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[2001] HCA 61
appellant. Leave to appeal granted. Appeal allowed. Order 2 made by Kirby J on 29 June 2001 set aside and replaced with an order dismissing the summons dated 28 May 2001. Mr Pasini was ordered to pay Mexico's...
2 cited instruments linked from this judgment.
The High Court set aside Mr Pasini's bail order. Although he had complied with bail conditions earlier, the Court held that his proposed challenge to the extradition eligibility determination did not have sufficiently strong grounds to justify bail after that determination had been upheld by the Federal Court and its Full Court. The Court did not decide whether he was a flight risk. The reasons describe the threshold as applying in the circumstances of this case and refer readers to the Court's reasons in the related Cabal matter for further discussion.
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1,863 words · generated 05/10/2026
The United Mexican States sought leave to appeal from an order made by Kirby J on 29 June 2001 granting Marco Pasini bail while his High Court special leave application was pending. The High Court heard the matter at the same time as a related matter involving Carlos Cabal, referred to as Matter No M74/2001. The reasons in this judgment are given by Gleeson CJ, McHugh and Gummow JJ.
The extradition process had begun with Mr Pasini's arrest on 27 November 1998 under a provisional arrest warrant issued pursuant to the Extradition Act 1988 (Cth). Mexico requested his extradition in January 1999 in respect of three offences. In December 1999, after a lengthy hearing, a Magistrate found him eligible for surrender to Mexico in relation to all three offences and committed him to prison pending surrender [3]-[4].
Mr Pasini sought Federal Court review. French J dismissed his application in August 2000 and confirmed the Magistrate's orders. Mr Pasini appealed. Gray J released him on bail on 20 December 2000 pending the Full Court hearing. The Full Court dismissed his appeal on 18 April 2001, after which he was again committed to prison. He filed a High Court special leave application on 1 May 2001 [4].
Kirby J granted bail pending that application on 29 June 2001 [5]. The High Court subsequently refused special leave. As a result, the bail order expired and Mr Pasini returned to prison [2]. The Court nevertheless decided Mexico's challenge to the original bail order: it granted leave, allowed the appeal, set aside order 2 made by Kirby J and dismissed Mr Pasini's bail summons. It also ordered Mr Pasini to pay Mexico's costs, including reserved costs, and provided for a certificate under the Federal Proceedings (Costs) Act 1981 (Cth).
The central reason was not a finding that Mr Pasini would abscond. The Court expressly said it was unnecessary to decide whether there was a real risk that he would flee. Even if there was no such risk, it held that the bail application could not succeed [8].
The Court focused instead on the procedural history and the strength of the proposed challenge. By the time the matter reached the High Court, a Magistrate had found Mr Pasini eligible for surrender and both a Federal Court judge and the Full Court had confirmed that determination [8]. The Court said that, in those circumstances, a person seeking bail needed to convince it there were “very strong grounds for success” both in the special leave application and in the ultimate appeal [8].
The Court then applied that threshold. Mr Pasini's special leave grounds were the same as Mr Cabal's. The judges described them as “not strong grounds – let alone very strong grounds” [8]. That assessment was sufficient to decide the bail question. The order granting bail was therefore set aside.
The Court also addressed two points about the setting of the case. First, Mr Pasini had a stronger claim for bail than Mr Cabal because he had complied with the conditions of the bail granted by Gray J and had not fled [7]. That conduct was evidence that he was no longer a flight risk, if he had ever been one. Second, the Court noted countervailing evidence: Mr Pasini had moved from Spain to Argentina and then the Dominican Republic while aware of Mexico's extradition efforts, and he and his wife had entered Australia using false names and Dominican Republic passports. They also possessed documents in false names [7]. The Court did not resolve the flight-risk question because its conclusion about the weakness of the appeal grounds independently determined the application [8].
Finally, the Court said the same errors that had affected the grant of bail to Mr Cabal affected Mr Pasini's bail order [6]. It referred to the reasons it had given in M74, but this judgment does not reproduce those reasons in full. The basis for the result that can be identified directly here is the very strong grounds threshold and the Court's assessment of Mr Pasini's grounds.
This judgment does not set out a comprehensive account of the law governing bail in extradition proceedings, nor does it reproduce the Court's full analysis in the related Cabal matter. Its holding should therefore be read as the Court expressed it: in the circumstances before it, where the extradition eligibility decision had been confirmed through the Federal Court process, the applicant needed very strong grounds for success in both the special leave application and the ultimate appeal to obtain bail [8].
