United Mexican States v Pasini - [2001] HCA 61

HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH AND GUMMOW JJ
UNITED MEXICAN STATES  APPLICANT
AND
MARCO PASINI (BERTRAN) & ORS  RESPONDENTS
United Mexican States v Pasini [2001] HCA 61
24 October 2001
M70/2001
ORDER
1.   Leave to appeal granted, the draft notice of appeal to stand as the notice of appeal.
2.   Appeal allowed.
3.   Set aside order 2 of the orders made by Kirby J on 29 June 2001 and in place thereof order that the summons dated 28 May 2001 be dismissed.
4. The first respondent to pay the costs of the appellant of the appeal and of the proceedings at first instance, including any reserved costs, and to have a certificate under the Federal Proceedings (Costs) Act 1981 (Cth).
On appeal from the High Court of Australia
Representation:
G T Pagone QC with K P Hanscombe and M M Gordon for the applicant (instructed by Director of Public Prosecutions (Commonwealth))
D Grace QC for the first respondent (instructed by Fernandez Canda Gerkens)
No appearance for the second respondent
D M J Bennett QC, Solicitor-General of the Commonwealth with 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.

GLEESON CJ, McHUGH AND GUMMOW JJ. This application for leave to appeal against an order made by Kirby J was heard concurrently with Matter No M74/2001 ("M74") which was also an application for leave to appeal against an order made by Kirby J. In M74, the first respondent was Mr Carlos Cabal Peniche. The orders made by Kirby J granted bail to Mr Cabal and Mr Pasini, both of whom had been committed to prison to await surrender to the United Mexican States (Mexico) in respect of offences alleged against the laws of that country[1].
[1]Cabal v United Mexican States (2001) 180 ALR 593; Cabal v United Mexican States (No 2) (2001) 181 ALR 169.
At the conclusion of argument in M74, the Court granted leave, allowed the appeal and set aside the order for bail. However, the Court reserved its decision in the case of Mr Pasini. Since reserving its decision, the Court has refused Mr Pasini's application for special leave to appeal with the result that the order granting him bail has expired[2]. He has been returned to prison to await surrender to Mexico. Although the order made by Kirby J no longer has any effect, Mexico should be given leave to appeal against that order, the appeal should be allowed, the order made by his Honour should be set aside and Mr Pasini's application for bail should be dismissed.
[2]Pasini v United Mexican States, transcript, 7 September 2001 at 58.
The factual background
On 27 November 1998, Mr Pasini was arrested pursuant to a provisional arrest warrant issued under the Extradition Act 1988 (Cth). He was taken into custody. In January 1999, Mexico made a request for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read United Mexican States v Pasini 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 61
Decision Date: 24 October 2001

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the United Mexican States against an order granting bail to Mr Pasini, who was subject to extradition proceedings. The dispute concerned the circumstances under which the High Court has the power to grant bail to an individual facing extradition, and whether those circumstances were met in Mr Pasini's case.

The legal issues before the Court were whether the High Court possessed the power to grant bail to an applicant subject to an extradition determination, either under the *Extradition Act 1988* (Cth) or the Constitution, and what constituted "special circumstances" justifying the grant of bail in such proceedings. The Court also had to consider whether the risk of flight outweighed any established special circumstances.

The Court reasoned that the grant of bail to Mr Pasini by a single judge was vitiated by the same errors of discretion that had occurred in a related case. While acknowledging that Mr Pasini presented a stronger case for bail than the applicant in the related case, particularly given his compliance with previous bail conditions, the Court noted significant evidence of a flight risk. This included Mr Pasini's movements between countries while aware of extradition proceedings and his and his wife's entry into Australia under false identities with forged documents. The Court concluded that the discretion to grant bail had not been properly exercised.

The High Court granted leave to appeal, allowed the appeal, set aside the order for bail made by Kirby J, and dismissed Mr Pasini's application for bail. The United Mexican States was ordered to pay Mr Pasini's costs of the appeal and the proceedings at first instance.

