United Mexican States v Pasini & Ors M70/2001 [2001] HCATrans 332 (31 July 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M70 of 2001

B e t w e e n -

UNITED MEXICAN STATES

Applicant

and

MARCO PASINI (BERTRAN)

First Respondent

LISA HANNAN M

Second Respondent

ATTORNEY-GENERAL (COMMONWEALTH)

Third Respondent

Office of the Registry

Melbourne No M74 of 2001

B e t w e e n -

UNITED MEXICAN STATES

Applicant

and

CARLOS CABAL (PENICHE)

First Respondent

LISA HANNAN M

Second Respondent

ATTORNEY-GENERAL (COMMONWEALTH)

Third Respondent

Applications for leave to appeal

GLEESON CJ

McHUGH J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 31 JULY 2001 AT 10.19 AM

Copyright in the High Court of Australia

__________________

MR G.T. PAGONE, QC: If it please the Court, in both those matters I appear with DR K.P. HANSCOMBE and MS M.M. GORDON for the applicant. (instructed by the Director of Public Prosecutions (Commonwealth))

MR D. GRACE, QC: If the Court pleases, I appear in the matter of Pasini on behalf of Mr Pasini. (instructed by Fernandez Canda Gerkens)

MR G. GRIFFITH, QC: If the Court pleases, I appear with MS D.S. MORTIMER in the second matter for Mr Cabal. (instructed by Fernandez Canda Gerkens)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth: If the Court pleases, in both matters I appear with my learned friend, MR B.E. WALTERS, for the third respondent. (instructed by the Australian Government Solicitor)

GLEESON CJ: In both matters there is a certificate from the Deputy Registrar that she has been informed by the Deputy Chief Magistrate on behalf of Magistrate Lisa Hannan, the second respondent, that the second respondent will abide by the order of the Court. Now, what is the agreement that you have made about the allocation of time, Mr Pagone?

MR PAGONE: Your Honour, perhaps if I can hand up a supplementary note. Essentially it was that Mexico and the Commonwealth would have the first two hours. The next two hours would then be for our learned friends, leaving half hour reply. I think it is fair to say though that we are probably agreed that we do not think we will actually need to spend the entire day before the Court.

GLEESON CJ: Thank you, Mr Pagone. Yes.

MR PAGONE: If the Court pleases. These are two applications. In the case of Pasini there is an application for leave to appeal and we were reminded of your Honour's comment that we should be prepared to run the appeal at the same time. In relation to Mr Cabal there is also, of course, extant the question of the stay in addition. Your Honours, both these cases, so far as the leave for appeal is concerned, seek to appeal the orders made by Justice Kirby, in the case of both, to grant bail, although in the case of each they occurred on different days.

GLEESON CJ: Mr Pagone, there has been some difference in the custodial history of Mr Pasini, on the one hand, and Mr Cabal on the other.

MR PAGONE: That is so, your Honour.

GLEESON CJ: At some stage convenient to yourself could you summarise that for us?

MR PAGONE: Yes, your Honour. I will endeavour to get the dates summarised quickly, but if I could answer your Honour's question now, as it were: Mr Pasini was granted bail by a judge of the Federal Court in December and that was Justice Gray. The actual date though, 20 December. Mr Cabal has never been granted bail other than by Justice Kirby. Mr Pasini was granted bail by Justice Kirby on 28 June.

GLEESON CJ: At that time was he in custody?

MR PAGONE: At that time he was in custody, yes, your Honour.

GLEESON CJ: So the grant of bail had been revoked by some later decision?

MR PAGONE: On 18 April, your Honour, he went back. I understand that was just pursuant to the terms of the original order for bail, which was that he attend upon the delivery of judgment of the Federal Court, which occurred, and bail simply lapsed.

GLEESON CJ: So in practical effect his bail was revoked by a decision of the Full Federal Court on 18 April.

MR PAGONE: "Revoked" is probably not the correct word, your Honour. It terminated.

GLEESON CJ: Came to an end.

MR PAGONE: Came to an end, your Honour, yes.

GUMMOW J: On the substantive appeal being determined.

MR PAGONE: On the substantive appeal, yes, your Honour, that is correct. My learned junior tells me there was an application for a stay and that was not granted. Your Honours, the reasons for judgment of Justice Kirby need to be found in two places. The first is in the reasons that his Honour gave on 29 June and then subsequently on 19 July. If I can take your Honours, first of all, to what his Honour said on 19 June - - -

GLEESON CJ: May I interrupt you again. Justice Kirby told me this morning that the pamphlet of his judgments has just been revised in certain respects that are only concerned, I think, with footnotes, but at some stage it might be useful to get hold of the pamphlet version of his reasons for judgment.

MR PAGONE: Your Honour, do I understand by that that the pamphlet version that was previously available before today has been - is that what has been amended, that pamphlet version?

GLEESON CJ: No, I think he is talking about the pamphlet version of the second judgment, the second reasons for judgment.

GUMMOW J: Which was not in pamphlet, I think, last week. We do have the pamphlet of the first one, which is [2001] HCA 42.

MR PAGONE: Yes, you do, your Honour, and I was proposing to take your Honours to that first. Your Honours, our first proposition is that his Honour erred in the nature of the jurisdiction that was being exercised. If I can take your Honours to what his Honour said.

GUMMOW J: This is the first one?

MR PAGONE: In the first one, your Honour, yes, and particularly if I can perhaps begin at page 7. Your Honours will see a heading "The need to show exceptional circumstances" and what his Honour was contemplating there in paragraph 26 is:

Under the Act, the Court may not order the release on bail of a person, unless "there are special circumstances justifying such a course".

So what his Honour was referring to there was the provisions of the Act in respect of which there needs to be shown special circumstances before bail is granted. His Honour then under the next heading of "Avoiding segmented determinations" sets out the relevant principles that his Honour regarded as important in determining the ambit of the jurisdiction and then at page 8 says this:

Similarly, what might be regarded as "exceptional circumstances" warranting the grant of bail on certain stringent conditions might not be regarded as sufficiently "exceptional" if the view were propounded that the applicant should be set at liberty without terms and conditions at all. In truth, there is a composite set of ideas here. Complete segregation of them from each other is artificial. And whatever may be the requirements of the Act, having regard to its language and structure, the implied constitutional norm is not rigid.

It is the next bit, your Honours, that I wish to emphasise:

This Court has an implied jurisdiction and power to admit a person in custody to bail, where to do so is necessary in exceptional circumstances, to uphold the purposes of the Court's function in the proceedings, to defend the utility of those proceedings and thereby to contribute to the attainment of justice as the Constitution envisages.

GUMMOW J: But will not the admitting of the person in custody to bail be subsequent to, and in consequence of, I suppose, an order of this Court staying some order of a lower court? Is that not the starting point perhaps?

McHUGH J: It must be, must it not? I mean, this Court must have power to grant bail whenever there is an order the subject of an appeal. The reason for that is that every grant of power carries with it authority to do all that is necessary to effectuate the grant of power. Because that is so, the Court has authority to do all that is necessary to effectuate the grant of appellate jurisdiction conferred by section 73 of the Constitution. It, therefore, has power to stay orders, whether they be civil orders or criminal orders. If the Court did not have power to stay the order, it might in certain cases not able to achieve justice for an appellant or potential appellant.

It is for that reason that the Court has power to stay orders in criminal cases, whether it be an order of a sentence of death, as in Tait's Case, or an order of imprisonment, and to make the order of imprisonment more effective the Court has power to grant bail. The only question is whether the discretion should be exercised.

MR PAGONE: No, your Honour. One can be with your Honour up until the very last point and still say that the question still is by what legal measure that discretion is to be exercised? That is to say, when is it necessary? In what circumstances will the Court, as a matter of law, exercise such a discretion? What does it mean for there to be a necessity for this Court to exercise a discretion in circumstances such as an the extradition context that currently arises?

One, your Honour, could even accept as a broad statement the proposition that his Honour made at page 8 which I have read out. The question then becomes what does that mean in the context of the exercise, or purported exercise of discretion in the context of extradition? What we go on to say is that his Honour made somewhat of a leap thereafter in telling us what it is that his Honour contemplated by a need to defend the utility of those proceedings.

McHUGH J: I think it is a mistake to talk about utility of proceedings and I also think it is a mistake to talk about preserving the subject matter. What you are doing is staying an order to effectuate the grant of appellate jurisdiction. Otherwise the Court in exercising its appellate jurisdiction may do less than justice to the appellant, if it cannot put the appellant so far as is possible in the position that he or she should have been if successful. But that is the jurisdiction. That is the Court's authority to deal with it. Then it is a question whether in the exercise of the discretion it should exercise that jurisdiction.

The doctrine of the Court is, in the criminal sphere, that we do it only in the most exceptional circumstances. Why should that not be the case here? You take into account various aspects of the Extradition Act 1988 , what it is seeking to do; you weigh up the applicant's rights; you weigh up the rights of the government or the duties of the government; and you make a judgment.

MR PAGONE: Your Honour, we say if you get to that stage, we say that his Honour as a matter of law erred in the weighing up in the judgment process, but before one gets there one has to ask the question what is the legal measure by which his Honour ought to have embarked upon the question? I am not sure, your Honour, that it is accurate to say that it is a question of staying an order in these proceedings. That may be so in other contexts.

McHUGH J: But it must be. It must be. That is say if we have any jurisdiction at all. You cannot grant bail unless you stay the order that detains the person in custody. The relevant order here, I would have thought, would be the order of the Magistrate providing for the extradition of the appellant under which he goes into custody.

MR PAGONE: Your Honour, the warrant for the arrest, I do not understand our learned friends to have commenced the proceedings on that basis. What they were doing was seeking to invoke a different jurisdiction of the Court, that is to say a general jurisdiction to grant bail, simpliciter.

McHUGH J: Speaking for myself, I have real doubts as to whether there is a general jurisdiction to grant bail, and I said as much in Lim's Case, but it seems to me that there is a jurisdiction to grant bail as an incident of the authority to stay orders of the Court, whether they be orders for judgments or orders for imprisonment.

MR PAGONE: Your Honour, it is not clear that this Court does have that jurisdiction to stay an order in respect of proceedings that have certainly not been commenced on that basis. What our learned friends sought to do was to invoke the jurisdiction of the Court in proceedings which had been commenced for the purposes of seeking special leave to appeal. One can see that clearly enough, even from the heading of the application of M39. That is the application for special leave to appeal.

The way that the case has been put, understandably, by my learned friends is that as an incident of that application they can seek in the Court's inherent jurisdiction bail and we say, first of all, accepting your Honour's proposition, there is no general jurisdiction to grant bail in fact. In the context of extradition proceedings, we say, that jurisdiction, if there be one, is exceptionally narrow, not just exceptionally narrow in the sense that you must show special circumstances of the kind contemplated by the Extradition Act, but, rather, exceptional in the context and in the sense that you must show that it impinges upon the Court's jurisdiction to deal with its processes properly.

What I was attempting to do in relation to his Honour's judgment is show that his Honour simply did not address that question. His Honour did not ask, as the cases say that you do need to ask, "What is the subject matter of the proceeding that is being sought to be preserved?" Once you identify the subject matter of the proceeding, one then says, "Well, is it true to say that I need to grant bail for those purposes?" That is before one gets to the individual and special circumstances of Mr Cabal or Mr Pasini.

I accept that there may be debate and, as I have indicated to your Honour, we are happy to have that debate and we say the answer, when one gets to that stage of debate, is other than his Honour concluded. But before one gets there one needs to ask oneself, "Well, what exactly is this jurisdiction that is being exercised?".

GUMMOW J: To answer that one needs to know under what law this person is currently in custody. How is it that he is imprisoned.

MR PAGONE: He is imprisoned, your Honour, because a warrant was issued for his arrest sometime, I think, in November or December 1998 under that Act that your Honour has in front of you.

GUMMOW J: Yes, but then you get to section 15, do you not?

MR PAGONE: You do, your Honour, yes.

GUMMOW J: I mean, his Honour was staying something in order to let this person out.

MR PAGONE: No. Well, your Honour, his Honour does not purport to be saying - - -

GUMMOW J: I realise that. I realise that, but I am just trying to analyse in legal terms what was going on.

McHUGH J: Sufficient attention has not been given to that in some of these cases, except by Justice Gummow in Pelechowski where his Honour stayed the order of imprisonment. But in a number of these cases there has just been grants of bail.

MR PAGONE: Indeed, your Honour, and in some cases it may be that as an incident of some process before this Court bail may be granted and the criminal cases where that occurs, one can see readily enough how the Court has a jurisdiction unaffected by such factors as the Extradition Act, the presumption against bail in the Extradition Act, and so on.

GUMMOW J: But did not the Magistrate remand these two gentlemen in custody under section 15(2)?

MR PAGONE: She did, your Honour.

GUMMOW J: And that continued, did it?

MR PAGONE: It has, your Honour.

GUMMOW J: And nothing that happened in the Federal Court, apart from Justice Gray's order, disrupted that state of affairs, did it?

MR PAGONE: I am sorry, your Honour. I am told that what I said was wrong. It was under section 19(9) that - - -

GUMMOW J: Section 19(9). That is after the eligibility has been determined?

MR PAGONE: Yes, your Honour.

GUMMOW J: Yes, that is it, 19(9)(a).

MR PAGONE: But, your Honour, if that were right, then what our learned friends would need to do is to bring different proceedings seeking to stay that order and would need to show that this Court has jurisdiction to stay that order and would need to explain how that jurisdiction arises under this Act given as it does have, this Act that is, provision that seems to confine the Court's ability to grant bail only to circumstances where an appeal has been instituted, special leave having been granted, and there being a clear presumption against the grant of bail.

So that in those circumstances we would end up with an argument not dissimilar from the one that we are having now, namely that as a matter of construction of the terms of the Act the conclusion to be reached about the Court's ability to grant bail are exceptionally narrow and exceptionally narrow not in the sense that special circumstances need be shown, special circumstances within the meaning of section 21, but, rather, that it needs to be essential for the purposes of effectuating or perfecting the jurisdiction of the Court, because otherwise there would be an assertion of power or jurisdiction on the part of the Court which exceeds that which the Parliament intended in this context under that legislation.

McHUGH J: Section 21 may be an additional grant of power to the Court, but neither section 21 appears to intend to cut down the Court's constitutional power nor could the Parliament do it. If Parliament said the High Court cannot grant bail, then at the moment I would think that order would be unconstitutional.

MR PAGONE: Your Honour, I was not putting it like that.

McHUGH J: No.

MR PAGONE: What I was putting to your Honour was somewhat differently, namely that if one has a general proposition about the inherent power unaffected by the statute, then one needs to debate it at that level and we would say that the statute is, indeed, relevant to the construction of the Court's power, but - that was the primary basis upon which we were proceeding today. If, however, the power is sought to be exercised as an adjunct of the statutory provisions, that is to say, what power does the Court have because this statute exists and this statute provides for certain provisions and this statute provides for the remand on certain terms, then the terms of the statute do need to be taken into account in the Court construing the extent of the power that it does have.

GLEESON CJ: Mr Pagone, so that we may understand what you mean by the concept of necessity in the context of extradition, could you give an example of a case in which, in the exercise of its inherent jurisdiction, it would be appropriate for the Court to grant bail?

MR PAGONE: Your Honour, I suppose an example might be in circumstances where the person is about to be sent back, so that if bail were not granted or a stay were not granted of some kind, if some process did not issue in the Court, the applicant might not be able to bring the proceedings.

GLEESON CJ: I could understand that that would found an injunction to restrain some executive action, but when would bail ever be possible on your understanding of necessity?

MR PAGONE: Facts would need to be found, your Honour, that would show that the bail were necessary in order for the proceeding to be instituted in some way or to be prosecuted in some way, so that the facts would need to be found to show that but for the man being able to be out of custody, the Court's processes would be adversely hindered.

GLEESON CJ: Can you give an example?

MR PAGONE: Of facts, your Honour?

GLEESON CJ: Would an example be an urgent need to seek medical treatment that was unavailable?

MR PAGONE: Yes, your Honour. Yes, indeed, your Honour, that would be. What I was going to say about the difficulty of coming up with examples is that one were not uncomfortable about the fact that there are difficulties in finding examples of when bail should be granted.

GLEESON CJ: I just wondered whether your concept of necessity really is so narrow as to extend only to keeping him alive.

MR PAGONE: Your Honour, medical necessity might not just be alive; it might also be in order to ensure other kind of safety to the person to ensure that they can proceed in a sensible kind of way. But, your Honour, in the case of this jurisdiction the Court and the number of Justices that have expressed themselves in language that is very narrow and not surprisingly in the context of extradition. So that what I am putting to the Court is not a revolutionary invention thought about in chambers. It is no more than what a number of Justices have said when they have considered this very question.

Your Honours, may I perhaps take you to some of those passages, beginning, if I may, first with a case that in a sense might seem not to be in point. Your Honour, what we can do is hand up a bundle of cases, if that would be of some assistance.

GLEESON CJ: Thank you.

MR PAGONE: Your Honours, the first case I would like to take the Court to very quickly is the case of Beljajev, a case which concerned a stay of proceedings or an application for a stay, because it is instructive in terms of what the Court thought, or at least Justice Brennan thought was the appropriate procedure. Your Honours will see at page 30, about halfway down the page, that his Honour says:

The jurisdiction of this Court to make an order either preserving the status quo pending the hearing of an application for special leave to appeal or to grant bail pending the hearing of such an application - - -

GUMMOW J: But the whole case, as it were, was about bail itself, was it not? The special leave, once it got here, would be on a bail question.

