Cabal v United Mexican States (No 2)

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.