearly and expressly has stated that the circumstances in relation to extradition where it will exercise or consider exercising its jurisdiction to grant bail are extremely limited and those limited circumstances are not met in this case.
HER HONOUR: Yes, I understand that.
MS GORDON: Your Honour, I propose to do, having dealt with that first issue, is to take your Honour through a number of facts and matters which would weigh against the exercise of that discretion if your Honour was minded to exercise it. Can I deal with a number of matters first, and that is that, as your Honour is well aware, and as referred to by Chief Justice Mason in Zoeller, an important consideration in this case, an important consideration in all cases where there is an application for bail pending an application for special leave in extradition matters, is that the ordinary processes of appeal have been exhausted and they have been exhausted in this case in a particular way and that is that there was a decision of a Full Court of a Federal Court which was unanimous. It was a decision which upheld the decision of Justice French, which itself upheld the decision of a magistrate determining this man eligible for surrender.
Moreover than that, that in the course of handing down that unanimous decision of the Full Court of the Federal Court it twice made reference to the fact that it had serious concerns about the way in which these proceedings had been conducted by the applicants and, in particular, the merits of that application. In particular, I refer you to two places where that is dealt with: the first is paragraph 119 of the decision of the Full Court of the Federal Court in this matter, which is at [2001] FCA 427; and the second place in which those matters are raised is, in this context, and that is in the context of an application for stay pending appeal by Mr Pasini before the Full Court of the Federal Court, where Justice Dowsett, in considering that matter - and the transcript of that application is exhibited to the affidavit of Mr Caporale, which was filed in opposition to this application and, in particular, at page 9 of that exhibit - it is the first exhibit, your Honour - Justice Dowsett had this to say, "I do not know what Mexico thinks, but from my point of view I cannot help thinking that there is a serious risk of absconding, and I say that because it seems to me that prima facie this man is a fugitive and having the benefit now of having looked at the way in which these proceedings have been conducted since they commenced in the Magistrates Court, it is fairly clear to me that they have been conducted in a way which has been designed to achieve as much delay as possible and with very little merits."
The submission I seek to make is this, your Honour: Chief Justice Mason in Zoeller thought it was an important consideration that we were at the end of a line in relation to appeals. That is more important in this case where one has regard to the comments made by the members of the unanimous decision of the Full Federal Court in relation to this application.
In that context, it is our submission that the grant of special leave is not irresistible and the appeal is not bound to succeed, being the tests, as we would have it, propounded by his Honour Chief Justice Mason in Zoeller. Contrary to my learned friend's submissions, the alleged constitutional issue about whether the Federal Court is exercising judicial or administrative power on review, is a matter which has been assumed by this Court and a Federal Court on numerous occasions to be constitutionally valid. In particular by Chief Justice Brennan and Justices Dawson and McHugh in the Director of Prosecutions v Kainhoffer (1995) 185 CLR 528 at page 538; by the Full Court of the Federal Court in Todhunter v United States of America [1995] FCA 1198; (1995) 57 FCR 70 at pages 80 and 82; and again by the Federal Court in Kainhoffer v Director of Public Prosecutions [No 2] (1996) 70 FCR 184 at l94.
Each of those decisions, your Honour, dealt with the Extradition Act 1988 and each of them dealt with the very question about the way in which the Federal Court was exercising its power under that section, the very point sought to be agitated by the applicants.
Moreover, as your Honour is well aware from having previous experience with the Extradition Act, this Act is set up and the processes set under it are not dissimilar in any significant way from the many different pieces of Commonwealth legislation which adopt similar processes. As long ago as 1955 in Aston v Irvine, the Federal Court, in considering the Service and Execution of Process Act, looked at this question. So for my learned friend to suggest that it is arguable that the review of administrative decisions under the Extradition Act is unconstitutional is, with respect to my learned friend, a submission which cannot be made out. By no means can it be said on that first issue that it is irresistible. It cannot be said that by recent decisions of this Court it is bound to succeed.