MR PAGONE: Yes, your Honour, but what his Honour does say there is that what is essential is that one needs to identify the subject matter. Your Honour will see at page 31 after the quote, after referring to Narain:

And the question there, of course, was whether or not the jurisdiction should be exercised. That case illustrates the necessity to identify the subject matter of the litigation in order to determine whether a refusal of a stay order will render futile the proceedings in this Court and will prevent a successful appellant from being restored substantially to his former position.

In the present case, if no order is made, will the applicant's right to seek special leave to appeal and, if granted, to appeal, be rendered futile if the appellant remains in custody in consequence of the order made by Marks J? I cannot think that it will. It is imperative that the jurisdiction to grant a stay be recognized as extraordinary and that applications seeking to invoke that jurisdiction are not made simply in order to secure the intervention of this Court in the preservation of a status quo.

And after citing some passages in the case of Edelsten, over the page, at 32, immediately after the quote:

The jurisdiction of this Court is not fitted to the supervision of interlocutory processes of a criminal trial. It is not therefore necessary for me to consider the strength of the application for special leave which is now pending in this Court. All that is necessary for me to determine is whether the applicant's right to seek special leave to appeal and, if granted, to appeal, would be rendered futile if the appellant remains in custody in consequence of the order made by Marks J.

GLEESON CJ: I would just like to understand a little better the second sentence in that paragraph. That was related to the history of the proceedings to date; is that right?

MR PAGONE: That is so, your Honour, yes.

GLEESON CJ: As a general proposition, is it usually necessary to consider the strength of the application for special leave?

MR PAGONE: As a general proposition, your Honour, when the Court has an appeal?

GLEESON CJ: Yes.

MR PAGONE: That is a relevant consideration at times, your Honour, yes.

GLEESON CJ: That is a relevant consideration?

MR PAGONE: Yes, your Honour.

GLEESON CJ: Is it a relevant consideration in a case such as the present?

MR PAGONE: Your Honour, we would say that it is not, but if it is taken into account, it goes the other way.

GLEESON CJ: Was it taken into account by Justice Kirby?

MR PAGONE: I believe not, your Honour. I am not aware of Justice Kirby saying anywhere that there is strength in the application for special leave, although he does say that the fact of special leave having been granted is a relevant consideration.

GUMMOW J: Or, for this case, not granted but deferred.

MR PAGONE: Referred in, yes, your Honour.

GUMMOW J: Or deferred - - -

MR PAGONE: Deferred in, yes.

GUMMOW J: - - - by reason of a reference in.

MR PAGONE: He certainly does say that it is - just so that I make my answer to your Honour clear. His Honour I do not think considered the strengths of the application for special leave in deciding whether to grant bail.

GLEESON CJ: What I want to ask you is whether that was a relevant consideration.

MR PAGONE: And I think I have answered that question. We would say it is not relevant?

McHUGH J: Why not? I would have thought it should be in the forefront of the case. Supposing you come to the view that the special leave application has no prospect of success.

MR PAGONE: Your Honour, that is what we say.

McHUGH J: Yes, I know. Suppose you do. Why would you grant bail? I mean, how could that be effectuating the grant of appellate jurisdiction?

MR PAGONE: Your Honour, I concede, if I may say respectfully so, that the commonsense approach to that as a matter of practical resolution, but as a matter of legal analysis of what the Court's jurisdiction is, it is, as it were, one can assume that there is a process to be undertaken, that is to say an application to be made and argued. In principle the question is whether that jurisdiction should be exercised other than to preserve the ability of the litigant to make whatever argument the litigant wishes to make. So that our first proposition is simply to say, no, the strength of the argument is not relevant because otherwise that converts the application of inherent jurisdiction into the substantive merits.

McHUGH J: Well, you keep referring to inherent jurisdiction, and I know Justice Mason did in Zoeller's Case and others have, but I think Justice Kirby's criticism of the use of the term "inherent" is probably right. If you are talking about our jurisdiction, it is part of the express grant of jurisdiction. It is an incident in the conferral of the grant of authority under section 73 of the Constitution. That is the say, the power to order a stay - it is not inherent in the sense that that term is being used in talking about the inherent jurisdiction of a court such as the Supreme Court of Victoria or the Supreme Court of New South Wales. That is a very different kind of jurisdiction.

MR PAGONE: Your Honour, one can accept that proposition and not, as it were, be affected in one's argument because in a sense what his Honour says and what your Honour accepts is that the foundation for the jurisdiction is to be shown in the Constitution and that, with respect, is plainly enough right.

McHUGH J: Yes.

MR PAGONE: The use of the word "inherent" is a useful word because it focuses attention upon what is it that we are exercising. When your Honour accepts, as I think your Honour does accept, that there is no general jurisdiction to grant bail, one is saying that if that is so then the jurisdiction that we are exercising here has to be, as it were, inferred from, inhered to or applied from something. The word "inherent" is a useful way of exercising the mind to focus upon that question so that, with respect, that argument, we would say, gets not very far.

Now, your Honours, I do not propose to take your Honours to each of the cases at great length that have dealt with this question because the ones we referred to in the context of extradition all seem to come up with the same extremely restricted notion of the Court's jurisdiction. If I may take your Honours - - -

GUMMOW J: Now, having suffered under these constraints myself, a number of these decisions were not reserved and were dealt with under time constraints. All I am saying is there has not been a great deal of full argument on these subjects, it seems to me, in these single Justice matters, from my experience anyway.

MR PAGONE: Your Honour, it is true that reserving judgments can often be very helpful. By the same token, judgments expressing what is thought to be obviously the right answer are no less authoritative for what they say and what we are putting to your Honours is that, whether reserved or otherwise, what the Justices have said is correct and correct for good reason.

The focal point then for us becomes, your Honours, that when his Honour was asking the question about jurisdiction, "Here I am as a Justice of the Court. What is this jurisdiction that I am exercising?", his Honour should not have asked himself the same question as under the Extradition Act. The question is not, are there special circumstances as would grant bail under that provision. The first question is, are there special circumstances as would justify my invoking the jurisdiction to then embark upon an inquiry into whether bail should be granted?

They are two quite separate questions and not aridly so, because the Court, in the case of extradition at any rate, needs to be, and has expressed itself as needing to be, extremely cautious about the ambit of the jurisdiction, the ambit of the cases that come before it and the ambit of the occasions when it will permit a consideration of whether he ought to take the next step and say, "I am satisfied now that there is something affecting our process. There is something affecting the Court's authority, the Court's ability to do what it is supposed to do as a court. The next question is should I now grant bail?" Two separate questions, we say, and we say - - -

McHUGH J: That argument overlooks one factor. Those arguments may be appropriate in some classes of case that come before the Court, but one reason for granting bail and staying the order is to put, so far as possible, the applicant in the position that he would have been if his rights were maintained. Now, I know that Justice Brennan has said more than once that it has nothing to do with the status quo. For myself, that is an open question.

MR PAGONE: Well, your Honour, first of all we would say that his Honour was right, but having got over that hurdle, assume it is an open question. The question then becomes, what relevantly is the status quo here?

McHUGH J: Exactly, and one has to bear in mind also the right of your clients in this particular case or the Crown in another case. It is a serious step to interfere with the due administration of criminal justice, to let somebody out of prison when there is a sentence in place on that particular person. That is the other side of the coin and that is why the doctrine of the Court is it is only in a very exceptional or, I think I have said, most exceptional circumstances that the Court will grant bail.

MR PAGONE: But, your Honour, with respect, even in the circumstance that the relevant test is a test about status quo, that is still a test - - -

McHUGH J: That is one of the factors.

MR PAGONE: But, your Honour, that is still a factor relevant to jurisdiction being invoked, we would say, not the question of whether the bail should be granted and in relation to the legal test about the status quo, what one has here is that the man is lawfully in custody. There are decisions against him in a sense that there has been a decision by the Magistrate under section 19. Then an appeal to the Federal Court. The Federal Court decision has failed. The status quo relevantly is for the man to stay there, we would say, and the status quo - - -

GUMMOW J: The status quo is he is awaiting surrender under section 22.

MR PAGONE: That is right, your Honour. In the context of a legislation where there is a presumption against bail, that in those circumstances if the test of enlivening jurisdiction is the test of status quo, he still does not succeed beyond that.

McHUGH J: Yes. Status quo was not the most appropriate expression for me to use. What I really had in mind is looking at it from the point of view of the applicant concerning his liberty. It seems to me, at the moment, that the reason the Court has this authority to stay proceedings and grant bail is because otherwise a successful applicant will be deprived of his strict legal rights. That is what gives us the jurisdiction. Whether we should, as a matter of discretion, exercise that jurisdiction is another question altogether and, as I have said in the past, to get the Court to exercise the jurisdiction, notwithstanding its basis, the circumstances are going to be most exceptional or very exceptional.

MR PAGONE: Your Honour, with respect, we would agree with that but, if I may say so, with respect, use of expressions such as "a person's liberty", whilst they make some powerful sense in the context of somebody other than in the extradition process, here one has to mould those concepts by reference to the fact that we have a man who is a fugitive in the extradition process with all of the constraints that the extradition process involves, presumptions against the individual, both so far as innocence is concerned, in effect, practical effect, and also so far as bail is concerned, that in those circumstances as a matter of the Court's power, before one gets to the question of, "Let's look at the circumstances of the man", the Court's power is much narrower than it would otherwise be in the context of another individual faced with a different kind of charge with different kinds of presumptions.

So the first step, your Honours, no matter what way one looks at it is that one has to ask the question, "What is this jurisdiction of the Court? What are its ambits? By what legal measures does a Justice of the Court decide whether to invoke the inquiry?" before one then gets to the inquiry and say, "Well, am I satisfied now that this man ought to be released on bail, all things considered?".

GLEESON CJ: May I press you again, if I may, on this question of the strength of the application? I am looking at the case of Zoeller v Federal Republic of Germany which is behind tab 7 in the bundle you have just handed up and I am looking at a passage on page 139 in the first complete paragraph in the right-hand column.

MR PAGONE: What has occurred, your Honour, is that I have a different report from the report that your Honour has.

GLEESON CJ: It is the third-last paragraph in the judgment.

MR PAGONE: Yes, beginning with "However"?

GLEESON CJ: No, "What is of importance". Do you see that?

MR PAGONE: Yes, I do, your Honour.

GLEESON CJ: Well, in your submission, are the things that Chief Justice Mason said were of importance important?

MR PAGONE: Yes, your Honour, they were important.

GLEESON CJ: They seem to include an evaluation of the merits of the application for special leave.

MR PAGONE: Your Honour, they do.

GUMMOW J: At least to the level of saying whether one has a confident impression one way.

MR PAGONE: And, your Honour, the question may be a question about at what stage does one take that into account. The submission I was attempting to make was that that is a matter that one may take into account. Perhaps, the jurisdiction having been invoked there is a question about whether it ought to be exercised; bail should be granted.

GLEESON CJ: At some stage are you going to say something to us about the subject matter of the application for special leave? You should not assume that I understand what it is.

MR PAGONE: Your Honour, I will say something - - -

GLEESON CJ: In any but the most general way.

MR PAGONE: Your Honour, I am tempted to say that it is not clear whether I would have any greater knowledge other than the most general kind of way but I will be tempted to say something about that in a moment.

GUMMOW J: There is a 78B notice now which encapsulates it, is there not, which we have?

MR PAGONE: There is, your Honour, and there is also an amended application. Can I come back to that in a moment, your Honour, at least to complete those passages in the earlier decisions to which we would refer? I have mentioned Beljajev. May I just mention very quickly the decisions in Robinson, which is behind tab 6? It is a decision of Justice Gaudron and your Honour will see at 519, the second column:

Because the jurisdiction which is invoked is that which is inherent and which exists to serve the ends of justice and to perfect the administration of justice, the circumstances which might properly be described as exceptional and sufficiently exceptional as to justify the grant of bail pending appeal must, in my view, relate to the proceedings to be conducted and their relationship with the sentence being served.

Then, your Honours, the case of Parsons, which is tab 5.

GUMMOW J: I am not sure, by the way, that in all these cases these Justices understood that they were construing what flows from section 73 of the Constitution, which is what you are saying they were doing.

MR PAGONE: Your Honour, Justices sometimes express themselves in a shorthand way and it is not surprising, with respect, that they should do so because to footnote every step in the argument, bearing in mind that one is speaking to a community sufficiently versed in these principles, might be thought to be unnecessary.

GUMMOW J: Well, I would blink twice before sitting as a single Judge in a hurry if I delivered a decision which I thought was restricting of the operation of what flows out of section 73. I cannot imagine anything more fundamental than a decision of that nature. That is why we are here today.

MR PAGONE: Yes, your Honour, but it is a restriction, we would say, here, that is well made and correctly made. In any event, if I can, at least, just indicate the bits of the judgments before I develop that point further. Justice Hayne in Parsons, which is tab 5, your Honours will see at paragraph [3] his Honour plainly regarded the special leave as having been a relevant matter. At the bottom of that page his Honour quotes from what her Honour Justice Gaudron said and then over the page, after setting out that passage:

In this case, it is plain that a significant portion of the non-parole period imposed on this applicant will have been served by the time the appeal comes for hearing and, if judgment in the appeal is reserved, still further time may elapse before the appeal is disposed of. Nevertheless, there would remain the balance of the sentence, namely the head sentence that was imposed on him, which would still require service, albeit if he remains of good behaviour, most likely service at liberty.

So it was perhaps an extreme set of facts. And his Honour said:

In my view, exceptional circumstances are not demonstrated by the facts that I have described. I accept for the purposes of the present argument that the applicant would be a good risk if admitted to bail but that is a question which would need to be addressed only if exceptional circumstances otherwise had been demonstrated.

Now, your Honours, I partly take the Court to this to indicate the approach of the Court. Narain has been mentioned. That is behind tab 4. I do not need to take the Court to that at any length.

GLEESON CJ: To go back to Zoeller, Chief Justice Mason appears to have implied some reservations about the completeness of what Justice Brennan said. If you look at the bottom of page 138 in the Australian Law Journal Report in the paragraph that you mentioned earlier beginning with the word "However", he had mentioned that Justice Brennan said in an extradition case you can only grant bail pending an application for special leave where to do so is necessary to save the application for special leave from futility. Chief Justice Mason said it was not necessary for him to base his decision on that and he then gave an example of a case where the jurisdiction would be exercisable that I have a little difficulty relating to your concept of necessity.

MR PAGONE: Your Honour, our submission is that there needs to be clearly identified the jurisdiction which is being exercised before one asks oneself the question about whether the facts do or do not justify a successful order. What the cases say is that the function of the Court be exercised, whether directly through the Constitution or by reference to some inherent notion, is that it must be an adjunct to the Court's process. One must ask oneself the question, in what way does the Court need to do this in order to effectuate the Court's processes and we would say, with respect, that that is the first question that needs to be asked and that his Honour did not ask that question. In the passage at page 8, to which I have referred, one seems to find that his Honour was asking himself something like it but when his Honour goes on in the next paragraph to identify the purposes of justice he expresses himself much more broadly so that it is jurisdiction at large.

GLEESON CJ: But the relevant Court process is an application for special leave to appeal.

MR PAGONE: Correct, your Honour.

GLEESON CJ: Against a decision of the Federal Court upholding the Magistrate's determination. Is that right?

MR PAGONE: That is right, your Honour.

GLEESON CJ: Well, apart from keeping the applicant for special leave alive and in sufficiently good health to instruct his lawyers, what would fall within your concept of necessity and how would you relate that to the process of reasoning of Chief Justice Mason in Zoeller?

MR PAGONE: Your Honour, I think that all I can do is refer to general principles, that is to say that the gateway to this jurisdiction, unless it be a jurisdiction at large, must be something that is ancillary to the processes of the Court. Can one think of other examples of preserving the life of the subject matter? I suppose one can. One could think of examples, I suppose, of circumstances where the requesting country has indicated something that might mean that either the process is likely to fall down or the penalty imposed, or the burden imposed upon the individual, is manifestly disproportionate. I do not know.

The first point is, your Honour, a simple one, that the jurisdiction is not a jurisdiction at large and the Court, with respect, ought not to affirm a principle that its jurisdiction is unconfined and unrestricted to the subject matter in the proceedings.

GLEESON CJ: The ground of the application for special leave to appeal, as I understand it, has nothing to do with the discretionary decision of the Magistrate that was upheld by the Federal Court.

MR PAGONE: Well, I would not say nothing to do, your Honour.

GLEESON CJ: I thought it concerned the validity of some provisions of the Extradition Act.

MR PAGONE: It does, your Honour. Yes, that is right, your Honour.

GLEESON CJ: So what is in issue or what will be in issue in the application for special leave to appeal will not be the question whether the Magistrate correctly applied the provisions of the Extradition Act. What will be in issue is whether those provisions were valid.

MR PAGONE: That is my understanding, your Honour, and it seems to be put in two ways, that invalidity is either because the process involves the vesting of judicial power in an administrative body or vice versa. What was said in the application for special leave on behalf of Mexico at the time was that either way, either the prospects of success are remote or even if successful will not produce a consequence favourable to the applicant because, unless the provisions cannot be severed, then the decision stands.

GLEESON CJ: Does it follow that what I might call the merits of the decision of the Magistrate or the determination of the Magistrate and the merits of the decision of the Federal Court to uphold the Magistrate's determination are not called in question in the application for special leave to appeal?

