Cabal v United Mexican States

The applicants, Cabal and Pasini, sought special leave to appeal to the High Court of Australia against extradition determinations made under the *Extradition Act 1988* (Cth). Their applications for bail, made while in custody for over 31 months, raised questions concerning the High Court's implied or inherent jurisdiction and power to grant bail, and whether such powers were ousted by the Act's specific bail provisions.

The central legal issues before the Court were whether the High Court possessed an implied or inherent jurisdiction and power to grant bail to applicants for special leave to appeal, particularly when their constitutional challenges to the *Extradition Act 1988* had been referred for hearing to the Full Court. The Court was required to determine if exceptional circumstances were established to enliven this jurisdiction and power, and if so, whether the discretion to grant bail should be exercised, considering the relevance of earlier bail applications in the Federal Court, the prolonged detention in severe custodial conditions, and the suitability of electronic tagging and home detention as bail conditions.

Kirby J reasoned that while the purpose of requiring applicants to demonstrate "special" or "exceptional" circumstances for bail is to justify departure from the normal rule of detention, the referral of the applications for special leave to the Full Court constituted a significant change in circumstances, indicating the arguable nature of the applicants' submissions and the constitutional importance of the matter. His Honour found that exceptional circumstances were demonstrated, not only by the referral to the Full Court but also by the extreme and prolonged custodial conditions to which the applicants were subjected, which were inconsistent with their status as unconvicted persons and fell short of the standards contemplated by section 53 of the Act.

The Court ordered that the hearing of the applications for special leave be expedited before the Full Court. Bail was admitted for the second applicant, Pasini, upon specified conditions, while the application for bail of the first applicant, Cabal, was refused. Costs were reserved.