Cabal v United Mexican States (No 2)

Link copied
Case Copied 34 min read

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.

2.   Reserve liberty to apply in respect of the possession of the security documents.

3.Reserve costs.

4.   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.

  1. KIRBY J.   This is an application for bail by Carlos Cabal (Peniche) ("Mr Cabal").

    The course of the proceedings

  2. An earlier application by Mr Cabal was before me on 28 and 29 June 2001.  At that time an application was also made by Mr Marco Pasini (Bertran) ("Mr Pasini") who, with Mr Cabal, is an applicant for special leave to appeal from a judgment of the Full Court of the Federal Court of Australia.  On 22 June 2001, that application for special leave was referred to be heard by a Full Court of this Court.

  3. On the previous occasion, I ordered expedition of the hearing of the application before the Full Court; I granted bail to Mr Pasini; and I refused bail to Mr Cabal[1].  However, I made it plain that the precondition to the grant of bail to Mr Cabal had been made out, as it had been in the case of Mr Pasini.  For reasons which I then gave, Mr Cabal had established that exceptional circumstances were present in his case[2].  The sole reason for refusing bail to Mr Cabal was the failure of Mr Cabal, on that occasion, to establish (as Mr Pasini had done) that he was in a position to offer sureties and an appropriate security or other assurances against the risk that he might abscond[3] while subject to the bail conditions set by this Court.

    [2]Cabal [2001] HCA 42 at [40]-[47], [62]-[63].

    [3]In the earlier application, Mr Cabal's counsel suggested use of an electronic tag.  See Cabal [2001] HCA 42 at [56]. This was not pressed in the present application.

  4. In the earlier hearing, I made it plain that, had such sureties and security been provided by acceptable evidence[4] (or some other assurance afforded against the risk of flight), I would have been willing to consider admitting Mr Cabal to bail.  I stated that, in my then opinion, I would not have been minded to grant bail to Mr Cabal without…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Cabal v United Mexican States (No 2) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2001] HCA 43
Decision Date

CaseChat Overview and Summary

The parties to this matter were Mr Cabal, the applicant, and the United Mexican States. Mr Cabal, who had been in custody for over 30 months under severe conditions, sought bail pending the hearing of his application for special leave to appeal to the Full Court of the High Court. The proposed appeal concerned constitutional challenges to the validity of the *Extradition Act 1988* (Cth). The application was heard by Kirby J of the High Court.

The central legal issue before the court was whether the High Court possessed an implied or inherent jurisdiction and power to grant bail to an applicant in Mr Cabal's circumstances, particularly before special leave to appeal had been granted. This involved distinguishing between implied and inherent powers and determining the purpose for which such constitutional jurisdiction and power might be exercised, including whether bail was only available to prevent the futility of proceedings. The court also considered the specific legal framework of the *Extradition Act 1988* (Cth) and whether bail could be granted under that Act or pursuant to the Constitution in the absence of special leave.

Kirby J determined that the High Court did possess the constitutional jurisdiction and power to grant bail in these circumstances, distinguishing this from the powers available under the *Extradition Act* itself. His Honour found that exceptional circumstances were required for the grant of bail, and these were established by the applicant's prolonged detention in severe custodial conditions, unsegregated from convicted prisoners. The court considered discretionary factors, including the risk of absconding, the availability of sureties, and the discovery of false identity documents after arrest. His Honour reasoned that the presumption favouring personal liberty, coupled with substantial and rigorous bail conditions, would mitigate the risk of absconding to a tolerably small level, thereby preventing the denial of bail from effectively discouraging the exercise of constitutional rights.

The court ordered that Mr Cabal be admitted to bail upon specified conditions, reserving liberty to apply regarding the possession of security documents and reserving costs. The coming into effect of these orders was stayed until a specified date and time.