MR PAGONE: Your Honour, that is my understanding.

GLEESON CJ: If that be correct, what would be the relevance of that?

MR PAGONE: Your Honour, to the applications before the Court at the moment, the relevance can really only be that of whether there is going to be any point in the orders that our learned friends seek to be made now.

GLEESON CJ: I wondered whether you were going to make a submission that made it additionally incongruous to embark in this Court at this stage upon a reconsideration of those merits.

MR PAGONE: Your Honour, we do say that.

GUMMOW J: Are we going to get off jurisdiction?

MR PAGONE: Yes, your Honour. Your Honour, we say that if one asks oneself what are the special circumstances, what his Honour did is to consider those special circumstances at pages 12 to 13 primarily. Your Honour will see at page 12 a heading "Conclusion: exceptional circumstances" and his Honour says:

in my view, "exceptional circumstances" have been established to warrant the provision of bail to each of the applicants. Critical to this conclusion is the action taken on 22 June 2001 to refer the proceedings into the Full Court. Also highly relevant are the extreme conditions in which the applicants are being detained and the evidence of the understandable deterioration in the psychological conditions of each of them in consequence of their situation and their prolonged isolation from their families.

GLEESON CJ: Now, where do we find his Honour elaborating his reasoning about this critical matter of the action taken on 22 June 2001?

MR PAGONE: Your Honour, unless I am mistaken, that is it. I appear to be mistaken. Yes, that is correct, 35 has some reference to the grant of special leave.

McHUGH J: His Honour does not seem to have given any consideration whatever to the prospects of the special leave application being granted. He seemed to have thought it was sufficient in itself. In fact, he may have thought it was the exceptional circumstance that on 22 June the matter was referred into the Full Court.

MR PAGONE: Your Honour, that is why I answered the way I did before.

MR GRACE: Your Honours, it is in paragraph 36.

MR PAGONE: Your Honour, I do not think that alters the substance of what your Honour said and what I answered before and what I answered again a moment ago. That is to say his Honour did not consider the merits of the proceeding in the special leave application as we would say, quite rightly, he ought not to have.

GLEESON CJ: Say that again.

MR PAGONE: I withdraw that, your Honour. I will come to the question about our learned friend's application in a moment separately. May I go back to this question of special circumstances? I was on pages 12 and 13. His Honour identified what I had indicated at page 12. On page 13 in the first paragraph he says that:

The particular problem for the custody of the applicants arises from the -

circumstances -

in the State of Victoria -

In paragraph 42:

each of the applicants was entitled to be treated as a person of good character.

We say that is wrong, but put that to one side. The severity of the "custodial regime". Then another complaint about the state of imprisonment in Victoria. Then there is reference to "international" obligations and he says at the bottom, the fourth-last line on that page:

However, to subject the applicants for so many months to such conditions is undoubtedly exceptional. It is so by ordinary Australian custodial standards and by the standards which the Parliament clearly contemplated when it enacted the ameliorating instruction of s53 of the Act.

I pause there for a moment, your Honours, to say that that was not the view reached in respect of that matter by the Federal Court.

GUMMOW J: I am sorry. Whereabouts, Mr Pagone?

MR PAGONE: The passage that I have just read, your Honour, about paragraph 45.

GLEESON CJ: Paragraph 45.

GUMMOW J: Thank you.

MR PAGONE: Then, there are, in the next two paragraphs, if I may put it without meaning to be disrespectful, broad statements of principle. What one finds, your Honour, there is there is no reference to the fact that the Court does not have general jurisdiction to grant bail. His Honour did not consider the presumption against bail found in the Act. His Honour did not consider the fact that those provisions against bail were relatively recently enacted. The provision, as I think appears in a footnote to his Honour, was enacted in 1990 and I will turn up the footnote in a minute. It is footnote 8. So it is not as though it is something that has been done lightly. Indeed, the history of the provision is that it was first provided for in 1989 and then amended to its present form in 1990 so it is a deliberate matter that has been given consideration.

GLEESON CJ: In the reasons for judgment of Chief Justice Mason in Zoeller, he said it was important that the Magistrate's determination, adverse to the applicant, had been upheld by the Federal Court. Where do we find Justice Kirby dealing with the significance of that consideration in this case?

MR PAGONE: Your Honour, I was about to say, and in this part of the decision one does not find reference to that fact.

GLEESON CJ: Is that quite right? When I read the judgments I thought that his Honour did deal with what I inferred was an argument that had been put to him about that.

MR PAGONE: Your Honour, an argument was put to him about that and his Honour does recount that fact at the beginning of his decisions under the course of the proceedings. But where his Honour explains his reasons for deciding that there are special circumstances, it is plain, we would say, that his Honour did not regard those facts as being determinative or relevant.

GLEESON CJ: Can you show me the part of the reasons for judgment that deal with that argument or refer to that argument?

MR PAGONE: Your Honour, I will come to the argument, if I can find it, in a moment. Paragraph 3 is where there is a reference of the fact and there is a heading - - -

MR GRACE: Your Honours, if I can assist? It is page 12.7.

GLEESON CJ: Thank you, Mr Grace.

MR PAGONE: Your Honours will see on page 11 a heading, "The submissions of the principal respondent". That is Mexico. The part that my learned friend, Mr Grace, refers to is really about protection - - -

GUMMOW J: That is a different point, is it not?

MR PAGONE: Yes, it is beside the point, your Honour. So, what your Honours finds is that there is no - - -

GLEESON CJ: I thought it was in paragraph 34.

GUMMOW J: That is the previous bail history.

MR PAGONE: Yes, your Honour, with respect, Justice Gummow is quite right. I read that as being relevant to the previous bail applications. In fact, with respect, your Honour the Chief Justice, there can be no doubt that what his Honour was saying there was, "There had been previous bail applications but I cannot really have regard to what they said, I have to decide myself".

GUMMOW J: Which is a contrary view, to some extent, to what had been said inside the Federal Court in the course of the sequential bail applications.

MR PAGONE: That is, partly, your Honour, because, so far as the Act is concerned, you have to show special circumstances and that is a very particular meaning. The way his Honour has construed special circumstances, admittedly, for jurisdiction and then thereafter, is extremely wide and purports to give to the Court a jurisdiction that, so far as this Court is concerned, makes the statutory jurisdiction somewhat pointless because it is unconfined by the constraints that one finds in the special circumstances of the jurisdiction under the Act. Your Honours, so as not to encroach unnecessarily on the agreement of time that the parties have reached, may I just say a couple of general things?

So far as that part of it is concerned, your Honours, we would say that what is fundamental to his Honour's error, as a matter of law, is that he had not taken into account those matters that we set out and which we have set out in our outline. I think it is paragraph 9, or thereabouts. Yes, paragraph 9, point (1) to (5). Your Honours, there is then the question of whether his Honour was right to find special circumstances in the fact. About that, we simply say that they are not special circumstances that would liven the grant of bail, that it is accepted that life in prison is not comfortable, but that there can be nothing, and has been nothing shown, that either gentleman have been treated in any way that takes them out of, as it were, the ordinary class of person in such conditions.

GLEESON CJ: Well, the reason Mr Cabal is in custody in Australia at the moment is because he has taken unsuccessful legal proceedings to challenge the Magistrate's determination. If he had not done that, he would be back in Mexico now.

MR PAGONE: That is true, yes.

GLEESON CJ: He now desires to continue in this Court his challenge to the Magistrate's determination but on a new ground.

MR PAGONE: That is right, your Honour.

GLEESON CJ: That might give rise to a question whether one ought to, at least on a prima facie basis, seek to appraise the merits of the new ground.

MR PAGONE: Yes. I am reminded, your Honour, that at least some of the ground was the subject of argument in the Full Federal Court and unsuccessfully pressed in the Full Federal Court. So far as the ground being new or otherwise, it is not irrelevant to note that there was a draft notice of appeal which I think originally had two grounds. The second ground seems to have transmogrified entirely into three new grounds.

GUMMOW J: Perhaps we had better look at them.

MR PAGONE: Does your Honour have those - - -

GUMMOW J: Yes.

MR GRIFFITH: They are annexed to our submissions.

MR PAGONE: Your Honours, if I may attempt to summarise the arguments as we apprehend them, they are that either the legislation confers the admissible administrative power upon the Federal Court by section 21 or that there is an impermissible interference with the judicial power by a restriction in the way in which the Court is able to deal with applications before them. Your Honours, in relation to the first point, we say that there is simply no conferral of administrative power in the Federal Court. The fact that section 21 which confers jurisdiction on the Federal Court to consider appeals may be, in some way, limited in what may be the matter of their consideration, has been subject to consideration in a number of cases in the Court, and upheld. Even if the applicants are right in respect of that, the effect would be that there might be set an invalid decision of the Court but - - -

GUMMOW J: I think order 6 - looking at the draft notice of appeal, paragraph (b) of the orders sought is a declaration of the Extradition Act is not a valid law of the Commonwealth. That is new, is it not, in the sense that it was not in the Federal Court?

MR PAGONE: I am not sure, your Honour.

GUMMOW J: Perhaps that can be checked.

MR PAGONE: Your Honour, we think that is right. But, in any event, your Honour, it needs to be as clear as that and what we say is, your Honour, that, at best, their argument would bring down the Court's decision but leave in tact the Magistrate Court's decision. It would not help the applicant at all. So that, in order for our learned friends to make good the argument - I mean, the short point, was it were, your Honours, is this. They need to be able to show both that their constitutional arguments have some merit and, secondly, that it would produce the consequence that the Act, as a whole, collapses, because if the orders of the Federal Court and the decision of the Federal Court and that process can be severed, then that would leave standing the decision of the Magistrate.

GLEESON CJ: Is there anything standing between Mr Cabal and his return to Mexico except the proposition that the Extradition Act is invalid in its entirety?

MR PAGONE: Your Honour, yes. There needs to be a determination by the Minister under section 22 of the Act.

GUMMOW J: There is no more judicial activity except that there may be then some question of testing the executive decision under 22.

MR PAGONE: That is important, your Honour, because that is the subject of potential review by the courts and that again is another short answer to the proposition of my learned friends. So that it is not as though they are shut out from review. On the contrary. Even on the construction they would say that the appeal to the Federal Court should collapse as a process authorised by the Constitution, it does not make them - - -

GUMMOW J: But the testing of the Attorney's surrender under section 22 would simply be under 75(v), would it not? There is nothing in the Act to test it.

MR PAGONE: Or 39B, your Honour.

GUMMOW J: Yes, well, read in 75(v).

MR PAGONE: Read it in 75(v), yes. It may assist your Honours: the issue that was before the Federal Court on the constitutional validity of the Extradition Act, your Honours will have, I think, in the three volumes that we handed up - your Honours do not have.

GLEESON CJ: What we really want to know is how it relates to the amended draft notice of appeal annexed to Dr Griffith's submissions.

MR PAGONE: Predominantly, your Honour, the new point that arises is the abuse point, the new ground being the argument that there is an abuse by reason of the court being restricted in the evidence that it may have regard to when considering an appeal from the Magistrate as being a constitutional challenge.

GUMMOW J: Well, was it a review process with the Magistrate.

MR PAGONE: Indeed, your Honour. Yes, there is a review process by the Magistrate.

GUMMOW J: The order is the Federal Court would either confirm it or quash it.

MR PAGONE: That is right, your Honour.

GUMMOW J: That is what section 21 says. It would not go around making declarations about invalidity of statutes unless there was something else that would enliven its jurisdictional powers.

MR PAGONE: Indeed, your Honour. Your Honours, I do want to say something very briefly about the state of satisfaction that a court should have. If I can come back - leaving the constitutional point for a moment, come back to the question of the exercise of jurisdiction. What his Honour said at page 17 - this is a point that my learned friend the Solicitor-General might take up and explore in one particular respect - but in paragraph 70 what his Honour had said in relation to Mr Cabal, he having been satisfied the first time that bail should not be granted, in paragraph 60 he says, and it is the second sentence:

However, I have concluded that, at this stage, Mr Cabal has not established by admissible evidence his capacity and willingness to provide security in a -

and then he uses this formulation -

sufficient sum, or in an appropriate form from an acceptable source, that, having been tested if necessary before this Court, would afford a foundation for the expression of the terms and conditions upon which Mr Cabal could be admitted to bail.

Your Honours, what we say about that formulation is, accepting it to be correct for present purposes, questions of sufficiency, appropriateness and acceptability must be judged by reference to the objective to be achieved by the bail. That is to say, can somebody act either as surety in an effective way or is the security, as was the issue here, in sum, sufficient, in form appropriate or in source acceptable to achieve the objective that Mr Cabal is likely to be delivered up for the purposes.

We would say that his Honour could not have reached the conclusion that he did even applying that test because on no view can it be said in the circumstances that have occurred here, we would say, that the sum is either sufficient to act as an effectively kind of surety, effectively, nor is the source acceptable when judged by reference to the ability to secure appearance because Mr Perry, on the evidence, plainly is in no position to ensure either that the appearance of Mr Cabal has lost a large amount of money. The evidence was that he had lost $30 million, or thereabouts, at least large sums, and seemed to be perfectly happy to expose himself - - -

GUMMOW J: What is the purpose of this idea of security in this field of discourse? I have never quite understood it. Security for what?

MR PAGONE: Well, his Honour seemed to think that it was security in order to justify the grant of bail in some way, by somebody being at risk that money would be lost. Presumably, somehow or other, that would be some measure of protection against the fugitive - - -

GLEESON CJ: Well, you get an indication, do you not? There is a lot of law about some rather arcane offence that you can commit by entering into arrangements about bail. There is a kind of offence you can commit that is taken extremely seriously because of its capacity to defeat the purpose of bail.

MR PAGONE: Yes, your Honour.

GLEESON CJ: That is because, is it not, the idea is that the person who stands as security will, if necessary, put the weights on the person to turn up.

MR PAGONE: That is precisely so, your Honour, and in Schoenmakers, I think it was, the Federal Court considered that the purpose of the obligations upon a surety and that is precisely why we say that, in these circumstances, sufficiency, appropriateness and acceptability have to be judged by reference to those standards. The fact that $2 million is offered might be a large enough sum, but one needs to ask, "Well, is the $2 million, in the context of this man, offered - - -

GUMMOW J: It is a large sum, but so what?

MR PAGONE: Exactly so, your Honour, and we contended below that, large though it may be, it is not enough to secure the delivery up of the person. At best, assuming that all of the technicalities were otherwise dealt with, it still would not be enough to ensure that it operated as an assurance that Mr Cabal would be available.

GLEESON CJ: Now, why not? What is the problem?

MR PAGONE: Your Honour, the party offering the $2 million, if I may refer to what, in fact, is being offered in that shorthand way, is not in a position, as he said, I think, in evidence in cross-examination to, in any way, supervise Mr Cabal or, in any way, see that Mr Cabal honours the conditions of bail, including the condition, especially the condition, of delivering himself up to the custody in due course.

McHUGH J: The practice always was that, at least in the criminal field in respect of bail, when people would apply to the estreat courts for an order remitting the order for forfeiture of bail, the first question the judge would ask was, "When did you first find out that the accused had absconded? What steps did you take to supervise the accused and when did you first inform the authorities about that?". One of the purposes of the granting the bail is that the person is not only a surety but is expected to take steps to ensure that the applicant for bail does turn up.

MR PAGONE: That is exactly right, your Honour, and that is what Schoenmakers is about and that was what was pressed upon his Honour, even accepting that that is an accurate statement of what the security is somehow designed to achieved. So far as Mr Perry is concerned, who is the man who is said to be behind the two million, is plainly not in a position to achieve any of those purposes, plainly not, not in the country - - -

GLEESON CJ: Who is the surety?

MR PAGONE: A number of sureties are offered. Mr Canavan - - -

GLEESON CJ: I am sorry, who is the surety to whom the $2 million is relevant?

MR PAGONE: Mr Cabal. I am sorry, Mr Perry, I apologise, but he is not a surety, your Honour. He is not offering himself as a surety at all.

GLEESON CJ: I am trying to work out what is the process by which, and who will suffer, if Mr Cabal absconds, in relation to this two million.

MR PAGONE: The evidence is that it will be Mr Perry, or more specifically, a company called Dosca.

GLEESON CJ: Well, I think we may need to be more specific in a context such as the present.

MR PAGONE: Indeed, your Honour. So far as the $2 million is concerned, your Honour, what was offered was the benefit of a mortgage over a property which we - - -

GUMMOW J: It was a transfer of mortgage.

MR PAGONE: Yes, your Honour.

GUMMOW J: A transfer of the mortgagee's interests and, more specifically, of the debt owed to the mortgagee.

MR PAGONE: No, your Honour.

GUMMOW J: Is that not right?

MR PAGONE: No, your Honour. There is no transfer of the debt unless it goes somehow or other with the transfer of the mortgage. That was a point that I did attempt to make to Justice Kirby. That is to say that there was no mechanism provided for that would enable the debt to be called up because all that was being offered was a transfer of the mortgage. In any event, to answer your Honour's question, there is a home in Armadale, said to be worth something like 2.4 or 2.5 million, or something like that. There is a valuation and we have not sought to challenge the valuation. The registered proprietor is a company and there is another company that is the owner of the registered proprietor of the mortgage, that company being Dosca.

GUMMOW J: Incorporated where?