The second so-called issue which my learned friend describes as the evidence issue is an issue which, on any view, concerns Mr Cabal and which, on any view, concerns material which, if it has any relevance to Mr Pasini - and that is not a matter which is contended for - is of marginal relevance to him and his position. It concerns the operation of specific provisions in the Extradition Act which both Justice French and the unanimous decision of the Full Court of the Federal Court upheld, could not be led because the Act itself prevented it. This is not some question of exercise of discretion or the like. It was a question of whether or not express powers within the Extradition Act prevented the receipt of this evidence and - - -
HER HONOUR: Was this new evidence in a sense?
MS GORDON: It was, your Honour. It was evidence which was not put before the magistrate - - -
HER HONOUR: It was not tendered to the magistrate and rejected?
MS GORDON: It was not, and not only was it not tendered and rejected before the magistrate, it was sought to be raised by the applicants after his Honour Justice French had reserved his decision and was about to hand down his judgment. They sought to have the matter re-listed and sought to put before him, in an affidavit form, communications between Mr Cabal's lawyers. So, putting aside the legislative prohibition to the receipt of it, what his Honour said was the form of it itself was beyond comprehension that it could have been admissible on any view of admissibility.
As your Honour is aware, section 21(6)(d) of the Act prevents material which is not before the magistrate being considered by the Federal Court judge on review. So, in respect of the second issue, it is submitted that again it cannot be said that it is irresistible that special leave will be granted or that it is bound to succeed. I have already raised the issue in respect of bail being sought pending the hearing of a special leave application which is to take place in just over three weeks. Something exceptional needs to be shown and it has not.
May I, to the extent necessary, deal with each of the matters raised by my learned friend as constituting special circumstances and may I do it by reference to four categories. Some of them will be grouped together. Those four categories are these: the matters relating to gaol; the medical evidence concerning his psychological condition; his risk of flight; and the arguability of his grounds of appeal. In relation to gaol, may I say this. The fact that imprisonment is difficult is obvious. The fact it is not comfortable - - -
HER HONOUR: There is an additional factor here though, is there not: the maximum security; the lack of facilities for remand prisoners?
MS GORDON: There is two things to say in response to that, your Honour, and that is this. As your Honour is aware, there was an application for habeas before you in relation to these very men, an application which was not successful. Their custody is pursuant - - -
HER HONOUR: No, but that is a different argument, is it not? I mean, the question was whether they could legally be held under those circumstances.
MS GORDON: And they are.
HER HONOUR: Yes, and that has been decided. When you go to special circumstances, or exceptional circumstances, whether it be for the purposes of 21(6)(f)(iv) of the Act or for the purposes of the inherent jurisdiction, the fact that it is a particular type of custody is surely capable of being relevant, capable of being somewhat taking the matter simply out of the fact that people are going to be imprisoned at the end of the appellate process is not special.
MS GORDON: If I understand your Honour to put to me, "Is it a matter which is relevant?", the answer is, "Of course, the fact that the person is incarcerated and is incarcerated in Sirius East is a factor which your Honour has to take into account". Does itself, of itself, or in combination with other factors, constitute an exceptional circumstance? My submission is, no, and it is, no, for these reasons, that there is a presumption that you will be incarcerated if you are the subject of an application for extradition and your appeal rights have failed.
GAUDRON J: Yes, but there is not a presumption, is there, that you are going to be held in maximum security with convicted felons and prisoners, subjected to strip searches and the like?
MS GORDON: There is no presumption but the presumption is this, that section 53 of the Act provides that the circumstances under which you are incarcerated are to be dealt with by the State authorities. Those State authorities set out - - -
GAUDRON J: And at the time when the Act was enacted, one presumes one had remand prisons, 1988.
MS GORDON: I think that is probably right, your Honour. There is another matter in relation to this which I seek to have your Honour take into account in balancing those considerations and they are these - two matters. First of all, there is no evidence, and I accept that the evidence your Honour has got is evidence which on one view is difficult. There is no evidence before you that Mr Pasini is in a position which is not being considered or treated in respect of other people who are subject to extradition and who have lost their appeal rights.
The second matter is this, that Mr Pasini, of course, retains and has within the present prison system review rights. So, to that extent those matters, I seek and submit, have to be taken into account in balancing the evidence before you concerning conditions in gaol and the location of his incarceration.