The reasons do not state that this threshold applies to every bail application, whether in extradition proceedings or otherwise. They also do not identify a statutory section as the source of a general High Court power to grant bail. Although the catchwords refer to questions about the Extradition Act, the Constitution and the High Court's jurisdiction, the reasons reproduced here do not separately decide those questions.
The Court's treatment of flight risk is also limited. It recognises the relevance of Mr Pasini's compliance with earlier bail conditions and records facts potentially bearing on flight risk [7]. But it does not determine the risk, and it does not make a ruling that flight risk is irrelevant. Instead, it holds that the bail application failed on the appeal-strength ground even on the assumption that no real risk of flight existed [8].
The decision's stated disposition is specific to the procedural posture and evidence before the Court. It does not explain what evidential showing would qualify as “very strong” in another case. The reasons direct readers to the Court's decision in M74 for its broader discussion of the issues of principle, but the contents of that reasoning cannot be reconstructed from this judgment alone.
At [6], the Court says that the grant of bail to Mr Pasini was “vitiated by the same errors” as the grant of bail to Mr Cabal. In plain English, the Court considered that the reasoning problem it had identified in the related Cabal case was also present in Mr Pasini's case. The paragraph relies on the Court's reasons in M74 rather than restating them.
At [7], the Court says that Mr Pasini had “a stronger claim for bail than Mr Cabal” because he had complied with the conditions set by Gray J and had not fled. The Court treated this as evidence relevant to whether he remained a flight risk. It did not treat compliance as conclusive: the paragraph also records his movements between countries and his use of false identity documents when entering Australia.
At [8], the Court states that Mr Pasini needed to show “very strong grounds for success” in both stages of his proposed High Court challenge. In plain English, the fact that he had sought special leave was not enough. In the Court's view, the prospect of success had to be exceptionally strong at the leave stage and in the ultimate appeal, given that the surrender-eligibility determination had already been upheld in the Federal Court.
The same paragraph is important because it separates the strength of the proposed appeal from the risk of flight. The Court did not decide whether Mr Pasini would abscond. It reasoned that, even if there were no real flight risk, the application still failed because the grounds were not strong enough [8].
The judgment is most directly relevant to a bail application in an extradition proceeding where an applicant has been found eligible for surrender and that determination has been confirmed by both a Federal Court judge and the Full Court. In that setting, the Court required very strong grounds for success in both the pending special leave application and the ultimate appeal [8].
It also illustrates that evidence of compliance with previous bail conditions can be relevant to flight risk without deciding the bail application by itself. Mr Pasini's compliance supported an argument that he was not a flight risk, but it did not overcome the Court's assessment of the weakness of his proposed grounds [7]-[8].
The judgment does not establish that the same threshold necessarily applies where the extradition decision has not been confirmed on review, where there is no pending appeal, or where the applicant's proposed grounds are materially different. Nor does it specify how particular conditions, length of custody, detention conditions or other personal circumstances should be weighed. Those matters appear in the catchwords as issues raised in the litigation, but the reasons in this judgment do not make separate findings or announce rules about them.
The supplied judgment contains no account of later judicial treatment of this decision. It therefore does not establish whether later courts followed, distinguished, applied or limited the holding in other cases.
Within this judgment, the Court refers to two related Cabal decisions, a Federal Court decision concerning bail, and the Full Court decision dismissing Mr Pasini's appeal. It says that its reasoning in M74 explains why the earlier grant of bail to Mr Cabal was wrong, and that the same errors affected Mr Pasini's bail order [1]-[2], [6]. It also says that Mr Pasini's special leave grounds were the same as Mr Cabal's [8]. These are the Court's explanations of the relationship between the two matters, not evidence of later treatment of this judgment.
The judgment cites Cabal v United Mexican States (2001) 180 ALR 593 and Cabal v United Mexican States (No 2) (2001) 181 ALR 169 in its footnotes. It also refers to the Federal Court decisions reported as [2000] FCA 1892 and [2001] FCA 427 in the procedural history [4]. No broader precedent history can safely be supplied from the text provided.
The judgment leaves several matters unanswered in its own reasons. It does not define how a court should assess whether proposed grounds are “very strong” in a different case, or explain which considerations distinguish strong grounds from very strong grounds. The Court states that Mr Pasini's grounds fell short, but does not analyse each ground in this judgment [8].
The Court also does not decide whether Mr Pasini was a real flight risk. It records evidence on both sides of that question, including his compliance with bail and his earlier movements and use of false documents, then expressly leaves the issue unresolved [7]-[8]. Accordingly, the decision should not be presented as a finding that he was, or was not, likely to flee.