MR PAGONE: British Virgin Islands, your Honour. That company is said to be a company provided by another company controlled by a man called Leue, who appears to offer services for people from - that is to say, he offers services for people of the British Virgin Islands. We sought to cross-examine Mr Leue. He was not available for cross-examination and I said at the outset of the proceedings before Justice Kirby that we will seek inferences to be drawn against that fact. In any event, the evidence of Mr Perry was that Dosca was his company and that he had made available the money for the purposes of the family, or at least this company, acquiring a home - - -

McHUGH J: When was the home acquired?

MR PAGONE: When? I think it was 99. It might be best, your Honour, if I just indicate where your Honours will find this evidence.

McHUGH J: .....Mr Cabal's entry into Australia?

MR PAGONE: Yes, your Honour. Your Honour, in volume 2 of the material, behind tab 42 is the affidavit of Mr Perry. Page 3, your Honours, paragraph 8:

In late 1999, I was contacted by Teresa Pasini Cabal, Carlos' wife, and informed of some difficulties she and the children were experiencing . . . I was told that some landlords, upon hearing the name "Cabal" were disinclined to rent -

Paragraph 9:

I was quite prepared to assist Teresa and the children in finding a longer term property -

Paragraph 10:

I left the arrangements in relation to the purchase of a suitable property to Carlos' legal representatives in Australia and I have no detailed knowledge of the purchase transactions, or the mortgage arrangements.

Paragraph 11:

Because of my friendship . . . I was willing to provide substantial funds in excess of $2 million -

and this is the fourth line -

I am prepared to offer the property as security for a bail application . . .

Then over the page he tells us about having instructed a man he refers to as "Jeremy". His full name is Jeremy Davies - this appears at paragraph 12, your Honours - and that a power of attorney was given to Mr Davies from Dosca "for the purposes of transferring Dosca's mortgage over" the property "to the Commonwealth".

GLEESON CJ: I am looking at page 12 of the reasons for judgment of Justice Kirby on 19 July, which are behind tab 20 in volume 1, where he deals with this point, and it seems that his Honour accepted the evidence of a solicitor, Mr Frenkel, the effect of which, as I understand it, was that if Mr Cabal absconded the Commonwealth would be able to get its hands on $2.4 million.

GUMMOW J: By selling the property.

MR PAGONE: By selling the property.

GLEESON CJ: What is the connection between that $2.4 million and the surety, Mr Perry?

MR PAGONE: Well, Mr Perry is not a surety, your Honour. He is simply not a surety and not even offered as a surety, and my learned friend, quite correctly, says, that is, he is not a surety. All that Mr Perry does is to say, "I am prepared to put at risk whatever interest I have which amounts to $2 million". For shorthand, we say, he is putting at risk $2 million.

GUMMOW J: He has no personal liability.

MR PAGONE: No, your Honour.

GUMMOW J: There is no action against him in the covenant.

MR PAGONE: No, your Honour, and he is not even offered as a surety. There is no attempt to do so.

GLEESON CJ: So, accepting Mr Frenkel's evidence, the ultimate effect of this is that if Mr Cabal absconds, the Commonwealth of Australia will be $2.4 million better off.

MR PAGONE: Probably two million but - - -

GLEESON CJ: Two million dollars better off, and somebody will be $2 million worse off.

MR PAGONE: That is right, your Honour, and that somebody, as a matter of legal form, is Dosca. Mr Perry seemed to indicate that it was Mr Perry. The man who might have been able to give some information that bore upon that question, Mr Leue, was not available. Your Honours, the process of the bells and the lights have some advantage which I shall now exercise upon myself - - -

GUMMOW J: Before you sit down, if you are correct on the matters you have just been addressing us on, they go, do they, also to the question of what we should do if we decided this question miscarried and we re-exercised it?

MR PAGONE: Yes, your Honour.

GUMMOW J: And you say we are the people who should re-exercise it?

MR PAGONE: We say that your Honours are in a position to re-exercise it unless something turns upon matters peculiarly within the demeanour of Mr Perry. That might be different.

GUMMOW J: Thank you.

GLEESON CJ: Yes, Mr Solicitor.

MR BENNETT: May I address your Honours from this position?

MR GRIFFITH: I wish to object to my learned friend's subject matters for address to the Court, your Honour.

GLEESON CJ: Having regard to the division of time, your objection will come off your time.

MR GRIFFITH: Yes, your Honour, I accept that. At page 47 of our submissions we make - - -

MR BENNETT: Your Honour, might I ask that any time I spend replying to it come off my friend's time if the objection fails?

GLEESON CJ: No. Go ahead.

MR GRIFFITH: I will talk quickly, your Honour. Before Justice Kirby on each occasion the Commonwealth's appearance was limited to substantive issues concerning the Human Rights and Equal Opportunity Commission. We give citations for that in paragraph 47 of our submissions. We have no objection of my learned friend having given a section 78B notice addressing issues of jurisdiction up to paragraph 22 of his filed submissions. We object to my learned friend entering beyond the ambit of jurisdiction of this Court into issues of discretion as in paragraph (B) and issues of security as in paragraph (C), which are interests sufficiently protected by Mexico as the primary party.

GLEESON CJ: Yes, Mr Solicitor.

MR BENNETT: If my friend's objection is only to paragraph 23 and following, I was only planning to spend about three or four minutes addressing that, but in any event I would submit that we are the person in whose favour the security is given and we are the appropriate party to address it. The submissions, as I say, are almost all in writing on that subject. I will be seeking to hand them up and they will be brief. In any event, I submit that I am entitled to appear generally. I am a party to the proceedings. Where points are taken by one party below, there is nothing to stop another party arguing those matters on appeal.

GLEESON CJ: To the extent to which it is necessary to do so, we can deal with these disagreements in our reasons for judgment.

MR BENNETT: If your Honour pleases. There are four matters I will be seeking to address your Honours on, each very briefly: the main point about the nature of the test and the power; the relevance of the strength of the case; the problems concerning the mortgage just referred to; and the fourth point is my learned friend's submission that this Court today should grant special leave so as to avoid the problem. I will deal with those four separately.

Justice McHugh this morning referred to the jurisdiction in section 73 to stay an order in order to effectuate the grant of appellate jurisdiction. That, we would submit, is something which in substance leads to the futility test which has been referred to in many cases but there may be, as I will demonstrate in a moment, one or two extreme situations which fall within the futility test or an extension of it. I will come to those in a moment.

Where one has a power to hear and determine an appeal, that necessarily involves certain things. One is the obvious one of preserving the subject matter of the appeal - the Tait situation. One is preserving the appeal against futility or virtual futility. That is the situation referred to in a number of the criminal cases where a sentence is about to expire and the appeal will come on at such a time that effectively the appellant will have served his or her sentence. One can understand those cases.

Your Honour the Chief Justice asked about the example given by Justice Brennan where one has a recent decision of the Court on the basis of which the appeal is almost certain to be allowed. We would answer that question in two alternative ways. The first is to say that that may not fall within the principle to which I have referred. The way to deal with the case, of course, might be to allow the appeal instanter if it is as clear as all that, which achieves the same result rather more directly. The other answer is that it may be possible to say that in a case - - -

GLEESON CJ: It might not achieve the same result if you only had a single Justice dealing with the matter.

MR BENNETT: No, your Honour. In that situation one perhaps could remedy that in the way it is remedied where there are two Justices and a third is brought in. One finds another Justice and hears the matter immediately. "Instanter" then may be a slight exaggeration, but the result certainly can be achieved with some inconvenience for the Court.

The other answer is to say that it may be that where it is so clear that the appeal is going to be allowed, that there is an extension of the futility principle in saying that the order of the court below should continue operation for any period up to the period where the appeal is heard. I do not propose to make detailed submissions as to whether or not that does fall within the principle. It may or may not. What we do say is that this type of case certainly cannot fall within the principle. This type of case, being one where one says that if one looks at normal bail considerations, one looks at the circumstances, one can apply the word "exceptional" if one likes, that is sufficient to allow this Court in effect to stay, assuming that one treats it as a stay, the judgment below for that reason and that reason alone, even though on the facts of this case and as referred to by his Honour in his judgment, the effect of the order is to create a risk that otherwise does not exist that the proceedings may be futile because flight occurs and not in any way to detract from a futility which might otherwise occur.

So, at its highest, what has been done in this case is so far from saying the appeal may be futile if I do not do it, is doing something which creates a risk not otherwise existing that the appeal will be futile. It is very hard to see how the implied jurisdiction in section 73 can include that sort of situation.

McHUGH J: Mr Solicitor, the futility ground cannot cover all the field. Victoria Stevedoring v Dignan says that the jurisdiction in this Court is to make the order that the court at first instance should have made. It is a true appeal. If your argument is right, I do not see how the Court could ever grant bail in any case where a person was appealing against a prison sentence. The appeal can still go ahead even though the sentence has expired.

GLEESON CJ: Normally the sentence will not have expired technically. It will be only the custodial part of the sentence that has expired.

MR BENNETT: Yes, that is so, but in those cases what is said is one does not have to have the absolute futility as in the Tait Case. One can have virtual futility, substantial futility, whatever phrase one wants to use, as part of the appellate power, but this case is nothing like that. This is not a case where there is any element of that sort of futility. It does not effectuate the power to hear and determine this appeal in any way to say that there should be bail pending the determination of the special leave application.

McHUGH J: But supposing this Court came to the view that the Magistrate should never have made the order because the Magistrate had no authority because the Act was invalid. Assuming that is the case, why does not the conferral of jurisdiction under 73 give this Court the authority to stay the order of the Magistrate pending the hearing of the case?

MR BENNETT: Your Honour, if the Court was of the view that that was virtually certain as a result, that may well be so.

McHUGH J: But, once you concede that, you concede the point of principle and it then becomes a question of detail, does it not?

MR BENNETT: No, your Honour. The test cannot rise higher than its source. The test that the Court applies cannot rise higher than the constitutional source of the power, which is to effectuate the Court's jurisdiction in relation to the appeal. A general power to allow bail in exceptional circumstances whenever it is just to do so goes far beyond the scope of that constitutionally implied power. The point is as short as that, your Honour.

McHUGH J: Yes, I know that, but it seems to me that the power to grant bail is an incident of the power to stay the order. It follows on from that, but there is not an independent power. It has been held again and again that courts of general authority do not have power to grant bail except under a statute. Some of the cases are collected by Justice Brennan in Chamberlain.

MR BENNETT: And in Lim they are referred to as well.

McHUGH J: Yes.

MR BENNETT: There is no doubt of that, your Honour. It has to be regarded as a stay, which of course is not the way it was treated. That itself is part of the problem with the miscarrying of the discretion. Accepting that, the nature and purpose - - -

McHUGH J: Just to test it this way, what does the gaoler say in this particular case? He has a warrant, there is no stay order on it enabling him to keep the applicant in prison and, on the other hand, he has an order from the High Court. Which one does he obey?

MR BENNETT: Which one he obeys in practice is probably very clear, your Honour, but which one he should obey may well be a problem. Certainly one can imagine cases - the Chief Justice asked my learned friend the question: what cases are there where there could be complete necessity? One obvious example was medical treatment. Another might be a case where, say, in a smaller State there was a strike of prison officers and prisoners were just not able to be operated during the period and people were not being given food and so on. One can understand the need to preserve the subject matter of the jurisdiction, but that simply does not exist in this case.

GLEESON CJ: But you seem to treat the subject matter of the jurisdiction as the individual.

MR BENNETT: The subject matter of the jurisdiction - - -

GLEESON CJ: I could understand that in Tait's Case where somebody was threatening to hang him.

MR BENNETT: Yes. The subject matter here, your Honour, is the ability to extradite, the liability of the alleged fugitive to be extradited to the foreign country and removed to the foreign country.

GLEESON CJ: The capacity to return him to Mexico?

MR BENNETT: Yes.

GUMMOW J: The capacity of the Attorney-General to make a determination under 22(5).

MR BENNETT: Yes. Your Honour puts it more accurately than I did. There is a string of cases which your Honours have been referred to. In Sinanovic [2001] HCA 35 Justice Kirby at paragraph [11] in applying the principle said:

The principles to be applied in this application are not in doubt . . .

2. The purpose of the exercise of the power -

that is the power to grant bail -

is to prevent the processes of this court, as envisaged by the Constitution, being rendered futile.

The reason why my concession does not destroy the submission is that the reference to futility is itself a subjective matter. There are degrees of futility. To what extent is something futile if after the Court's determination there is one day of a sentence left? Futility is necessarily a matter of degree and that is why there may well be cases which are difficult cases involving borderline situations. But ultimately the considerations that must be applied are not the type of consideration his Honour applied here. They have to be of a different kind. I should also mention that section 73 of course itself says "subject to such regulations as the Parliament prescribes", so one always has to construe the grant of power as a whole, and that includes applying the expressio unius rule to this Act and looking at the Act as a whole.

The second matter concerns the weight to be given to the strength of the special leave application. I have already conceded that there may be cases where it is so obvious that it will succeed but it is an application of what I loosely call the futility principle to grant a stay pending the appeal. In this case - and I do not want to spend a lot of time on this; my learned friend has dealt with it - may I just say this, that one proposition my learned friend has to succeed on on both aspects of the ultimate appeal if special leave is granted is to get over the question of severability.

His primary submission is that, because the grant of power to the Federal Court is administrative, not judicial, it fails the Boilermakers test. He seems to challenge the applicability of the chameleon principle, the principle which says that a power can be administrative when given to an administrator and judicial when given to a court, and he says therefore the power given to the Federal Court is invalid. Let it be assumed, notwithstanding the prior authority, he succeeds on that.

GUMMOW J: That is the power to review under section 21.

MR BENNETT: Yes, your Honour. It would be hard to imagine a clearer case of severability. He concedes that the power of the Magistrate is administrative. The powers of the Attorney-General in dealing with the matters he or she deals with before and after that are administrative.

GLEESON CJ: The Act just puts into the extradition process a procedure for judicial review.

MR BENNETT: Yes, at the suit of either party. It is not just a right given to one party as part of the balancing exercise. It is a right of review given to both parties. If that fails and is taken away, why does one say that the consequence is that the whole Act fails? It is a very long bow. There is an analogy, and I do not think we have given your Honours this case, but it is in the British Medical Association Case [1949] HCA 44; 79 CLR 201. There is a short passage at pages 236 to 237 where it is said:

If these provisions were held to be invalid the only result would be that there would be no appeal from a decision of the Director-General suspending or revoking approval of a chemist, doctor or hospital authority - the whole matter would be left to his uncontrolled discretion. Further, these provisions - which were inserted in the statute by an amending Act - No 8 of 1949 - are clearly severable from the rest of the Act, and, if they were held to be invalid, the validity of other provisions would not be affected.

GLEESON CJ: Is it the case that the particular provision that your opponents have to say is invalid is section 19?

MR BENNETT: No, your Honour. As I understand it, what they say is - - -

GUMMOW J: They have to get rid of the Magistrate's decision, do they not?

MR BENNETT: Yes, they do.

GUMMOW J: It is under that that he is detained.

MR BENNETT: They do not challenge that, your Honour. What they say is the only reason that fails is that the Act is invalid.

McHUGH J: They say 21(6) is invalid, do they not, and therefore the whole - - -

MR BENNETT: That is the second point. I have not come to that yet. On the first point, they say that the conferral of jurisdiction on the Federal Court is invalid because it is administrative and then that brings down the Act.

GLEESON CJ: This is an application for special leave to appeal against exactly what?

MR BENNETT: Against a decision of the Full Federal Court affirming a decision of a single judge of the Federal Court on a review from the decision of the Magistrate.

GLEESON CJ: What was the decision that was affirmed?

MR BENNETT: A decision that he is an extraditable person and committing him to prison and - - -

GUMMOW J: No, what the Full Court affirmed, was it not, was the order of Justice French, who in turn under 21(2)(a) had confirmed the order of the Magistrate?

MR BENNETT: Yes, your Honour.

GUMMOW J: And the order of the Magistrate was that the person was eligible for surrender.

MR BENNETT: Yes, your Honour.

GLEESON CJ: So the argument must be that Justice French had no power to confirm the order of the Magistrate.

MR BENNETT: Yes.

GLEESON CJ: So, if Justice French had no power to confirm the order of the Magistrate, the Magistrate's order stands unconfirmed by Justice French.

MR BENNETT: Yes, your Honour, but it stands in its own right.

GLEESON CJ: Yes, that is right. Where does that get Mr Cabal?

MR BENNETT: We would say nowhere, your Honour. He says that the whole Act falls because the provision is not severable, therefore there was no power in the Magistrate to do anything because the whole Act was invalid. That is the way he puts it, as I understand it.

GLEESON CJ: So Justice French's decision which is in issue was erroneous because it confirmed an order or a determination?

McHUGH J: It is an order, is it not, under 21(2)?

MR BENNETT: He orders the person shall be committed to prison. No, I am sorry, the Magistrate determines the person is eligible for surrender, then orders that he be committed to prison and does certain other things.

GLEESON CJ: So it is the determination and the order that your opponents want to get at?

MR BENNETT: Yes, your Honour, and the first way is what I have described. The second way is that they focus on two provisions of the Act, one of which says that the Magistrate's power is limited. He or she only looks at certain matters which are set out in section 19(5). One cannot, for example, have evidence that the person did not commit the offence or that sort of thing. The Federal Court is in the same position on appeal because of another provision. My friend says taking those two provisions, they prevent the Federal Court acting on the basis of an alleged abuse of process in Mexico. That, they say, is contrary to Chapter III that the Federal Court should not have the power to do that.

