Cabal v United Mexican States [No 2] [2001] HCA 43

HIGH COURT OF AUSTRALIA

KIRBY J

CARLOS CABAL (PENICHE) & ANOR APPLICANTS

AND

UNITED MEXICAN STATES & ORS RESPONDENTS

Cabal v United Mexican States [No 2]

[2001] HCA 43

19 July 2001

M39/2001

ORDER

1. Admit the first applicant to bail upon the conditions ordered.

1. Reserve liberty to apply in respect of the possession of the security documents. 2. Reserve costs. 3. Stay the coming into effect of the foregoing orders until 20 July 2001 at 4.30 pm.

Representation:

G Griffith QC with D S Mortimer for the first applicant (instructed by Fernandez Canda Gerkens)

No appearance for the second applicant

G T Pagone QC with K P Hanscombe for the first respondent (instructed by Director of Public Prosecutions (Commonwealth))

No appearance for the second respondent

B E Walters for the third respondent (instructed by Australian Government Solicitor)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Cabal v United Mexican States [No 2]

Constitutional law – High Court and federal judiciary – Implied or inherent powers – Distinction between implied and inherent powers – Whether implied or inherent jurisdiction and power to grant bail pending hearing – Whether bail only available to prevent futility of proceedings – Purpose of constitutional jurisdiction and power.

Practice and procedure – Application for special leave to appeal referred for hearing before Full Court of the High Court – Proposed appeal concerns constitutional challenges to validity of Extradition Act 1988 (Cth) – Applicant subject to extradition determination applies for bail pending hearing of application before Full Court – Applicant in custody for more than 30 months – Severe conditions of custody.

Extradition – Bail – High Court – Implied or inherent power to grant bail – Purpose of implied constitutional jurisdiction and power to grant bail to applicant for special leave to appeal referred to Full High Court – Need for exceptional circumstances – Proof of prolonged detention in severe custodial conditions during pendency of proceedings – Discretionary considerations for the grant of bail − Terms and conditions appropriate to bail – Whether sureties and delivery of certificate of title, mortgage and transfer of mortgage over substantial property sufficient security for compliance with bail conditions.