GAUDRON J: Now, did HREOC make a preliminary finding about these gaol conditions?
MS GORDON: Mr Walters is here in respect of those matters. I have no instructions in relation to them, although I understand the position is this, that the position of the Commonwealth is that there was a finding made but in circumstances in which the Commonwealth was not given a right to be heard or was not given the entitlement to be heard to put submissions in response.
GAUDRON J: But obviously there is reason to think these gaol conditions are a little unusual, at least outside Victoria, is there not?
MS GORDON: I have no experience in New South Wales, your Honour, or in the ACT, but what I seek to say to you is this, that there is no evidence that if any other person whose extradition was sought from this country to another country who was in Victoria would be put in any other place at any other time. Moreover, Mr Pasini does have and retains rights of review within the prison system in relation to those matters which he finds either not to his choice or matters which he finds difficult.
We accept the prison is difficult. We accept that prison is uncomfortable. We accept that it causes hardship on Mr Pasini and on his wife, but it is submitted that if those circumstances apply to each and every person who is subject to an application for extradition and who is in prison, having exhausted his legal rights, except for the application for special leave to appeal, then those circumstances do not of themselves make him any different from anybody else and do not of their own selves make them exceptional circumstances for the purpose of the exercise of your inherent jurisdiction.
In dealing with that, may I add one further matter. My learned friend relies on the fact that Mr Pasini has now been in prison for some 26 months. In answer to that, may I say this. Also, as my learned friend points out, that fact cannot be used against us because of the fact that Mr Pasini has taken numerous applications, being those applications set out - - -
HER HONOUR: It is not a question of being used against you. It is a question of whether it can be used against him, is it not?
MS GORDON: Well, we would submit that it can be used against him and it can be used against him for this reason. If one has regard to the comments of the Full Court of the Federal Court on the handing down of the decision concerning the steps taken and the extent to which each of those steps had little merit, then, in our view, it is a matter which can be used against the applicant. It is preventing the Minister from making a determination, a determination about whether Mr Pasini is released or whether he is returned to Mexico, both outcomes of which would mean he would not be in prison, both outcomes of which would mean he would not be in prison in Sirius East.
Can I then move to deal with the medical evidence. Mr Pasini's medical condition it is again submitted not a special circumstance, whether taken on its own or in combination with the other factors. As Mr Cummins stated this morning, a reactive agitated depressive disorder is not uncommonly observed by people who are incarcerated and especially by people who are either charged or find themselves convicted of white collar offences.
There is one other factor in relation to this that I ask your Honour to take into account and that is this. Mr Cummins last saw Mr Pasini on 6 May, some 25 days ago. He has not seen him since. There are less than 25 days to the hearing and determination of Mr Pasini's application for special leave. In the circumstances, it is submitted that of itself is sufficient circumstance for it to fall outside of the requirement, therefore, for there to be exceptional circumstances. There is a very short period of time.
Two matters to go, your Honour, one is risk of flight. In relation to the risk of flight, two events have occurred since Mr Justice Gray granted Mr Pasini bail. One I have already referred to, and that is the unanimous decision of the Full Court, which is the subject of the application for special leave. The second is this, and that is that on 10 May of this year, the Full Court of the Federal Court unanimously rejected or dismissed appeals by Mr Pasini and his wife, Mr Cabal's wife and each of the Cabal children, against the refusal to grant them protection visas.
HER HONOUR: Does that mean that they are illegal immigrants? I think that is not - - -
MS GORDON: All I can say is this, your Honour, there is no evidence of their status in Australia at the moment. Their present status is that their appeals against the refusal to grant protection visas was dismissed unanimously.
HER HONOUR: So their present status is not clear?
MS GORDON: Correct. I am told by my learned friend they are on bridging visas. There is presently no evidence before your Honour about their status.
HER HONOUR: Are bridging visas on the assumption that there will be an appeal to this Court with respect to the refugee issues? Or perhaps I can ask - - -
MS GORDON: The answer is, I do not know.
HER HONOUR: Yes, well, perhaps Mr Walters can tell me.