Leave aside the weakness of that argument, it again leads to the result, if accepted, that jurisdiction was invalidly conferred on the Federal Court and therefore that fails, it is inseverable, the Act fails. So either way my learned friend can only get to the result he seeks to get to by getting over an almost impossible burden of showing inseverability. He does also, in fairness, in the notice seem to have what is said to be a construction point, which we do not quite understand. I am not sure if it is meant to be a construction point or not but there seems to be a suggestion in the notice that the two provisions do not have the effect that they say they have, but that perhaps he can deal with.

In any event, for the reasons I have given, we submit this is a case where there are very low prospects of ultimate success. One adds to that that the test applied by his Honour - - -

GUMMOW J: I am not sure that you have to put it that way, do you?

MR BENNETT: I am sorry, your Honour?

GUMMOW J: Is it not enough for your purposes to adapt what Chief Justice Mason said in Zoeller, namely, you would say, we could not be left with a confident impression that leave would be granted?

MR BENNETT: Yes, your Honour.

GUMMOW J: You say it is much worse than that.

MR BENNETT: Yes. The test applied by his Honour in paragraph 36 was that because of the order that special leave be adjourned to the hearing of the appeal:

that the applicants' submissions were regarded as arguable and warranting a decision by all available Justices.

The test cannot be as low as that, so on any view of it we would submit the discretion has failed on that account. That just cannot be the test.

The third matter I wanted to mention very briefly is the question of the mortgage. I propose to simply deal with this in writing. I hand some submissions to your Honours and pass them to my friends. I will just spend two minutes telling your Honours what these say rather than inviting your Honours to read them at the moment. We have written to my learned friend's solicitors complaining about this, saying if this can be cured, of course we are happy to have it cured. We have not had a reply. In fairness again, the time has been very short and we accept that they have other things to think about in preparing this appeal.

The two problems are, other than the ones referred to by my learned friend, first that there is no mechanism given for the transfer of the debt. We are left to the general implication - - -

GUMMOW J: In New South Wales would not section 91 of the Conveyancing Act have done that, Mr Solicitor?

MR BENNETT: It would, your Honour.

GUMMOW J: But they do not have that in Victoria?

MR BENNETT: They have a - - -

GUMMOW J: Section 91(1)(e) I think it is in New South Wales.

MR BENNETT: I think there is a provision to that general effect but, your Honour, the problem is this - - -

GUMMOW J: But you assign the debt, as it were.

MR BENNETT: Yes. This debt is under a written agreement. We do not have evidence of what amount has been advanced, what amounts have been called up, what demands have been made and so on. There is also a period of demand specified in it and so on. We want a full assignment of all the rights of the mortgagor and the mortgagee in effect, and that is what we have said. We have given details of the conveyancing steps that we say should be taken and, as I say, we have had no response.

The second difficulty is that there is a lease to Mrs Cabal, the wife of the first respondent. Again, we do not have the terms of the lease. We simply want some joinder by her in the security so that no rights can be claimed inconsistent with the fee simple we would otherwise get. A lease can, of course, be anything and if for a long period at a low rent, can very much reduce the value of the property. That is all we say in the documents I have given your Honours. We have made it clear, of course, that by making those submissions, we do not concede that there ought to be an order at all but, if it is being made, those submissions should operate.

The final matter is this. My learned friend has submitted that there should be a grant of special leave now so as to avoid the problem. All we say about that is this, that it does not avoid the problem at all.

GLEESON CJ: Well, hang on. If he wanted to make that submission to us, he would have the risk that we might decide there should be refusal of special leave presumably.

MR BENNETT: He would, your Honour. He certainly foreshadows the application and he made it to two of your Honours last week.

GLEESON CJ: Is it one of your submissions that if we were to entertain that application, the proper outcome would be to refuse special leave?

MR BENNETT: Yes, your Honour.

GUMMOW J: The substance of what he has to do is to renew his application for grant.

MR BENNETT: Yes, your Honour. We just say this, that it is not a matter of getting over a little technical problem for a number of reasons. First, the Court differently constituted made a decision about special leave, to defer it to the hearing of the appeal. It is not a ground for departing from that that it would facilitate another application. Secondly, his Honour's decision was in any event based on, we would submit, for the reasons given to my learned friend and myself, a number of erroneous which would prevent it standing. In any event, it certainly would not stand as a decision if there were a different basis for the application, namely the statutory application after the grant of special leave.

Thirdly, even if the test under the section is the same as the test his Honour applied - and they certainly seem to be very close - one cannot assume that on a fresh application, now that we know how close the hearing date is, the same result would be reached and there would be fresh considerations.

We have also listed a number of other questions that would arise about who would determine the fresh application and so on, which I do not propose to go into detail about. But it certainly is not a procedure which would simplify, as opposed to complicate, the hurdles my learned friend has to surmount. I have just been handed, your Honour, a document entitled "REVISED NOTICE OF A CONSTITUTIONAL MATTER" under section 78B - - -

GUMMOW J: Yes, that came up with the papers yesterday, I think.

MR BENNETT: Yes. There is a suggestion about reading down a section but, your Honour, if one looks at it, it is not so much a reading down as a contradiction of it, but in any event I will not waste my time on that in view of the time. Your Honours, for those reasons we support the appellant in submitting that the appeal should be allowed.

GLEESON CJ: Thank you. Have you agreed on an order of addresses, Dr Griffith?

MR GRIFFITH: We have, your Honour. Me first, if the Court pleases. Your Honours, we have been in some difficulties in seeking to comply with procedural direction No 1 for the purpose of this appeal because we did not have the advantage of any submissions following that from the United States of Mexico and as your Honours will see from - - -

GLEESON CJ: We saw the note - - -

MR GRIFFITH: The effect of that is, your Honour, that we were holding off to respond on the summary of facts. We were expecting to receive one and as it turns out, your Honour, the submissions of Mexico were of the briefest. If one takes out the heading, your Honour, they cover about three and a half pages double space, so there is no summary of facts apart from an assimilation of some extracts of the various Federal Court proceedings.

GLEESON CJ: Dr Griffith, at some stage you will summarise for us the special leave point.

MR GRIFFITH: I will certainly do that, your Honour, but could I say first that we have in the absence of a version of the facts and a chronology from the United States of Mexico filed this morning with the Court a summary of facts on behalf of Mr Cabal. That, your Honours, we contend is a fair summary of the three volumes of evidence which were before Justice Kirby on the two full days when he considered the matter.

GLEESON CJ: None of the submissions made to us so far have attempted to distinguish between the position of Mr Pasini and Mr Cabal.

MR GRIFFITH: Yes.

GLEESON CJ: I do not know whether Mr Grace is going to attempt to do that. I did notice from some parts of the reasons for judgment of Justice Kirby that there may be some differences between them factually.

MR GRIFFITH: Your Honour, Mr Grace's written submissions do do that in sufficient detail to distinguish his client and I will leave him to look after his interests.

GLEESON CJ: All right.

MR GRIFFITH: Your Honour, I address myself entirely to the position of Mr Cabal which, of course, necessarily addresses this risk of flight issue at a level higher than that that would apply to Mr Pasini.

GLEESON CJ: There seem to have been two differences as I understand the fact. The risk of flight was regarded as higher in the case of Mr Cabal.

MR GRIFFITH: Yes, your Honour.

GLEESON CJ: And the psychological damage was regarded as more severe in the case of Mr Pasini.

MR GRIFFITH: Before Justice Gray, your Honour. Before Justice Kirby the evidence was, and it was not challenged, and the finding of Justice Kirby was that it was, by that stage, equal. Mr Cabal had got to that same level, your Honour, and we extract that in our submissions and there was no challenge to that and that is the absolute finding of Justice Kirby.

But, your Honour, our summary of facts does summarise the affidavit evidence and also the oral evidence on cross-examination on 19 July before Justice Kirby on the second occasion and, your Honour, we do wish the Court to be apprised of that summary of the detail and in the truncated time available, without seeking, as it were, lunch homework for the Court, we say an understanding of these issues is predicated upon reading our summary of facts on behalf of Mr Cabal, being a document some 11 pages we filed this morning which we explained being late because we were waiting for something to respond to.

Your Honour, in particular on pages 8 and 9 of this document, we summarise the evidence about the security offered by Mr Perry with respect to Mr Cabal. That issue is one which arose from the first decision of Justice Kirby on 29 July where he indicated that he would be minded to require a security of $2 million and in response of that there were various affidavits which we refer to in this summary offering a particular security, verifying through the affidavit of Mr Frenkel, which Justice Kirby extracts the relevant paragraphs on page 12 of his determination of 19 July to establish to his Honour's satisfaction that what was proffered, namely the two certificates of title, the assignment of mortgage and the executed assignment of that mortgage in blank with the mortgage document, constituted an efficacious security for the amount.

In as much as the Commonwealth and my learned friend appearing for the United States of Mexico seek to take those issues further by references to the lease, which was not called for before Justice Kirby or made the matter of submissions or the other issues raised now by my learned friend's new and extensive submission, which is supported, your Honours, we note by a letter dated 27 July which was received on our part yesterday, which is purported to be written by the Australian Government Solicitor acting on behalf of the Commonwealth of Australia represented by the Commonwealth Director of Public Prosecutions. Your Honours, it is my learned friends, the United States of Mexico, that have been instructed by the Director of Public Prosecutions. We do not apprehend there has been any appearance by the Commonwealth represented by the DPP.

My learned friend, as is noted in the judgment of Justice Kirby 19 July at pages 9 to 12, had a full opportunity to challenge the security and chose not to do so. That being said, your Honours, if there is an issue about the lease, we are able to give an undertaking that, firstly, there is a monthly tenancy only and that Mrs Cabal is prepared to undertake that she would vacate the property on 30 days notice. If there is any other issue of security, your Honour, predicated upon Mr Cabal being released, we would be happy to join in as much as it was necessary to issue further documents, but that is in the context, we say, where they have the advantage of a finding after a full opportunity to contest it with Justice Kirby - - -

GUMMOW J: Just explain to us how the security works. That is all one needs to know really. What would happen? What would happen if there was flight?

MR GRIFFITH: Your Honour, if there was flight - it was proved before Justice Kirby, contrary to my learned friend's contentions, that some $2.4 million cash had been advanced, sourced to Mr Perry and delivered through Dosca Ltd, so there has been a cash advance of $2.4 million to purchase the premises. They are presently valued at $2.5 million. The evidence of Mr Frenkel is that the assignment of the mortgage enables, your Honour, the moneys to be called which become due and payable in March 2001, at any time after March 2001, and in default of payment the security could be exercised. That is the evidence of Mr Frenkel which is confirmed by a specific finding of Justice Kirby's judgment, having noted that my learned friend - - -

GUMMOW J: So the Commonwealth would have the benefit of a covenant by Mrs Cabal, would it, as the borrower?

MR GRIFFITH: Your Honours, Mrs Cabal is not the borrower. The borrower is a company.

GUMMOW J: Yes, of that company, that family company.

MR GRIFFITH: Yes. Your Honour, the evidence before Justice Kirby was that this was a mechanism to purchase the property to comply with the foreign investment requirements on advice of Messrs Mallesons.

GUMMOW J: Yes, I understand that.

MR GRIFFITH: But, in effect, your Honour, the full equity was made available by Mr Perry from his own funds which he would choose to flow through Dosca.

GUMMOW J: All I am trying to - is think about remedies, that is all. The remedy, in practical terms, would be sale of the property.

MR GRIFFITH: Yes, your Honour. Yes, and the mortgagee would be entitled to $2.4 million plus any accrued interest from that. The property is worth at least $2.5 million. So the security is good, as Justice Kirby - - -

GUMMOW J: But no recourse against Mr Perry?

MR GRIFFITH: Your Honour, the evidence accepted by Justice Kirby that it is Mr Perry's personal money that he - - -

GUMMOW J: Yes, but no recourse by the Commonwealth against him?

MR GRIFFITH: Your Honour, they will have 2 million of his money - - -

GUMMOW J: Yes, I know that, but no covenant on which they can sue him, assuming they could get hold of him.

MR GRIFFITH: They do not have to, your Honour. They have their 2 million.

GUMMOW J: All right. The answer is no.

MR GRIFFITH: I think we are in a circle there, your Honour. The answer is that Justice Kirby was looking for $2 million as security.

GUMMOW J: I am just trying to find out what rights they have, that is all.

MR GRIFFITH: The rights they have, your Honour, are to sell the property and recover $2 million plus costs.

GUMMOW J: That is right.

MR GRIFFITH: Yes.

GUMMOW J: Out of the proceeds of sale.

MR GRIFFITH: Yes, and that is what Justice Kirby held was sufficient to secure $2 million.

McHUGH J: Dr Griffith, it is a very strange arrangement, is it not? In 40 years of experience I have never struck anything like it. I mean, ordinarily one has a surety who, in effect, guarantees that the person will turn up on the due date and if that person does not take the steps to ensure the appearance of the prisoner then he or she forfeits the security that is given and, at least in New South Wales, that person, upon the forfeiture of the security, could approach the estreats court and ask for an order that the whole or part of it be returned because that person did everything in his or her power to ensure the person would turn up.

MR GRIFFITH: There are four sureties of impeccable character, your Honour, whose affidavit evidence at length as to their aspect of surety and confidence was not challenged, who have separately, as sureties, put up $50,000, $50,000, $10,000 and a car and a caravan.

McHUGH J: Yes, but I cannot see any reason why the same purpose would not have been served if Mr Cabal had been asked to put up the $2 million.

MR GRIFFITH: Your Honour, one finds it from the reasons of Justice Kirby. He thought there should be a substantial cash sum that should be forfeited and on his findings, your Honour, he regarded - - -

GUMMOW J: There is no cash sum that is forfeited.

MR GRIFFITH: I am sorry. I should say the equivalent of $2 million security, your Honour, and on the evidence he found that Mr Perry had such confidence in Mr Cabal that he was prepared to do that even on breach of a reporting condition and he regarded that as a reassuring aspect, your Honour. His Honour considered this at length and exhaustively, your Honour, and made the findings that he made and that - - -

McHUGH J: Well, if the point is the reassurance, then why was his word not sufficient? Why does he want him to forfeit this money?

MR GRIFFITH: Because he lives offshore, your Honour, and Justice Kirby wanted the security of $2 million to be provided by someone and he has found as a fact that it is not provided by Mr Cabal, that it is Mr Perry's own moneys that he is prepared to put up as security as an abstract thing to help his friend. That is all that Justice Kirby required, your Honour, and he has found that there has been compliance with that on the second application as far as form is concerned. That was the purpose of the second application.

That is a matter, we say, for the exercise of Justice Kirby's discretion, having found that there were four sureties of impeccable character, who within their means were prepared to put up what they could, he was looking for an additional sum as security and that was secured in this way to the entire satisfaction of Justice Kirby so far as legal form was concerned.

With respect, that is a matter for discretion for the particular judge dealing with the issue as to what is appropriate to balance up the factors dealing with the issue of risk of flight, on the one side, and the various other factors which Justice Kirby thought the interests of justice maintain the other way.

But, your Honours, could I indicate that that really dictates our second aspect of our submission and that is that an understanding of the situation must be predicated upon a full reading of Justice Kirby's two orders, firstly that appearing at tab 15 dealing with 29 June and, secondly, tab 20 on 19 July, because many of the questions, we would say, my learned friend's answer to them must necessarily be incomplete in their response without reading the entirety of Justice Kirby's judgments which are to be read together.

The first judgment, your Honour, on 29 June dealt with the issues of fact to the point that he was satisfied that there were exceptional circumstances. The second one was primarily directed, your Honour, to the issue of sureties and the issues of satisfaction as to the security which - - -

GUMMOW J: Well, there had been a reagitation by your opponents, had there not, on the second occasion of issues in the first occasion?

MR GRIFFITH: They had every opportunity, your Honour, and I should mention that - - -

GUMMOW J: And his Honour dealt with that reagitation, did he not?

MR GRIFFITH: Yes. Your Honour, could I deal with the matter of reagitation in that at the first hearing we were prepared to accept the position that because of the reference in of special leave, the jurisdiction under the terms of the Extradition Act were not available.

Your Honour, on the second hearing we sought to reagitate that issue and that was dealt with by his Honour Justice Kirby in his judgment at tab 20 on page 2 and what Justice Kirby indicated was that, if uninstructed by authority, he would be disposed to regard the word "appeal" in section 21(6)(c) as something to be read distributively to enable an exercise of the jurisdiction to grant bail to be exercised pending the resolution of an application for special leave.

That is an issue of construction, your Honour, but we would wish your Honour to revisit that issue. Of course, the Chief Justice in Zoeller did refer to subsection (5) as indicating that the draftsperson was alive to the difference between special leave and where leave to appeal is granted, but that being said, your Honour, we submit that when one visits subsection (6) it is plain that the Act has a wider meaning. We deal with this issue, your Honour, in paragraphs 30 to 37 on our submissions, pages 10 and 11.

Can I take your Honours directly to the wording of subsection (6) of the Extradition Act in maintaining this submission. We say, your Honour, looking at paragraphs (6)(a), (b) and (c) it would seem that there is an intention to have a comprehensive capacity to admit to bail. That was not a provision which was in the prior Act. But, your Honour, subsection (6) is of complicated structure and as my learned friend, Mr Bennett, the Solicitor-General, I think, made the point, your Honour, subsection (6) can work both ways. It may be invoked where on appeal to a single Justice or a Full Court, your Honour, there is a determination against the requesting State. If that happens, of course, your Honour, then there would automatically be an entitlement to release of the person affected by that order.