Further, although the catchwords identify issues about the source of the High Court's bail power and the meaning of “special circumstances”, the reasons reproduced here do not give a separate analysis of those subjects. They instead refer to the companion M74 decision. The judgment also does not determine how long custody or harsh detention conditions should affect a bail application, despite those topics appearing in the catchwords.
This is a source-grounded summary of the judgment, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
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
Leave to appeal granted, the draft notice of appeal to stand as the notice of appeal.
Appeal allowed.
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.
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.
CATCHWORDS
United Mexican States v Pasini
Criminal law – Practice and procedure – Bail – Whether High Court has power to grant bail – In what circumstances High Court will grant bail – What constitutes "special circumstances" – Whether special circumstances established where applicant subject to extradition determination, in custody for over 30 months and subject to extremely harsh conditions in detention – Whether risk of flight outweighs special circumstances.
Extradition – Bail – Whether High Court has power to grant bail pursuant to the Extradition Act 1988 (Cth) or pursuant to Constitution – What constitutes "special circumstances" for the purposes of granting bail in extradition proceedings – Rationale for refusing bail in extradition cases.
High Court of Australia – Practice and procedure – Bail – Whether High Court has power to grant bail pursuant to appellate or original jurisdiction – Proper form of order for admitting prisoner to bail – In what circumstances High Court will grant bail – Where applicant for bail subject to extradition determination and application for special leave to appeal still pending – What constitutes "special circumstances" – Whether special circumstances established by applicant in this extradition proceeding – Whether risk of flight outweighs special circumstances.
High Court of Australia – Significance of referring hearing of application for special leave to appeal to Full Court of High Court.
Words and phrases – "special circumstances".
Extradition Act 1988 (Cth), ss 15, 19, 21.
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 country1.
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 expired2. 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.
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 offences3.
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 heard4. On 18 April 2001, the Full Court of the Federal Court dismissed the appeal with the result that Mr Pasini was again committed to prison5. The application for special leave to appeal against the orders of the Full Court was filed in this Court on 1 May 2001.
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 him6, he had moved from Spain to Argentina and then to the Dominican Republic before coming to Australia. Furthermore, he and his wife entered Australia under false names with passports issued by the Dominican Republic. Mr Pasini and his wife also possessed Dominican Republic birth certificates and Republic of Uruguay identity cards in false names.
Cabal v United Mexican States (2001) 180 ALR 593; Cabal v United Mexican States (No 2) (2001) 181 ALR 169. ↩
Pasini v United Mexican States, transcript, 7 September 2001 at 58. ↩
Affidavit of Daniel Donato Caporale, sworn 29 May 2001, par 8. ↩
Cabal v United Mexican States [2000] FCA 1892. ↩
Cabal v United Mexican States [2001] FCA 427. ↩
Affidavit, sworn 25 May 2001, pars 28, 30. ↩
Affidavit, sworn 25 May 2001. ↩
Affidavit of Daniel Donato Caporale, sworn 29 May 2001, par 65. ↩
Affidavit of Daniel Donato Caporale, sworn 29 May 2001, par 65. ↩
United Mexican States
Pasini [2001] HCA 61;
(2001) 209 CLR 165
(2001) 183 ALR 671
(2001) 180 ALR 593
(2001) 181 ALR 169
Leave to appeal granted. Appeal allowed. Order 2 made by Kirby J on 29 June 2001 set aside and replaced with an order dismissing the summons dated 28 May 2001. Mr Pasini was ordered to pay Mexico's costs of the appeal and first-instance proceedings, including reserved costs, and to have a certificate under the Federal Proceedings (Costs) Act 1981 (Cth).
It is unnecessary to determine whether there was a real risk that, if granted bail by this Court, Mr Pasini would have fled the jurisdiction. Even if there was no real risk that he would have done so, his application for bail could not succeed. When the case reached this Court, a judge of the Federal Court and the Full Court of that Court had confirmed the decision of the Magistrate that he was eligible for surrender to Mexico. In those circumstances, if he were to be granted bail, Mr Pasini needed to convince the Court that there were very strong grounds for success for both his special leave application and his ultimate appeal. His application for special leave to appeal was based on the same grounds as those upon which Mr Cabal relied. They were not strong grounds – let alone very strong grounds. Because that is so, Mr Pasini was not entitled to bail.
Leave to appeal should be granted to Mexico and its appeal should be allowed with costs.