MS GORDON: But my present submission is this, is that there is no evidence before your Honour in relation to their status. What is publicly on record is that their applications for appeals against the refusal to grant protection visas has been unanimously dismissed by the Full Court of the Federal Court.
In relation to risk of flight, may I also add two other matters. One is the reference to the fact of the existence of the false documents which are exhibited to Mr Caporale's affidavit, in particular in relation to Mr Pasini and his wife, being the true Dominican Republic passports in false names, and the same in respect of the identity cards from the Republic of Uruguay. In respect of the seriousness and involvement in the crime, may I refer your Honour to paragraph 8 of the affidavit of Mr Caporale, where he sets out the two arrest warrants and three offences with which Mr Pasini's extradition is sought. The maximum penalty for two offences is nine years imprisonment and for one offence is three years imprisonment and it is submitted, on any view, they are offences of a serious nature.
In relation to the last group of matters relied upon by my learned friend concerned the application for special leave. I will not repeat what I said earlier in relation to those, your Honour, but on no ground can it be said that it is irresistible. On no basis can it be said that it is bound to succeed by reason of some recent decision of the High Court, being the two matters referred to by Chief Justice Mason in Zoeller.
The submission of the first respondent that something more is required to be shown for there to be exceptional circumstances of a limited nature which we have discussed and it is submitted that none of the matters raised, whether collectively or singularly, constitute and satisfy that requirement. If your Honour is of the view that special circumstances do exist - and of course we would submit that they have not been - then we would submit that as a matter of the exercise of your Honour's discretion, there are a number of facts and matters which your Honour should take into account and that in respect of those, it would be submitted that bail should not be granted by reason of them.
They are set out in paragraph 18 on page 5 of the first respondent's submissions. First of all, Mr Pasini is a fugitive. Secondly, he and his wife, each had a passport in a false name from the Dominican Republic which were extensively used, together with identity cards and false names from the Republic of Uruguay, and they are set out as exhibit 4 to the affidavit of Mr Caporale. Mr Pasini does not have any ties to Australia for the reasons set out in relation to the dismissal of the appeals against the refusal to grant protection visas. The special leave application has no real prospects of success. There is only a very short period of time before the special leave application is heard.
There are two other matters. The application for special leave is the latest and last, it is submitted, in a long line of applications, all of which have been unsuccessful other than the application for bail before Justice Gray. In respect of the question of surety, it is the position, as we understand it, having regard to what occurred in December, that Mrs Davies is the sole proprietor of the home which has been offered as surety, not as joint proprietor, and in one respect is now less because of the surety offered than that which was offered - - -
HER HONOUR: I do not follow that, sorry.
MS GORDON: The surety offered here before your Honour is in some respects less than that which was offered before Justice Gray. It is a minor matter but is a matter which is worth noting. Finally, your Honour, can I deal with this position. Although your Honour may form the view that the conditions in gaol are matters which are of concern, may I remind your Honour of this, that in dealing with the matter in December, Justice Gray formed the view based upon numerous decisions which considered this matter and these applicants, the gaol conditions themselves, whether taken singularly or cumulatively with the other matters raised, were not special circumstances. If your Honour pleases, they are the submissions of the first respondent.
HER HONOUR: Thank you, Ms Gordon. Yes, Mr Walters. Do you have anything to add?
MR WALTERS: Your Honour, the only issue that I wanted to address, and then only if it is necessary, concerned the preliminary findings of the Human Rights and Equal Opportunities Commissioner. I did discuss this with my learned friend earlier.
HER HONOUR: Let us not worry about their findings as such. Would I be right in thinking that the conditions under which Mr Pasini is imprisoned in Victoria are different from those which would be encountered by persons in other States in a similar position?
MR WALTERS: Not in all other States, firstly. Secondly, it depends - - -
HER HONOUR: Where else would they be encountered?
MR WALTERS: It is possible that they could be encountered in any other State. The situation is that because Mr Pasini is being held in maximum security, there is very little distinction, as we understand it, between convicted prisoners and those on remand. In that maximum security situation, that could apply in, I think, almost any other State but there are differences from State to State.