So let us assume the situation, your Honour, that there is a decision which is erroneous in law and liable to be reversed on appeal by special leave to this Court that a person is not an eligible person for the purpose of the Magistrate making the determination and ordering the issue of a warrant. In that case, your Honour, the person would be entitled to be released and could go to the airport immediately and depart Australia and escape any further application of the Act, whether or not special leave was granted and whether or not the appeal was granted.

Now, to provide for that position, your Honour, subsection (6) works equally, we submit, as it works in respect with something in its application here to Mr Cabal in circumstances where his application for special leave has been referred into the Court. What that enables, your Honour, is to say that:

if, because of the order referred to in paragraph (a), (b) or (c) -

this is in paragraph (e) -

the court . . . may order the arrest of the person.

In other words, your Honour, there is a specific power and we would say vested in this Court under paragraph (6)(c), once there has been an appeal to the Court, to arrest a person if the Court was minded, one would suppose, that the requesting country had a good special leave point that had prospects of success in this Court.

Your Honour, if it is the case, as my learned friends contend, that there is no jurisdiction under the Act to admit to bail within respect of subsection (6), it would follow there would be no jurisdiction in this Court and we would say there would be absolutely no implied or inherent jurisdiction in this Court to order the arrest of a person in anticipation that the requesting country's appeal might be successful.

So, your Honours, we demonstrate that there is a clear lacuna in the structure of the Act which, in our submission, would work both ways and that if my learned friends are right in their construction, your Honour, if there was an erroneous decision at the level of a single Justice or particularly at the level of the Full Court, there would be no means whereby the subject matter which they so anxiously say they were entitled to secure, which we say is not the subject matter of a person being a person who is an eligible person, your Honour - we say the subject matter is the issue whether such person is an eligible person and we - - -

GUMMOW J: Well, what you would have to do, would you not, would be to stay the order quashing the order of the Magistrate and that would leave in force the Magistrate's order for detention under 19(6)?

MR GRIFFITH: Yes, but what we say, your Honour, the order would be made under section 21(6)(e) and I should point out to your Honour that when one looks to the report of Pelechowski - - -

GUMMOW J: I cannot see why it could not be made under section 73.

MR GRIFFITH: Well, your Honour, in Pelechowski v Registrar, Court of Appeal 72 ALJR 711 at 713 I would point out that your Honour's order in granting bail did also say in the last paragraph:

The summons also sought an order staying the judgments of the New South Wales Court of Appeal. That order is not an appropriate one to make.

So that in a way, your Honour's judgment - - -

GUMMOW J: I do not regard any of these single Justice decisions delivered under enormous constraints as particularly authoritative.

MR GRIFFITH: Your Honour, we entirely agree but what we say is - - -

GUMMOW J: Why we keep getting referred to one after the other, I do not know.

MR GRIFFITH: I am not, your Honour. I am just saying that we would say it is an efficacious order to have an order in the form of Justice Kirby, that it is effective to do that which he intended to do without adding an order for a stay of the Magistrate's decision. But we would say, your Honour, that there being a specific statutory power under section 21(6)(e) which would be predicated upon error against the interests of the requesting State, that that would seem to be a plain indication that "appeals" is used in the more general distributive sense which was referred to by Justice Kirby on page 2 of his judgment of - - -

GUMMOW J: Because otherwise there would be no mechanism for keeping in custody a person in your client's position who had won in the Full Court.

MR GRIFFITH: Yes. Your Honour, if the Court took the view that there was an absolute right of opportunity for success on appeal - - -

GUMMOW J: One in the Full Court because the Full Court had quashed the order of the Magistrate.

MR GRIFFITH: Yes, your Honour, that is our point and what we would say is that it would seem that is the plain intention of paragraph (e) and also the remainder, your Honour, of this rather convoluted section and if that is the case it must work both ways and there is nothing difficult about reading "appeals" in paragraph (c) as having a particular non-technical constitutional meaning, which we would accept applies for the purpose of, for example, the Constitution. In other words, your Honour, there is a particular meaning appropriate to the scheme of the Act. If that is incorrect, my learned friends then lose the advantage of being able to secure a person's stay in Australia.

So, in that context, your Honour, we say that the reference to subsection (5) by Chief Justice Mason in Zoeller, whilst being a matter appropriate for reference, is only dealing with the mechanical issue of reducing the 21 day period to 15 days, indicating the policy of the Act to maintain a momentum in extradition matters. But it is one that does not visit, with the finality of meaning, the issue of the construction of appeal. In that respect, your Honour, with respect, we would say that Justice Kirby's discussion in his decision of 19 July does summarise the better view of construction.

If we be right on that, your Honour, we would say that then the subject matter of this appeal is merely a technical issue, because if that is correct, undoubtedly there is jurisdiction to grant bail, in the circumstances that plainly Justice Kirby has applied an equivalent test to a no higher standard than that as required by subsection (6) of the Act, being special circumstances. We agree. Special circumstances, exceptional circumstances, highly exceptional circumstances - however described, your Honour, it is quite plain when one reads the entirety of Justice Kirby's two judgments on this issue, with respect, that he has had full regard to the fact that the scales are calibrated very heavily against a grant of bail. That is the issue, your Honour - - -

GLEESON CJ: Can I ask you about paragraph 36 of the first set of reasons for judgment of Justice Kirby?

MR GRIFFITH: Your Honour can as soon as I put my finger on them, your Honour. Yes, your Honour.

GLEESON CJ: Am I right in thinking that that is the only expression we find of his Honour's evaluation of the prospects of success of the special leave application?

MR GRIFFITH: With respect, your Honour, he also dealt with it in his other decision, paragraphs 35 and 36.

GLEESON CJ: Have you the pamphlet of that second decision?

MR GRIFFITH: I have not, unfortunately, of the second. I do not have the pamphlet but the - I am sorry, the first decision, paragraphs 34, 35.

GLEESON CJ: That is what I am looking at, 34.

MR GRIFFITH: Yes, 34, 35, 36, your Honour.

GLEESON CJ: Yes.

MR GRIFFITH: Now, your Honour, the difference between Zoeller and this case, with respect, is that his Honour the Chief Justice was dealing with the matter in advance of any exposure at a special leave application. That was the position when this matter first came on before Justice Gaudron and she adjourned the matter until the special leave application was heard on 22 June.

Now, your Honour, of course something unusual happened on 22 June in that plainly the expectation of the respondent was that special leave would be refused. The hope, if not the expectation, of Mr Cabal was that special leave would be granted. But, your Honour, the issues which are raised on special leave - and we cannot postulate possibilities beyond describing what was happening - is that the appeal from Justice French through the Full Court raised the issue as to whether or not section 21 was invalid inasmuch as it vested a power to review in a single judge and then a Full Court as being a vesting of administrative power in a federal court.

Your Honour, to put content into that submission, can I take your Honours to section 21(2)(b)(ii). What we say, your Honour, it is common ground that this Magistrate's decision to confirm and to issue a warrant under, in this case, section 19(9)(a) is administrative and the warrant is referred to, your Honour, as a "warrant in the statutory form", which is a schedule to the Act.

Now, the function of the Court, your Honour, we say, is to do exactly the same thing as the Magistrate does because under section 21(2)(b)(ii) in the event that there has been a quashing of the order of the Magistrate in favour of the requesting State, then it is the Court that issues a warrant in exactly the same terms.

GUMMOW J: There is another gap though, is there not? Assume that the Magistrate has ordered that the person be released under 19(10) and then the extraditing applicant country wants to go to a Full Court under section 21. It has to win there. It has to succeed, does it not, before the order of the Magistrate releasing is quashed?

MR GRIFFITH: But you can get an order for arrest under subsection (6)(e), your Honour, pending that, otherwise there would be nothing to stop flight.

GUMMOW J: Yes.

MR GRIFFITH: So whether that is obtained or not, your Honour, perhaps the person is happily living here forever, an Australian citizen who does not want to flee. Whatever the case, your Honour, there is a capacity for a court to order arrest on review to a single Justice and/or to a Full Court, your Honour, and then the obligation of the single Justice, we say, is to do no more than do again what the Magistrate said. We say the extradition from end to end is so entirely an historically administrative matter that the argument that what is administrative at the first level becomes judicial because of the body it is vested in - if you like, the chameleon principle, does not apply.

Our attack, your Honour, is firstly, apart from Aston v Irvine, we say that there is no truly considered decision of this Court which holds a review of a truly administrative decision if invested in a court, because of the fact of vesting and nothing else, becomes a judicial function and therefore supported by Chapter III. We say all the other chameleon cases, your Honour, are explicable on the basis that they are only dealing with the primary vesting which, even then, have an unsatisfactory philosophical basis which has not been discussed, at least in the last 50 years, by the Court, if at all, to say what might be judicial becomes administrative; what might be administrative becomes judicial because of its repository.

But our attack, your Honour, is not merely on the issue of primary designation. What we say is that there is no satisfactory authority of this Court unless Aston v Irvine be regarded as such authority - and we would seek to reagitate Aston v Irvine if it is such authority - and, in particular, your Honour, we say Quinn does not decide that.

Your Honour, we say all the Justices, including the Chief Justice who has been cited against us, make it clear in Quinn they were only dealing with the primary vesting and not dealing with the issue of whether or not, on the review, there would be a change in characterisation from administrative to judicial. Quinn concerned the issue of primary vesting, not the re-exercise on review once you have characterised the primary vesting.

GLEESON CJ: Is that a convenient time, Dr Griffith?

MR GRIFFITH: It is, your Honour, but could I indicate that I would be the shorter if the Court were able to review our contentions on the issue of the facts, our contentions on comment on annexure B dealing with the Federal Court proceedings and also, your Honour, the two decisions of Justice Kirby. They are our basic source documents.

GLEESON CJ: Yes. We will adjourn until 2.15.

AT 12.49 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

GLEESON CJ: Dr Griffith, in the case of Cabal there is a stay of proceedings - a stay, anyway, you know what I mean, until 4.30 this afternoon.

MR GRIFFITH: Yes, your Honour.

GLEESON CJ: We now make an order extending that to 5 o'clock this afternoon. That is not to encourage anybody to go past 4.15. It is just that we do not want to be under any undue pressure ourselves.

MR GRIFFITH: Yes, if your Honours please. I wish to say something briefly on stay at the conclusion of my submissions, your Honours. Unless your Honours will desire a split on the issue of the continuation of the stay.

GLEESON CJ: No. I might say, just to say it in passing to you and Mr Grace, I forgot to ask Mr Pagone and the Solicitor what they wanted to say, if anything, about costs, but parties might just keep that in mind for their submissions.

MR GRIFFITH: Your Honours, can I say something very briefly further about this issue of security. Mr Perry could not be a surety because he would not be qualified by being in the jurisdiction in the traditional sense of a surety. At tab 15, paragraphs 57 to 63 his Honour Justice Kirby's first decision of 29 June, his Honour makes it clear that he requires something as security in addition to what is offered as surety and indicates that he requires a security that he regards to be established in proper form for $2 million and it was that that requirement that the second application responded to with the detailed evidence as is summarised in our "SUMMARY OF FACTS ON BEHALF OF MR CABAL" to which I took your Honours.

Your Honour, we make the point that Justice Kirby accepted $2 million was the highest sum that was known to him as ever being required on a bail application speaking generally of bail. Sums such as that obviously does not grow in trees or in most persons' bank accounts. What has been offered is something that has been completely accepted by Justice Kirby as good security over bricks and mortar situated in Victoria and he says at tab 20, pages 9 to 11, that he entirely accepts the solicitor's evidence - it was unchallenged when opportunity was given - as to the adequacy of that security.

I should indicate, your Honour, that we did write to the DPP before the first hearing before Justice Kirby asking whether the DPP would concur in discussing conditions as an abstract issue in the event that Justice Kirby were minded to make an order for bail and that offer was declined. Your Honour, as to the sureties, their position is discussed in page 6, paragraph 17 to 21, of our summary as well as being exhaustively discussed in his Honour's judgment. We do say on the question of sureties in the traditional sense there is surprising depth and strength of surety given the circumstances that Mr Cabal is a stranger in Australia and has been under detention for some 30 months. Nonetheless he has impeccable, we say, sureties which were accepted as such by his Honour in their evidence which was detailed affidavit evidence which we make references in our summary, your Honour, was not challenged. That is on page 6, paragraphs 17 to 21.

Your Honours, may I make some reference then to the discussion of the Chief Justice in Zoeller. In our submission, none of these cases should be regarded as tablets from the mount. This, of course, was a case of an overnight reserved judgment by his Honour, perhaps one could say in the Christmas list, where there had not been any hearing of a special leave application and naturally enough his Honour referred to what had happened in the Federal Court. We submit that was quite appropriate for his Honour's consideration and his Honour used the expression, "It does not inspire me with the confident impression that it will be granted".

Contrast, your Honours, in another short judgment, two and a half pages in Peters 71 ALJR 309, by Justice Dawson where his Honour expressed, right-hand column at page 310, his approach - I could just read it out. Your Honours need not turn it up:

In my view the point which the applicant wishes to raise is of the kind which may attract the grant of special leave -

this is in advance of special leave.

On the material before me I certainly do not think that the applicant's case is unarguable.

That was a somewhat lower level. But what we say here is that there is the peculiar circumstance that his Honour Justice Kirby did sit on the application for special leave, did concur on the order for the matter to be referred in for hearing and, therefore, he was particularly aware - we are not, your Honour, because we merely argued it - of what was regarded as the strengths or weaknesses.

McHUGH J: That is one of the things that worries me. What appears at paragraph 36 of his Honour's judgment seems to be rather contrary to the views that were expressed on the special leave application, first of all, by Justice Gummow at page 2 where he spoke about:

I say at this stage because it occurs to us that there is always a potentiality of, as it were, a sideways movement into the original jurisdiction in any event on a constitutional ground.

But I think it is at page 8 Justice Kirby put to you:

Therefore, if we were to deal with the first point, having regard to the fact that in a sense your side could probably take that point in the original jurisdiction anyway and lift that into the Full Court and refer it to the Full Court, we may as well refer the other matter as well.

MR GRIFFITH: Could I describe what the two matters are? It may give content to it.

McHUGH J: Yes.

MR GRIFFITH: There are two issues. One which was run before Justice French, run before the Full Court, at each level unsuccessfully, is the argument that the vesting of the power to review by way of appeal to a single justice of the Federal Court and the Full Court was the vesting of administrative power and to that extent was invalid because of the operation of Chapter III. If that happened, there would be the additional inquiry which was raised on the argument for special leave as to whether the striking down of section 21 would have the effect that the whole Act fell or whether the Magistrate's determination and order would stand.

As to that, we relied upon the second reading speech which makes it quite plain that Parliament deliberately in the new Extradition Act eliminated the administrative review at that level and intentionally collapsed all review, both judicial and administrative, into this process provided for in the Act. We say as a matter of construction quite apart - reference to authorities, and we referred their Honours to Justice Dixon particularly in the Banking Case. That establishes a plain parliamentary intention that there was to be an effective review at that level of consideration at the level of review by the court to the extent our argument would be that on the collapsing of that because of reasons of constitutional validity, one would take it that Parliament's intention was that the Act should not stand without an effective review.

McHUGH J: I know, but the point I was making, Dr Griffith, was that his Honour's reasons at page 36, which seem really to be the extent of his consideration of the prospects of success of the matter, do not seem to me at all events to reflect what was said at pages 1 to 9 of the special leave transcript.

MR GRIFFITH: With respect, your Honour, his Honour - - -

McHUGH J: It is very difficult to say from the fact that it was referred into the Court that the applicant's submissions were regarded as arguable and warranting a decision by all available Justices. I mean, that is contrary to the practice of the Court. One might think that if the Court thought that the case was one for special leave, it would have granted special leave.

MR GRIFFITH: Your Honour, I cannot engage in conjecture.

McHUGH J: No, I know. I was not there either.

MR GRIFFITH: I was there, your Honour, but I was content to get a reference in and still be standing, not apprised of this issue of jurisdiction when I would have sought and perhaps would have thought I had a reasonable argument to say, "Well, why not make it special leave", because the Court has exactly the same control on the hearing to revoke special leave even if granted, just as much as it has the power to refuse special leave in a summary way on a reference in. Of course, it used to be the practice of this Court almost invariably, particularly under the industrial relation laws, to refer in orders nisi for prerogative writs rather than to grant orders nisi.

It might be regarded that this is an adaptation of the same issue. One possibility which I can only say is a possibility because on articulation on the day I elevated the second point which I was about to explain to the Court of one of construction to one of constitutional validity, namely whether it was within constitutional power to exclude the right of the Court to deal with an abuse of process issue by leading new evidence at the level of the Full Court was a matter of constitutional validity basing it on the approach of Lim that your Honour Justice Kirby referred to.

What we said is accepting Abebe goes some extent to saying one might cut down the matters on which the Court has jurisdiction, nonetheless, one has jurisdiction. Our argument was that that would include the power of the Court to deal with an abuse of process argument, which was the argument sought to be raised before Justice French and also on appeal. Because, as Justice Gummow pointed out, that argument was not fully engaged by the first notice of appeal, the Court granted leave to amend the notice of appeal - it has been amended in the annexure to our submissions - and it might have been thought that as the Court was then uncertain as to how the amended notice of appeal would be expressed, it was appropriate to have a reference in rather than an order for special leave.