Orders

Orders of the court

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

2. Reserve liberty to apply in respect of the possession of the security documents.

3. Reserve costs.

4. Stay the coming into effect of the foregoing orders until 20 July 2001 at 4.30 pm.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Fourthly, the only way that every conceivable risk that Mr Cabal might abscond could be totally avoided would be by denying him and anyone like him bail, whatever were the other "special" or "exceptional" circumstances of the case. This is neither the standard of the Act[54] (where it is applicable) nor of the Constitution[55]. Mrs Cabal was retained in detention for several months. When released, she did not abscond. Mr Pasini was kept in the conditions of imprisonment which I have described for more than two years. When released on bail, first by order of Gray J in the Federal Court and then by my order, he did not abscond. Although there is always a risk with any grant of bail that the terms will be breached, the conditions which I would contemplate would be so substantial and rigorous that the risk will be tolerably small. To refuse bail upon such propounded terms would, in my view, serve, as his counsel submitted, to "crush the spirit" of Mr Cabal so as, in effect, to discourage him from exercising the rights which he enjoys under the Constitution and under Australian law. Those rights exist not only for the benefit and self‑respect of Mr Cabal. They exist for the benefit and self‑respect of the Australian people and all those who seek to invoke the protection and justice of their Constitution[56].[54]Referring to the Act, s 21(6)(f)(iv).[55]Referring to Zoeller (1989) 64 ALJR 137 at 138-139; 90 ALR 161 at 164.[56]cf Mickelberg v The Queen (1989) 167 CLR 259 at 288; Eastman v The Queen (2000) 74 ALJR 915 at 959 [249]; 172 ALR 39 at 98-99.The evidence of the security offered to ensure bail compliance The evidence before me, relevant to my decision and to the conditions upon which bail might be considered, falls into several categories. Much of the evidence is designed to supply an enforceable security in the sum of at least $2 million, which, in the earlier hearing, I indicated was my then view as to the minimum security that I would require as a condition of bail in addition to the personal sureties and the provision of security by them in further but lesser sums[57]. The critical security propounded is over a substantial property in Armadale, a Melbourne suburb.[57]Cabal [2001] HCA 42 at [63]. Mr Craig Kilby, a qualified valuer, deposed in his affidavit which was not challenged that, subject to assumptions and qualifications expressed in the affidavit, the estimated value of the property is $2,500,000. On the property stands the home in which Mrs Cabal and her children live and to which Mr Cabal would return if he were granted bail. In his affidavits Mr Cabal deposes that, following my earlier decision, he required his lawyer to endeavour to obtain an enforceable security over the Armadale property. He states that he instructed his lawyer to ask a friend, Mr (Withrop) Scott Perry, if he, Mr Cabal, could use the property as security for the purpose envisaged. The registered proprietor of the property is an Australian shelf company. That company acquired the property substantially out of capital sent from overseas to its then solicitors for the benefit of Mr Cabal and his family. The capital was provided by a company named Dosca Ltd. That company is registered in the British Virgin Islands. According to Mr Cabal, and also according to Mr Perry, it is effectively controlled by Mr Perry. A first mortgage was granted by the registered proprietor to Dosca Ltd and that mortgage is registered on the certificate of title. It is the only interest so recorded.

Decision

Reasons for decision

KIRBY J (dissent)

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by:

I also reject any suggestion that I am controlled or limited in the exercise of this Court's jurisdiction and powers by what other judges in another court, on different evidence, in different circumstances, at an earlier time, have concluded[48]. The jurisdiction and power of this Court being established, as I hold they are, I must exercise them for myself and I proceed to do so. I therefore turn, as on the last occasion, to the consideration of the discretionary questions presented by this application and the terms upon which bail might be granted to Mr Cabal if the discretionary considerations favour that course[49].[48]Cabal [2001] HCA 42 at [34].[49]Cabal [2001] HCA 42 at [47].Four considerations relevant to the bail discretion It was inherent, and in some respects expressed, in my reasons in Mr Cabal's earlier application that I have taken into account, in deciding his application, and in exercising my discretion and formulating the conditions of bail, a number of considerations raised during argument. On this occasion, I would mention four of them. First, by reason of the order of expedition of the hearing of the application to the Full Court, this will now take place in September or October 2001, rather than in 2002 as otherwise it would have done[50]. Whilst this consideration lessens the time that Mr Cabal would remain in custody were bail refused, it also reduces the period during which he would be on bail and subject to any risk of absconding[51].[50]After these reasons were delivered and orders pronounced, the hearing of the special leave application before the Full Court was fixed for 6-7 September 2001.[51]cf Cabal [2001] HCA 42 at [10]. Secondly, it is true (as Mexico emphasised) that Mr Perry (who will shortly be mentioned and who lives abroad) and Mr Pace (who lives in Sydney) would not be present in Melbourne and able, by their physical proximity, to offer to Mr Cabal an effective assurance that he complies with his bail conditions[52]. However, that leaves as sureties three persons of good character who are acquainted with Mr Cabal and his family, who live in Melbourne, who have expressed the conviction that he will comply with his bail conditions and who have offered security, according to their means, as a warrant of what they have said.[52]cf R v Southampton Justices; Ex parte Green [1976] QB 11 at 19; R v Waltham Forest Justices; Ex parte Parfrey [1980] Crim LR 571; Schoenmakers v Director of Public Prosecutions (No 2) (1991) 31 FCR 429 at 436-440. Thirdly, it was established by Mexico that, after his arrest, further false identity documents or applications for false documents were discovered in relation to Mr Cabal. The possibility of the existence of still further such documents cannot be completely ruled out. However, such documents relate to a time when Mr Cabal was an undoubted fugitive. He is now under the control of the Australian courts and authorities. A requirement of twice daily reporting to police would permit an alert to be sounded within a very short time of any decision by him to return to a life on the run[53].[53]cf Cabal [2001] HCA 42 at [38].