HER HONOUR: Well, in other States would unconvicted persons have restricted visiting right?
MR WALTERS: Yes.
HER HONOUR: They would. And would be subject to strip searches?
MR WALTERS: I do not know about strip searches, your Honour.
HER HONOUR: Very well. They would not automatically be put in maximum security either; is that right?
MR WALTERS: No. There is no suggestion that Mr Pasini has automatically been put in maximum security. There has been litigation about that and proceedings in relation to that, and it is not automatic. That has been as a result of decisions made within the prison system.
HER HONOUR: At least one may assume, though, that many people would be in remand sections of prison in similar circumstances.
MR WALTERS: One could assume that. Where they are not in maximum security, there would be prisoners segregated, if that is the principle that your Honour is looking for, as between remand and convicted prisoners, not in all circumstances, but certainly - - -
HER HONOUR: And usually their prison rights are quite different, are they not?
MR WALTERS: Yes. There are distinctions in Victoria as well, as we understand it. I should say I do not act for Victoria, but as we understand the position, there are distinctions, but where someone is in maximum security, those distinctions are distinctions of a low order and not relevantly significant.
HER HONOUR: Yes.
MR WALTERS: Now, that is as we understand the position. There were some things to be said about the Human Rights and Equal Opportunity Commission but, as we understand it, our friend has not relied on that, so I would be answering something that is not, in fact, raised in terms. The real question, as we understood the way it was put, was the continual detention in Sirius East Unit rather than anything to do with the legalities of the Human Rights and Equal Opportunity Commission Act.
HER HONOUR: Would many persons subject to extradition proceedings be incarcerated in Sirius East? You tell me this is not something that automatically happened to Mr Pasini.
MR WALTERS: Certainly not, your Honour. I think a few things should be said. There are not many people subject to extradition at any one time. I am not sure of the exact figures, but it would vary, but there would not be a significantly great percentage of the prison population. I am not aware of anyone other than Mr Pasini and Mr Cabal who are in Sirius East.
HER HONOUR: Or have ever been in - - -
MR WALTERS: They are always held within the prison system, not any other system, and then it is a matter for the prison authorities as to how they classify them and they have various matters they take into account in that regard.
HER HONOUR: Did you tell me that there are other possibilities than Sirius East even within the Victorian prison system?
MR WALTERS: Yes, there are.
HER HONOUR: Well, that is looking a little bit exceptional, is it not?
MR WALTERS: Well, not really because - - -
HER HONOUR: At least in the sense of not the usual course of events.
MR WALTERS: Well, it is usual for prisoners to be classified and they have to be classified somewhere. In this case the prison authorities, who are not represented here, have taken a position as to the appropriate classification.
HER HONOUR: Yes, but the question now arises whether, in the events which have happened, that can be said to bring Mr Pasini within the adjective "exceptional". At least it appears that it is certainly a little out of the ordinary.
MR WALTERS: Well, with respect, first of all we say that that, as we understand it, is not in itself relied upon. Secondly, if it were to seriously be argued, one would have to look at the reasons why the person was classified in that way, and at the moment there is simply no material in relation to that and it may be that such - - -
HER HONOUR: No. I would have thought your end of the Bar table would be the end that might naturally provide that material to defeat a suggestion that this was at least a little out of the ordinary.
MR WALTERS: Well, the prison authorities are not within the - - -
GAUDRON J: No. It is all very well to talk about the prison authorities. You are representing the Attorney-General. He in turn in these proceedings is representing the Commonwealth of Australia.
MR WALTERS: Yes.
GAUDRON J: All of this is happening pursuant to legislation of the Parliament of the Commonwealth of Australia. Now, it may be that you have delegated in one way or another to State authorities, but if you were to wish me to assume either that this was perfectly ordinary or that it was perfectly explicable, that I would expect you to provide evidence to that effect. Why should I not?