We do not know, but there might have been several motivations in the Court. But his Honour Justice Kirby did make it clear in argument on 29 June that he regarded what happened as a halfway house. He did not regard it as the equivalent of special leave and - - -

McHUGH J: It raises not only that issue but another issue as to whether or not in the context of this case that is too low a bar. Speaking only for myself, it would be fairly obvious, I think, from what I said this morning, there is no problem about jurisdiction as far as I am concerned. It is all a matter of discretion and therefore the question is whether his Honour's discretion miscarried. Your weakness that I see at the moment is in paragraph 36 in so far as it may not accurately reflect what the Court did on the special leave application and, even if it did, is that a sufficiently high bar when one is considering this extradition matter in its - - -

MR GRIFFITH: Your Honour, our difficulty is that we emerged with the reference in with leave to argue all matters as if at an appeal and we cannot take it any higher other than three Justices regard it as inappropriate, dismissed and gave us the advantage of the entire Court to argue the point. Your question, your Honour, invites me to elucidate the point before this Court to indicate its strength but in the context we say - - -

McHUGH J: Not necessarily that, but whether as a matter of principle that is sufficient to deal with this issue about the prospects of success. If the case was absolutely hopeless or a Justice thought it was hopeless, you would never grant - - -

MR GRIFFITH: Justice Gummow held us over.

McHUGH J: I am talking about accepting what is said in paragraph 36, is it a sufficiently high hurdle?

MR GRIFFITH: Can I add paragraphs 35 and 36 to the first decision which you find at tab 15? That is when his Honour first considered this argument about jurisdiction - not the second decision, the first decision.

McHUGH J: No, I know.

GLEESON CJ: That is what we are looking at, paragraph 36 of the first decision.

MR GRIFFITH: I am sorry, your Honour, I thought it was a different thing. At paragraph 35 he said:

do I think it necessary for the applicants to show a change of circumstances . . . However, it is unnecessary to decide that point finally because there has been a relevant change of circumstances . . . referred . . . for argument . . . I would accept that this fact falls short of a grant of special leave . . . be no guarantee of the existence of special -

leave, let alone -

exceptional, circumstances warranting the provision of bail.

So he is not saying that that is the exceptional circumstances in itself. Then he goes on to say:

Nevertheless, it is inherent in the action of referring the matters to a Full Court to be argued as on appeal, that the applicants' submissions were regarded as arguable and warranting a decision by all available Justices. Clearly, the removal of any doubt about the validity of the Act is a matter of high constitutional and practical importance. To this extent, the order made on 22 June 2001 involved, as Mexico properly conceded, an improvement in the position of the applicants from the position which they faced when they were before Gaudron J.

Your Honours, we have the range between having special leave refused and then all things would be over, special leave granted when this argument would be avoided because one would then be able to rely on the provisions of the Act which one might, we would say, in any event if the Act is held to apply.

McHUGH J: Yes, but clearly, as his Honour says:

the removal of any doubt about the validity of the Act is a matter of high constitutional and practical importance.

But what does it have to do with this particular application?

MR GRIFFITH: Can I tell your Honour I have not got to the second ground of appeal, so I will expose that. The second matter which was also run before Mr Justice French and also on the Full Court deals with the issue of construction as to whether or not the effect of section 21(6)(d) is to exclude the Court from its capacity to receive evidence at the level of the Court which was not called before the Magistrate to expose an abuse of process by the requesting country.

With respect to that, the evidence sought to be called was that whereas the requesting country in evidence before the Magistrate said that Mr Cabal was a member of the high credit committee of the bank, which was an essential ingredient of ten of the requested offences, that proceedings in Mexico dealing with warrants and proceedings with respect to similar related facts had resulted in a nolle prosequi being entered on the grounds that he was not a member of that committee. So the evidence was sought to say that there was a proceeding in Mexico which denied the assertions made before the Magistrate.

The day after the Magistrate made the order, a nolle prosequi was entered in Mexico with respect to those related offences which required upon the same fact situation. What was sought to be called before Justice French was evidence as to that circumstance to indicate that in essence the United States of Mexico had engaged in an abuse of process before the Magistrate. The decision of Justice French which is picked up in the judgment of the Full Court [2001] FCA 427, in particular at pages 46 and 48, paragraphs 291 to 301, which is referred to in the index of materials but is not reproduced for the Court today.

McHUGH J: I have a copy of it. Is there a separate paragraph number?

MR GRIFFITH: Paragraphs 291 to 301. In essence, what the Full Court did is it upheld the decision of Justice French that section 21(6)(d) prevented Justice French receiving that evidence as to abuse of process. The point argued before Justice French and on - - -

GUMMOW J: Whose process?

MR GRIFFITH: Abuse of process by the Mexican United States.

GUMMOW J: No, no. Of whose process?

MR GRIFFITH: The process of the application before the Magistrate and the abuse of process sought to be established before the judge. The provision before the Magistrate was administrative, before the judge it was judicial.

GUMMOW J: Courts have processes.

MR GRIFFITH: Your Honour, it was before Justice French and Justice French held that the - - -

GUMMOW J: Administrators do not have process, do they?

MR GRIFFITH: Before Justice French it is put, your Honour, and section 21(6)(d) was held by Justice French to prevent him receiving that evidence as to an abuse of process alleged to be occurring in his court on the review. The Full Court upheld that and that was the second ground of appeal raised by the documents in support of the application for special - - -

GUMMOW J: The abuse before Justice French being what?

MR GRIFFITH: The evidence, your Honour, that the proceedings in Mexico - - -

GUMMOW J: You were the moving party before Justice French.

MR GRIFFITH: Yes, your Honour.

GUMMOW J: You had invoked his process.

MR GRIFFITH: We invoked the process.

GUMMOW J: You were not abusing it.

MR GRIFFITH: Your Honour, what we sought to establish was that there would be an abuse by the respondent not to disclose the situation when it was claiming on the basis of evidence before the Magistrate that Mr Cabal was a member of this committee. What we say is, your Honour, in those circumstances, the principles of abuse of process can be invoked against a respondent who is seeking to obtain the benefit of a court order. We say there would be an obligation to disclose this and we say in the circumstances, your Honour, the very next day after the Magistrate signed the warrant the formal proceedings in Mexico - - -

GUMMOW J: Sorry, the respondent seeking to obtain the benefit of a court order?

MR GRIFFITH: Yes, your Honour, namely the dismissal of the appeal, and we say it should disclose the change in fact situations just as any counsel would be obliged to disclose such things, your Honour, but we were not allowed to bring - - -

GUMMOW J: But that throws you onto the nature of the subject matter in the Federal Court, does it not?

MR GRIFFITH: Yes, your Honour. We say the subject matter of the - - -

GUMMOW J: And you then have to say that is artificially constrained and impermissibly constitutionally restrained - - -

MR GRIFFITH: Yes, your Honour.

GUMMOW J: - - - or is not constrained because of some statutory interpretation which you say gives you sufficient width to agitate that matter.

MR GRIFFITH: We do, your Honour.

McHUGH J: It seems to me it also means an attack on Abebe, does it not?

MR GRIFFITH: Your Honour, that is an issue which was raised at the special leave level and that may be so, but we would make the distinction between Abebe going with narrowing of matters over which the Court has jurisdiction and this case where the provision is interpreted to exclude the raising of an argument of abuse of process. We say that is so inherent in the exercise of judicial power that that cannot be excluded.

McHUGH J: But is not one of the grounds of exclusion under the Migration Act breach of the rules of natural justice?

MR GRIFFITH: Well, your Honour, this is not natural justice. We say this is abuse of process in the Federal Court. We are happy to engage issues of relationship of Abebe. That is the matters of constitutional importance which are identified. On the first argument, one says it is just a matter of construction and you do not read section 21(6)(d) in that manner. If that is correct, then there is an error at the level of the Full Court which should be corrected. If that is not correct, if it does exclude the evidence, then we elevate it to constitutional level to say, as for Lim, it is not possible to exclude that jurisdiction. That was the additional point raised in argument which was the subject matter of the further amendment to the notice of appeal.

On that argument there is a direct chain back to the original proceeding before Justice French which was a subject matter of challenge and what we say in circumstances where the matter now has been reserved for seven Justices, or whatever number sit, to consider it. We say that is sufficient to take it far out of the ruck of application in advance of special leave, although it does not take it into the level of the actual grant of special leave.

McHUGH J: No, but you have a case where the applicant is a fugitive from justice. There is no attack on the merits and you want him to be released ahead of the Court considering the application. In those circumstances, I would have thought as a matter of principle that you would need to show a reasonably strong prospect of ultimate success in the litigation. If one came to the view that Justice Kirby erred in the exercise of his discretion, then on one view we would have to exercise the discretion ourselves and look at these matters.

MR GRIFFITH: I am not inviting the Court to do that.

McHUGH J: You are?

MR GRIFFITH: I am not, because, once one gets to jurisdiction, we say it is appropriate to have regard to the detailed consideration given by Justice Kirby with regard to all the evidence over two days.

McHUGH J: No, but if you came to the view that his Honour had erred in the exercise of his discretion because he had set the question of reasonable prospects of success at too low a level, then his decision must be set aside. The alternative is that it either be sent back to his Honour or some other Justice of the Court to deal with or we deal with it ourselves.

MR GRIFFITH: Justice Dawson, for example, has said just arguable is sufficient in advance of special leave, but that is all at single Justice level.

McHUGH J: Yes, but that was in a criminal case and it was in a case where the sentence would expire the day before the special leave - - -

MR GRIFFITH: His Honour made the point about sentences expiring. We say that is not decisive.

McHUGH J: Yes, I know, but the point is this is a different class of case.

MR GRIFFITH: Of course it is, your Honour. We say it should be an easier class on that issue of threshold because of the circumstance that Mr Cabal is not a convicted person. There is a presumption of innocence, contrary to what my learned friend said. He is not able to challenge under section 19(6) the truth of the allegations. He is able to challenge other matters, including the issue of whether it is a political fence, and he is able to challenge constitutional validity.

McHUGH J: Yes, I know, but the object of the Act is that, once a warrant is made, he is to be taken into custody and there is, one might say, a presumption against bail, having regard to the terms of the legislation, either if you are acting under the Act or whether you are acting under our section 73 jurisdiction, one would have thought that you have to make out a reasonably strong case that you are likely to succeed. It is not necessarily decisive because there are other factors and in this particular case it seems every Judge who has considered the matter has been appalled at the conditions under which these applicants are held.

MR GRIFFITH: And only Justice Kirby has done something about it.

McHUGH J: That may be, but the question is: has he done it legally?

MR GRIFFITH: The answer, we say with respect, is that he has. There are not all that many cases on extradition. Zoeller is an example of it where the Chief Justice in the particular circumstances in advance of special leave seemed to contemplate that if he had a confident impression that special leave would be granted. That was his approach. In a different situation I have referred to what Justice Dawson said in a criminal matter in advance of special leave. In our submission, one cannot get to the position in the unusual circumstances of this case to say there will be success on the merits, because that in effect is to put the trial in advance of the application for bail which one would never get to because, when one has surety of knowledge on that issue, one has already had the hearing on the merits. It is a question of what is it appropriate with a balancing process? The approach of Justice Kirby, with respect, is correct to the extent that he did not hold this as the exceptional circumstance triggering it. He held a raft of matters of exceptional - - -

McHUGH J: I thought he did at some stage, did he not, in a paragraph late in his judgment? He said this was the exceptional circumstance.

MR GRIFFITH: He indicated that we would have been dead in the water without it, and we accept that. That is why Justice Gaudron held over the initial hearing of the application which was brought on after the application for special leave. He says it is critical to the conclusion in paragraph 40.

McHUGH J: Yes, critical to the conclusion.

MR GRIFFITH: Of course it is, your Honour. You cannot go any further if you do not make some advance on the special leave hearing.

McHUGH J: Yes, but his Honour said:

Nevertheless, in my view "exceptional circumstances" have been established . . . Critical to this conclusion is the action taken on 22 June 2001 to refer the proceedings into the Full Court.

MR GRIFFITH: But not decisive, your Honour.

McHUGH J: No, but it refers you back to paragraph 36 and that is the question. Anyway, this is the matter that is troubling me.

MR GRIFFITH: Of course. It is setting the bar. What we say is that bail applications are not all that apposite and they are single instance. One does not see in criminal law matters a requirement to say it looks like you must win. Chief Justice Mason certainly does not say that in an extradition situation and certainly Justice Dawson does not say that and neither do other of the Justices of this Court that are summarised in Justice Kirby's consideration.

McHUGH J: Yes, because ordinarily, unless the sentence is about to expire, you just do not get off the ground in a bail.

MR GRIFFITH: Of course you do not, your Honour. What is put against us is that we are undergoing the equivalent of a sentence. With respect, that is not so. Apart from this issue of gap in the jurisdiction, we are detained under the terms of the Extradition Act which are very strict, but by the requirements contemplated under section 53, that detention will be on remand only in circumstances where on full examination Justice Kirby, looking at the evidence which was before him - and, with respect, on this appeal the only evidence before the Court is that which was before Justice Kirby when the parties had a full opportunity to bring it before him, not picked up through casual reference before other Justices in other circumstances in the Federal Court.

Our submission with respect to that is that it is just not permissible for this Court to have regard to the earlier examinations in the way the analysis of my learned friend's annexure B runs. We have put in notes in answer but what we say is that the parties are perfectly apprised of their positions. The United States of Mexico and the Commonwealth had a complete opportunity to put its entire case before Justice Kirby and it is only that evidence to which regard should be had. We say step by step and certainly to a far more exhaustive extent than that engaged in by the Chief Justice in Zoeller, Justice Kirby has had regard to these range of circumstances which include the issue of continued confinement. It is put against us on the basis that there is no example of any release.

We say that there is no example that any person held for extradition contemplated by section 53 to be in circumstances of merely remand has ever been held in such sort of custody for any period as have Mr Pasini and Mr Cabal, who continues to be held in those circumstances. His Honour found as a fact that has had the effect of crushing him. He has found as a fact the evidence of Mr Cummins that he is at the same level of psychological state as Mr Pasini was found when released by Justice Gray. He has found as a fact that there has been a change in the circumstances as to risk of flight because of his examination of the situation with respect to Mexico.

There was evidence before him which establishes a fact before him that Mr Cabal is not even liable to arrest when he goes back, that he has lodged $US500,000 in bail which entitles him, were he to return, not to be arrested with respect to any of these outstanding charges. He has found sureties of impeccable character were prepared to support him. He has required a security of $2 million which he is satisfied has been furnished in effective form. He has found a raft of exceptional circumstances which, in our submission, could be regarded as involving no misdirection so far as the exercise of a discretion is concerned.

So that when one looks at the essence of the argument put against us, the argument is one in fact, if not in form, that there is no inherent power in this Court to release on bail a person the subject matter of a warrant under attack in this Court in advance of special leave. That is the reality of it and my learned friend Mr Pagone was unable to give any example of what might be conceded as necessity other than one of ill-health. Of course, that could not be a good example because there are prison facilities for hospitals. There are facilities when one is detained in prison to remain in detention even if being subject matter to the most stringent medical procedure.

So that, your Honours, in the absence of any examples, my learned friends are putting a postulation which was explicit, we would submit, that there is no power in the Court in any circumstance to act in advance of an order for special leave to order release under bail.

McHUGH J: Speaking for myself, having heard the arguments of your opponents and having read the submissions, there is no substance in that.

MR GRIFFITH: What we say is this appeal was three quarters about power, one quarter about discretion.

McHUGH J: It is all about discretion as far as I am concerned as to whether his Honour has made any error, and that is the beginning and end of it.

MR GRIFFITH: We would say if that is the beginning and end of it, that is the end of it, because you could have not had more exhaustive consideration on full opportunity and full argument than Justice Kirby did. He heard argument from 3 am to 8 pm.

McHUGH J: 3 am?

MR GRIFFITH: Sorry, 3 pm.

McHUGH J: That is very early even for his Honour to start.

MR GRIFFITH: It seemed like that, your Honour - 3 pm to 8 pm on 28 June.

GUMMOW J: What does that have to do with it?

MR GRIFFITH: It is full consideration, your Honour.

GUMMOW J: Of course it is. One would not expect anything less.

MR GRIFFITH: Yes, but he is considering - - -

GUMMOW J: The question is was or was there not any error?

MR GRIFFITH: We say the only possible error to be identified - - -

GUMMOW J: Lots of trials that go on for months and months involve very full consideration and get off the rails.

MR GRIFFITH: It is the issue of the exercise of a discretion.

GUMMOW J: It is just rhetorical flourish.

MR GRIFFITH: Mine?

GUMMOW J: Yes.

MR GRIFFITH: It is meant to be a brick to a submission, if your Honour pleases, so if I could stand on that brick and stand a bit taller, our submission is that there can be no demonstrated error unless this Court considering as a Full Court the first time this issue of exercise of inherent jurisdiction in respect of either a criminal bail matter, which this is not, or a matter under the Extradition Act, which it is, takes a view that in the very unusual circumstances an application not in advance of a special leave application but after a special leave matter has been referred in whether Justice Kirby, who must be regarded as fully apprised as to the consideration of that issue by the particular court referring in the special leave, has fallen into error in failing to express exhaustively his reasons by reference to which he holds that the fact of surviving the application for special leave means that you still may approach the Court to request special leave.