Orders

Orders of the court

1. Leave to appeal granted, the draft notice of appeal to stand as the notice of appeal.

2. Appeal allowed.

3. Set aside order 2 of the orders made by Kirby J on 29 June 2001 and in place thereof order that the summons dated 28 May 2001 be dismissed.

4. The first respondent to pay the costs of the appellant of the appeal and of the proceedings at first instance, including any reserved costs, and to have a certificate under the Federal Proceedings (Costs) Act 1981 (Cth).

Background

Background to the litigation

At the conclusion of argument in M74, the Court granted leave, allowed the appeal and set aside the order for bail. However, the Court reserved its decision in the case of Mr Pasini. Since reserving its decision, the Court has refused Mr Pasini's application for special leave to appeal with the result that the order granting him bail has expired[2]. He has been returned to prison to await surrender to Mexico. Although the order made by Kirby J no longer has any effect, Mexico should be given leave to appeal against that order, the appeal should be allowed, the order made by his Honour should be set aside and Mr Pasini's application for bail should be dismissed.[2]Pasini v United Mexican States, transcript, 7 September 2001 at 58.The factual background On 27 November 1998, Mr Pasini was arrested pursuant to a provisional arrest warrant issued under the Extradition Act 1988 (Cth). He was taken into custody. In January 1999, Mexico made a request for his extradition in respect of three offences[3].[3]Affidavit of Daniel Donato Caporale, sworn 29 May 2001, par 8. In December 1999, after a lengthy hearing, a Magistrate, the second respondent, determined that Mr Pasini was eligible for surrender to Mexico in respect of each of the three offences. She committed him to prison to await surrender to Mexico. Subsequently, Mr Pasini made an application to the Federal Court of Australia to review the determination. In August 2000, French J dismissed the application and confirmed the orders made by the Magistrate. Fourteen days later, Mr Pasini filed a Notice of Appeal against the decision of French J. On 20 December 2000, Gray J made an order that Mr Pasini be released on bail until his appeal was heard[4]. On 18 April 2001, the Full Court of the Federal Court dismissed the appeal with the result that Mr Pasini was again committed to prison[5]. The application for special leave to appeal against the orders of the Full Court was filed in this Court on 1 May 2001. [4]Cabal v United Mexican States [2000] FCA 1892.[5]Cabal v United Mexican States [2001] FCA 427. On 29 June 2001, Kirby J ordered that Mr Pasini be granted bail pending the hearing of his special leave application. In our judgment in M74, we referred to the important issues of principle concerning the grant of bail involved in that case. Since the present case, like that of M74, involves important questions of principle, leave to appeal must be granted to Mexico in this case as well as in M74. In M74, we gave our reasons why we thought that his Honour erred in exercising his discretion to grant bail to Mr Cabal. We also gave our reasons for concluding that the proper exercise of the discretion to grant bail required this Court to refuse Mr Cabal's application for bail. The grant of bail to Mr Pasini was vitiated by the same errors as occurred in the granting of bail to Mr Cabal. Because that is so, this Court had to determine whether Mr Pasini should have been given bail. Undoubtedly, Mr Pasini had a stronger claim for bail than Mr Cabal. From December 2000 until his appeal was dismissed in April 2001, Mr Pasini complied with the conditions of bail granted by Gray J. Proof that he had complied with his bail conditions and had not fled Australia was evidence that he was no longer a flight risk, if he ever had been one. On the other hand, his own evidence showed that, with knowledge that Mexico was threatening to extradite him[6], he had moved from Spain to Argentina and then to the Dominican Republic before coming to Australia[7]. Furthermore, he and his wife entered Australia under false names with passports issued by the Dominican Republic[8]. Mr Pasini and his wife also possessed Dominican Republic birth certificates and Republic of Uruguay identity cards in false names[9]. [6]Affidavit, sworn 25 May 2001, pars 28, 30.[7]Affidavit, sworn 25 May 2001.[8]Affidavit of Daniel Donato Caporale, sworn 29 May 2001, par 65.[9]Affidavit of Daniel Donato Caporale, sworn 29 May 2001, par 65.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HUGH AND GUMMOW JJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: HUGH AND GUMMOW JJ

Full text does not contain this section.