MR WALTERS: Well, your Honour, if it would be of assistance, we will seek that evidence. They are not from Commonwealth officers, but one of the problems that may arise is this, that the material that will come to light is material that would be very adverse to the applicant in relation to the disposition. Material of that nature was in fact canvassed before Justice O'Bryan in the Victorian Supreme Court when Mr Cabal - not Mr Pasini, as I understand it - sought certain orders in relation to his shackling and it included, as I understand it, material in relation to intelligence that the prison officers had obtained. Now, the Commonwealth is not the authority actually holding these people.
GAUDRON J: No, but they are being held on your behalf in a sense, in a real sense.
MR WALTERS: I follow what your Honour is saying. Section 53 is the - - -
GAUDRON J: Well, they are not prisoners of the State, are they?
MR WALTERS: Well, they are held pursuant to the State laws, that is what section 53 - - -
GAUDRON J: They are held pursuant to statutory delegation of that responsibility to the States, are they not, which statutory delegation derives from the Constitution.
MR WALTERS: Yes. Well, section 53 is the power that applies the State laws, your Honour.
GAUDRON J: That is right.
MR WALTERS: Yes.
GAUDRON J: Well, the State laws are not operating of their own effect. They are operating because they are given effect by section 53 of the Extradition Act.
MR WALTERS: Yes, your Honour, that is correct.
GAUDRON J: Well, they are being held then in a real sense on behalf of the Commonwealth, and in accordance with Commonwealth law, which apparently does not always work in the same way, is that correct?
MR WALTERS: Well, because the Commonwealth law - in the Extradition Act the law of each State is relevant for a number of purposes, including the laws holding the persons in custody. There are no separate Commonwealth prisons in the different States and, accordingly, it is necessary to rely on the State facilities. So, that is the way the system works and there are not separate categories of Commonwealth prisoners. Now, if it would be of assistance, we can obtain the material from the officers concerned as to the reasons they have held the - or we can seek material as to the reasons Mr Pasini - - -
GAUDRON J: That is a matter for you, Mr Walters. You have not done it and that is as it is.
MR WALTERS: Yes. We would respectfully say a couple of further things, your Honour. Firstly, we would say that the Commonwealth has not retained ultimate responsibility for the conditions on which Mr Pasini - - -
GAUDRON J: No, but the Commonwealth has enacted legislation. The Commonwealth Parliament has enacted section 53 of the Act making State law surrogate Commonwealth law. Now, it did not have to do that. It could have dealt with it in any number of ways. It could revisit or it might not. I consider that there is a possibility that the Act is operating so that things are different for extradition prisoners in the State of Victoria than elsewhere in Australia. That much seems to be conceded, that at least there is a significant possibility that things are different. That is right, is it not?
MR WALTERS: Well, I am not sure that I conceded that, your Honour. The position is that where Mr Pasini is, as he is, held in maximum security, we are not sure that there would be a significant difference in any State in Australia.
HER HONOUR: But you are not in a position to tell me that he would be held in maximum security of the kind at East Sirius if there were remand facilities available, if there was secure remand facilities in other States.
MR WALTERS: Maximum security would apply to prisoners, whether or not on remand, in most States, as I understand it, your Honour. It is not a category that is distinct.
HER HONOUR: Very well.
MR WALTERS: So that it is not the case, as we understand it, that there is a significant difference. Once one assumes that there is maximum security applications - - -
HER HONOUR: Well, it is a matter about which you say you have not provided evidence.
MR WALTERS: Your Honour, I am in the situation where my learned friend did not read the paragraphs of the affidavit that related to the Human Rights and Equal Opportunity Commission Act.
HER HONOUR: But there is reference to the conditions in which he is held in prison.
MR WALTERS: Yes.
HER HONOUR: And one knows that that is a Victorian prison. One knows that there are no remand sections in Victorian prisons. One knows that in a number of other States there are remand facilities.
MR WALTERS: I should say that there are remand sections in Victorian prisons but once one goes to maximum security, as Sirius East is, the distinction no longer applies, is the more accurate way, your Honour.
HER HONOUR: I see, thank you.
MR WALTERS: So, with respect, your Honour does not have evidence from either side of the Bar table that the conditions for maximum security prisoners are exceptional or unusual as between States.
HER HONOUR: Very well.
MR WALTERS: If your Honour pleases.
HER HONOUR: Is there provision to challenge one's classification?
MR WALTERS: Yes, there is, your Honour. Yes, there are avenues for administrative challenge to the classification and I can say that Mr Cabal has pursued those avenues, I am not sure what the position is in relation to the present applicant, Mr Pasini. My learned friend tells me he has challenged his classification without success. Your Honour, those are the submissions. I am really concerned to meet the particular matters that your Honour is raising rather than stray into other areas because I was really limiting my submissions to a more confined basis rather than dealing with the broader issues of the merits of the application. If your Honour pleases.
HER HONOUR: Yes, thank you. Mr Grace, do you have anything in reply?
MR GRACE: Yes I do, your Honour. Let there be no mistake about it, your Honour, my submission is that the circumstances of the applicant's incarceration are matters that we rely upon. The facts of his incarceration are not controverted. It is submitted that Mr Pasini is housed in the exceptional circumstance of the most complete deprivation of liberty and facilities possible in the Victorian prison system. There could be no more deprivation of liberty and facilities other than solitary confinement that Mr Pasini could face.
The suggestion that Mr Pasini would have anything to hide if the circumstances behind him being housed in Sirius East were brought to the fore, is rejected, your Honour. There have been no matters that Mr Pasini is aware that would be prejudicial to him if the circumstances surrounding his incarceration in Sirius East were brought to the fore. Mr Pasini does depose to - and I think it is also referred to in Mr Cummins reports - that the reason he is being housed in Sirius East is for protection from threats from other prisoners. There is no allegation and no evidence, that Mr Pasini is aware of, that would suggest that Mr Pasini is responsible for his classification in the maximum security facility in that prison.
Could I refer you once again to paragraph 58 of Mr Pasini's affidavit where he says:
The prison authorities have told me that I am in the Sirius East block at Port Phillip Prison for my own protection. I did not experience any trouble with any prisoners before being moved to Sirius East and I did not feel in any danger in the mainstream prison. I find the conditions in which I am imprisoned in Sirius East hard to bear.
Now the next matter I wanted to refer your Honour to in relation to this issue is the fact that section 53 is predicated on the basis that a person in the position of Mr Pasini would be housed in a remand section of a State or Territory prison and section 53, in its terms, specifies that fact. It says this:
The laws of a State or Territory with respect to:
(a) the conditions of imprisonment of persons imprisoned in that State or Territory to await trial for offences against the law of that State or Territory;
apply, so far as they are capable of application, in relation to persons who have been committed to prison in that State or Territory under this Act.
So it is predicated on the basis, in 1988, when this Act was passed by the Federal Parliament, that the remand sections of State and Territory prisons would be used. Now, it is a fact that in Sirius East at the present time I am instructed that there are no remand prisoners, but merely convicted prisoners.
The next matter concerns the issue of the bridging visas. The applicant and his wife - - -
HER HONOUR: I do not think that is important.
MR GRACE: All right.
HER HONOUR: I mean, you can deal with it if you like, but - - -
MR GRACE: All I am saying, your Honour, is that my instructions are that they are both on, as are other members of the Cabal family, who are at liberty, on bridging visas. There is a special leave application about to be launched in respect of the decision of the Federal Court in respect of the immigration matter. There is also an action in the original jurisdiction of the High Court under section 75 to be brought seeking prerogative relief against the Minister, Mr Ruddock, in relation to that issue.
Now, in relation to the issue of flight, Justice Gray, it is submitted, dealt with that issue of flight in a most adequate manner and properly characterised the risk that pertained to the applicant and nothing has changed, in our submission, to warrant any different conclusion to be made and particularly the circumstances surrounding him as an observance of the bail conditions would militate against any finding to the contrary.
Again, I refer to Mr Cieslik's affidavit in which he has deposed to the classification of the offences that Mr Pasini faces as being non-serious.
Now, as to the special leave question, the constitutional issue, the constitutional question calls into issue the validity of an Act of the Commonwealth Parliament. The Act has the most serious consequences for citizens and visitors alike.
No High Court authority has considered whether section 21 of the Act is constitutionally valid. The reference by my learned friend Ms Gordon to Kainhoffer's Case is apt to be misleading in that in Kainhoffer the majority Judges of this Court who considered the matter assumed validity but did not decide it. The question was apparently not in issue in Kainhoffer and it is true that there have been judgments of the Full Federal Court dealing with the issue but this is an application for special leave from such a judgment.
The next matter I want to turn to is the so-called Zoeller test and your Honour will recall my learned friend postulating as the test being in respect of the exercise of jurisdiction being that expressed by his Honour Chief Justice Mason in Zoeller. Now, it must be carefully read to allow the emphasis that my learned friend seeks to be placed on that particular extract to be refuted. What his Honour said was this:
It may be that the jurisdiction is exercisable in other cases that are exceptional where, for example, the grant of special leave is irresistible and the appeal is bound to succeed as a result of a recent decision of this Court.
Now, what his Honour was giving there was by way of example. It was not, and cannot be read, as emphasising some complete or exhaustive step as to in which circumstances the jurisdiction could be enlivened and, indeed, in the next sentence, his Honour says:
Be this as it may, it can scarcely be supposed that the jurisdiction is enlivened by something less than exceptional circumstances.
We do not contend for anything different to that. Unless your Honour has any specific matters that you wish to draw my attention to, that completes my submissions.
HER HONOUR: Yes, thank you, Mr Grace.
It may be that, absent explanatory evidence, the condition of Mr Pasini's imprisonment and its psychological consequences could properly be held to constitute special circumstances for the purposes of section 21(6)(f)(iv) of the Extradition Act (Cth).
However, it is common ground that that is not the question now to be answered. That question is whether there are special or exceptional circumstances which would warrant the exercise of this Court's inherent jurisdiction to grant bail pending the determination of an application for special leave to appeal. In general terms that jurisdiction exists to protect the judicial process and to serve the ends of justice.
The special leave application brought by Mr Pasini and by Mr Cabal is to be heard in Melbourne on 22 June next, a little over three weeks from today. Having regard to that fact, and to the nature of the questions raised by the special leave application, I am not persuaded that it would be a proper exercise of this Court's inherent power to grant bail pending the determination of the special leave application.
Now, Mr Grace, you ask that I stand the matter over?
MR GRACE: Yes, I make that application. I rely upon the procedure adopted by Justice Callinan in Marotta to await the determination of the special leave application, rather than simply dismiss the application and then cause a new application to have to be filed.
HER HONOUR: Yes. Do you resist that course, Ms Gordon?
MS GORDON: No, we do not, your Honour. It seems appropriate, given Mr Cabal's has been put over on a similar basis.
HER HONOUR: Yes. Mr Walters, your position is the same?
MR WALTERS: Yes, your Honour.
HER HONOUR: Yes. Well, I will stand the matter over with leave to Mr Pasini to seek its restoration to the list on 48 hours notice in the event of the grant of a special leave. I should indicate that in those circumstances it will certainly come before somebody other than myself and should not be treated as a part-heard matter. I take it that does not raise any problem, does it?
MS GORDON: No, it does not, your Honour.
MR GRACE: No, your Honour.
MS GORDON: The only question that I should raise is this, your Honour, and that is the question of costs and that is whether or not that matter should be expressly dealt with as part of the order, given that the matter is to be adjourned over.
HER HONOUR: Yes. Well, do you seek costs?
MS GORDON: I am instructed to seek them, your Honour.
HER HONOUR: It is very akin to a criminal matter, is it not?
MS GORDON: It is, your Honour.
HER HONOUR: It is not the practice of this Court to grant costs in criminal cases.
MS GORDON: If your Honour pleases.
HER HONOUR: Do you have anything further to say?
MS GORDON: No, I do not, your Honour.
HER HONOUR: No. Each party will bear its own costs of today's proceedings, otherwise the matter is stood over to a date to be fixed. Before I adjourn, there is no need to certify for the attendance of counsel, is there?
MS GORDON: There is not, your Honour.
HER HONOUR: No. No, thank you. The Court will now adjourn.
AT 2.47 PM THE MATTER WAS ADJOURNED
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