We say that Justice Kirby is not saying that in itself is the exceptional circumstances justifying bail. What he is saying is if you did not have that, then you would not have any chance. That much is accepted. So, for example, in transcript in argument on page 127 you find at tab 14, his Honour said:

It is not in truth a grant of special leave but nor is it a dismissal; it is something in between . . . none of us who were participating in the special leave application on 22 June, certainly no counsel, addressed themselves to this particular significance of whether the special leave would be granted or not granted.

That is accepted. The matter was not raised and I can only engage in conjecture that if it had quickly been raised when we were receiving with, one could say, delight the order that we were still standing and could come before the Full Court, could we have persuaded the Court to grant special leave? His Honour Justice Gleeson indicated that if I now apply in the face of this Court, it may be that I put myself at risk for special leave to be revoked. Perhaps one answer to that might be - - -

GLEESON CJ: No, it may be that if you just made a fresh application for special leave to appeal, we would deal with it.

MR GRIFFITH: Now? We would say it would be difficult to revoke it or dismiss it because of the circumstance this Court does not have all the papers before it. We would say the only order reasonably open to the Court was to say that it is an appropriate way to deal with the technical jurisdictional argument which in any event the Court could deal with by upholding my submission that in any event the Extradition Act engages under section 19(6).

GLEESON CJ: But I do not understand you to have made or to be making an application for us to consider whether or not there should be a grant of special leave to appeal in this case.

MR GRIFFITH: I was contemplating it, your Honour, but in the circumstances I take the view it is unnecessary to do so because we say that you are left in the same situation of the Court could construe the Extradition Act to say that it makes no difference because the Extradition Act applies in any event and the approach of Justice Kirby can be regarded as much as consideration of the statutory jurisdiction on that construction, if it be right, as on the application of the inherent jurisdiction.

Alternatively, your Honours, we say that in the context that the Extradition Act itself contemplates, that there may, at the level of the High Court as much as the court anterior to that Court, be a grant of bail in truly exceptional circumstances. That grant of bail under the Act is not predicated upon issues of futility or issues of saving the subject matter or any other of the restrictive ways which are postulated by my learned friends as excluding the application in bail. We say it would be quite inconsistent with the breadth of the special leave power, with the breadth of the inherent power, to narrow that power by reference to restrictions which are not even articulated in the primary Extradition Act itself.

The Extradition Act does not limit the power to grant bail to circumstances such as those which are postulated and we would submit there is no occasion for the Court by implication to take a narrow view or one could put it, to raise the bar to a level that one must say that there is an element of satisfaction that the special leave application will be successful and the appeal allowed. That is an inquiry that we would say certainly counsel making submissions cannot answer. We would say, with respect, three Justices of the Court cannot answer that. It requires, one would suppose, seven Justices in this matter to determine that.

So were this entire Court of three against me, it is still possible that there are four Justices that could be of a contrary view given the nature of the underlying issue which involves whether or not the matter reserved in Quinn as to the changing of character on an appeal, because it is vested in a judicial body rather than an administrative body, is sufficient in itself to change the characterisation. Quinn did not decide that. Aston v Irvine might be regarded as being authorities some 50 years old that suggest that but, in our submission, that is the very issue identified for serious argument before this Court. As Justice Kirby says, a matter of high constitutional importance.

It is not just limited to the issue of the Extradition Act because it is an issue that goes generally to what is put against us as it was in the submissions on special leave as a matter which it is said is comfortably covered by existing authority by reference to the expression "chameleon" used by Justice Aickin in the Bayer Case. Remembering the Bayer Case, Justice Aickin even then would seem to have only been disposed to have gone along with the result because he was bound by authority. In those circumstances, our submission is that the level of reference by Justice Kirby is quite sufficient as a matter of law to have no appealable error to say that he has acted beyond his jurisdiction by not seeking to be satisfied that the application of special leave was at a level which not only would in due course result in a grant of special leave but it might have a likelihood of success.

It is not possible to take it that far and, with respect, none of the single Justice's examination of that issue have sought to do so. Unless that be the identified error, in our submission, there can be no basis to interfere by reference to appeal having regard to the principles of House v The King in any other matter of his Honour's consideration of that matter, particularly having regard to the nature of his judgment delivered soon after argument and sufficiently summarising his consideration of the issue.

Your Honours, with respect to the structure of the Act, in our submission, section 21 does not result in the final determination even of the issue of whether or not Mr Cabal is an eligible person. Although Justice French was required on review to consider the issue of whether or not there was a reference to political opinions under section 7 of the Act to constitute an extradition objection, the decision of the court on that issue in review of the Magistrate's decision is in no way final. There is no final determination resulting from the dismissal of an appeal that a person is an eligible person or allowing of an appeal by a requesting State so that there is a finding that a person becomes an eligible person because section 22 then submits that exact same issue for the political determination of the Attorney-General.

The Attorney-General is in no way bound by any decision of the Magistrate or any confirmation or substitution of decision by the court and is unable to have regard to all or any or new circumstances to form his own view as to whether or not the person is an eligible person and, in any event, to have a, more or less, unqualified, only subject to administrative review once, I suppose, on the basis of the person affected, in determining whether or not there should be a surrender warrant issued. We rely on that, your Honours, as confirming very much the administrative nature of the process.

But when one is defining what is the subject matter, with respect, your Honour, the subject matter is not the subject matter of the return of the person as an eligible person. The only subject matter is whether or not, for the transient purposes of the operation of section 21, which merely enable, if there is an answer, "Yes, that person is an eligible person", section 22 processes to be engaged at a political level, is articulated. On that basis, your Honours, we say my learned friend's attempt to define the subject matter by reference to the fact that a person is to be extradited as an eligible person is a misdescription. It is the issue of whether or not, at a limited step in the process, the person should go on through the process which afterwards becomes entirely political in its character, subject only to administrative review.

Now, your Honours, can I uplift, by reference, paragraphs 8 to 22 of our written submissions? They deal primarily with this issue of jurisdiction and there is no occasion for me to take your Honours through them. But, your Honours, I would wish to deal with the questions of stay because that is a matter which concerns my client in particular. For him, your Honours, the subject matter of these proceedings is whether or not the stay ordered, with respect to Justice Kirby's order for his release, is to be continued or not.

He has, your Honour, been now subject matter of detention under the circumstances found by Justice Kirby for some 30 months. Justice Kirby has found that he is at the point of being crushed by it. He has found also that the risk of flight is tolerably small and also that the conditions that he has tailored have satisfied Justice Kirby, so far as one may reasonably do so, that the risk of flight is reduced to the level of tolerably small.

Now, if it is put it is just another stay, the position has been reached, your Honours, that after numerous applications, for the first time an order has been made for release on bail on suitably confined terms. That order was made on 19 July. effectively, your Honours, it has been now - and that was made in contemplation it would only run until 6 September because Justice Kirby regarded that as the expected date, which has now been confirmed, but that was the period that he expected it to run for and we accept that is the term for which it runs, that the order will expire at 10.00 am on 6 September and then be subject to any further direction from this Court. So that Justice Kirby's order will have no further effect other than it might be continued by order of this Court during the special leave hearing and afterwards.

Your Honours, in that context, almost two weeks have expired since Mr Cabal was intended to have the benefit of that order. We, your Honours, are not in a position to know how long the Court may take to consider its judgment on this issue as a Full Court in a matter where Justice Gummow has pointed out these issues of bail under the Extradition Act, or, indeed, generally criminal bail, have not been considered at the level of a Full Court. It is our submission, your Honours, that that consideration of a matter which might be regarded as of high constitutional concern should not be one which continued on the basis of a preservation of other than a status quo established by the order of Justice Kirby.

Your Honours, the effect of continuation will be that the position for Mr Cabal will be that the period between now and 6 September effectively will come to be bridged a bit like a unilateral cantilever building the Sydney Harbour Bridge from one side. Your Honours, to the argument, "It is just another few days", the answer is, "Well, we do not know how long it is". But, your Honours, Mr Cabal's submissions to the Court on that issue is that just another day for him now is a lifetime and Justice Kirby has made findings with respect of that to indicate that, having regard to the psychological evidence, he accepts the submission that with the continuation of this detention for some 30 months, it is to the point where Mr Cabal is to be regarded as being crushed by the circumstances of his detention which Justice Kirby quite rightly held did not reflect the parliamentary intention in section 53 of the Act that there should be only detention on the basis of remand.

McHUGH J: It troubles me as to what extent these matters are relevant on the exercise of this discretion. Given that the purpose of the Act is to require the detention of a person who has been held to be an extraditable person so as to make it more probable than not that that person will be returned to an extradition country, may not the right question to ask be, "Are the circumstances of the case such that the release of the prisoner on bail would not be inconsistent with that purpose of the Act?".

MR GRIFFITH: Your Honour, we say the Act embraces too completely the situation that in special circumstances, to be equated to exceptional circumstances, your Honour, there may be release on bail. Now, your Honours, that is a matter which has been considered and an order made. My submissions at the moment go to the issue as to while the Court is considering the issue your Honour postulates, should it adopt the position of maintaining a status quo, that Mr Cabal should not have the benefit of Justice Kirby's order stay, or should it consider the matter, your Honours, on the basis that Justice Kirby's orders continue until such time as the Court makes judgment on this issue.

McHUGH J: But do you accept that you could not make an order for release on bail if it would be inconsistent with the purposes of the Act?

MR GRIFFITH: Your Honour, it is a question of what is contained in your last - - -

McHUGH J: Well, exactly, and if you accept that, then the question is to define what are the purposes - - -

MR GRIFFITH: Well, your Honour, to go to that, what we say is the Act makes quite clear, your Honour, that one can have a release on bail at the level of the High Court after special leave has been granted. It makes it quite clear that exceptional power in special circumstances, as the Act was amended, is not predicated upon such restrictions that it is submitted the Court should apply with respect to the exercise of its inherent jurisdiction. What we say to that extent, your Honour, the underlying purposes of the Act are at a looser level of test than that which is put by my learned friends as restricting, for the purposes of their argument, that they expect the Court to uphold as to the approach.

We say, your Honour, it is sufficient for our purposes to say that the inherent power should be regarded as reflecting the express provisions of the Act that in special circumstances, which we equate to exceptional circumstances, there may be release at the level of consideration of special leave.

McHUGH J: At the moment I am not sure whether the two tests are the same. I am rather inclined to the view that they may really be quite different. You may be in a better position, under the Act, if you succeed on your purpose of construction - - -

MR GRIFFITH: Yes. Well, your Honour, we would hope that would just mean that everything would fall away and, in a real sense, the Court would act in a practical way and say, "Well, there is jurisdiction and, in the circumstances, we can accept that there is no reason to set aside Justice Kirby's determination made by reference to what he regarded as the inherent power". But our submission is, your Honour, that there is no occasion, in the particular circumstances of this matter, to restrict the inherent power to something which is less than that which is permitted under the Extradition Act by reference to its express terms when they are engaged, assuming the Court is against me on the construction issue.

We say, your Honours, there is no - the fountain, as your Honour Justice McHugh pointed out, the issue of injustice and justice, what is appropriate, and although the scales are so highly calibrated against release, what we say is that there is a plenitude of evidence that establishes why they should be regarded in the extended circumstances of Mr Cabal's detention; the changed circumstances of his relationship to the extradition process; the circumstances of the sureties; the circumstances of the security; the fact that persons of repute are prepared to stand there as sureties for him; the evidence, your Honour, of the crushing psychological damage that he and his family is continuing to suffer, on a daily basis, your Honours - this is a daily matter. It is not a matter of just another week. It is a matter, your Honours, on my instructions, that the applicant is about to be broken by this. It is at that level, and that is what Justice - I am not saying that from the Bar table, your Honour. I am saying that is what Justice Kirby determined in his anxious consideration of these issues as an urgent matter.

Our submission is, your Honour, in that context, it is appropriate for the Court to say, "Having regard to all the circumstances, we should regard the status quo, while we are considering this matter, as a matter of constitutional moment, to regard the status quo as continuing Justice Kirby's order", in a situation where Justice Kirby has expressed a view, with the changed circumstances and the conditions attached, the risk of flight is tolerably small. It is quite different, your Honours, from being a fugitive at the time when he was arrested. Matters have moved on beyond that. That was exhaustively considered by Justice Kirby and we say they are matters to be weighed in the balance by the Court against what might be regarded as the ordinary inertia to say, "Well, we should continue matters as they were while we are considering our decision on the merits".

McHUGH J: I have some difficulty about most of the matters that his Honour has taken into account as minimising the risk. I would have thought that the only factor that made the risk tolerably small were the reporting conditions. The fact that the 2 million has been given does not seem to me to be - - -

MR GRIFFITH: Your Honour, the changed circumstances of Mexico are very significant. It is established, your Honour, that the main charge of money laundering has gone; the taxation offences have gone, subject to appeal. There is this argument, your Honour, that the issue of nolle prosequi of the abuse issue will mean that the 10 banking offences could well go. There is the uncontradicted evidence, your Honour, that $500,000 has been lodged as bail, including $US100,000 cash in Mexican money, your Honour, plus a property that belongs to Mrs Cabal for 400,000, which enables Mr Cabal to step off an aeroplane and walk through the terminal as a free man not liable to be arrested. It is all different. So that, your Honour, those are matters which the summary of fact shows were all before Justice Kirby in assessing the situation.

Your Honour, one would understand nowadays anyone can go and get a passport almost anywhere, so that the evidence that this man did have various passports when arrested is very much water under the bridge. What Justice Kirby did is to assess the situation, your Honour, by reference of the present situation and he said the risk is tolerably small. He spelt out why. The evidence which we summarise spells that out, your Honour, so that a rational assessment would seem very much to be reflected in his Honour Justice Kirby's judgment, but we must - - -

GLEESON CJ: On the question of the risk of flight, in the light of what you say is the position in Mexico, one thing we know is that with all the burdens it is bringing on him, his preference is to remain in Australia rather than go back to Mexico.

MR GRIFFITH: You do not know that, your Honour. I hear on my left, "Why does he not go home?". He wishes to go home, your Honour, as a non-extradited person. He is not running this to stop him going home, your Honour, he is running this to stop him being extradited. There has been a sea change in the underlying charges, your Honour, where, in effect, he would say the book was thrown at him - his evidence is for political reasons, but that is by the by, your Honour - where, now, the evidence of Alberto Zinser, his lawyer, is that there is only residual charges that Mr Cabal has deposed he believes that he is able to defeat and, your Honour, the evidence is that he has lodged bail that entitles him to fight those charges without arrest when he returns home.

So your Honour should make no assumption that he does not wish to go home. Were I able to give evidence, I could give evidence from the Bar table he wishes to go home, your Honour, but not as an extradited person.

GUMMOW J: What is the distinction at the other end?

MR GRIFFITH: The distinction, your Honour, is one, is not the headline, "Cabal returned in handcuffs as an extradited person".

GUMMOW J: That is the only distinction, is it?

MR GRIFFITH: There is another difference, your Honour. If you are extradited, well then you have the specialty limitation on any charges - - -

McHUGH J: But if he cannot be arrested in Mexico, how can they take him into custody?

MR GRIFFITH: They cannot when he goes home, your Honour. They can take him into custody until he arrives in Mexico City Airport, then he walks.

McHUGH J: Yes.

GUMMOW J: But if he arrives as an extradited person, he has the benefit of the speciality, does he not?

MR GRIFFITH: Yes, he does, your Honour.

GUMMOW J: Which he would otherwise lose?

MR GRIFFITH: Well, that is his assessment as to whether he needs it, your Honour. Circumstances change in seven years, but at the moment, your Honours - - -

GUMMOW J: There is no other relevant distinction, in law, at any rate.

MR GRIFFITH: The specialty defence is the main one, your Honour.

GUMMOW J: The only relevant distinction in law is one that favours your client.

MR GRIFFITH: Yes, your Honour, but it is the case, your Honours - and that is the evidence which is in the volumes your Honours have - that he has paid the bail. He has the document which entitles him - he must return in the custody of an officer under the terms of the Extradition Act, but his position, your Honour, and it is verified by Mr Zinser, is that when he lands at Mexico City, he just walks through and walks out. He cannot be arrested. That is his understanding of it and Mr Zinser confirms it. So the other matter, your Honour, is that the security offered is the matrimonial home. The evidence is Mr Perry bought it to provide - - -

GUMMOW J: The present matrimonial home.

MR GRIFFITH: Well, it is the present one, your Honour.

McHUGH J: Yes, but if the case for Mexico is right, the sum of 2 million is trivial. I mean, he has $A478 million somewhere or other in the world, according to Mexico - - -

MR GRIFFITH: Not at all, your Honour. May I take objection to that, your Honour. Those charges say that bank moneys were used in connection with a takeover. The evidence is not that Mr Cabal has it. That is bandied about, your Honour, but it is not so.

McHUGH J: In any event, he has very substantial sums of money available to him on the Mexican case.

MR GRIFFITH: Well, not to pay my fees, your Honour, but one does not know. One cannot make assumptions, your Honour. One cannot make assumptions. Mr Perry said - and this is left out of the inadmissible evidence that is produced on the stay application - that not only has he advanced 2.4 million to buy this house, he has given him $1 million for his Australian legal costs. One would wish one had friends like that. But that is the evidence of Mr Perry given on video link which was accepted by Justice Kirby. But the Court should make no assumptions, your Honours, that there is unlimited means there, none whatsoever.

McHUGH J: Well, where did I get the impression that there is some 478 million - - -

MR GRIFFITH: Your Honour, it is alleged that he controlled the bank through this high credit committee and that moneys of the bank were used improperly, but that is not to say that he has taken it and, your Honour, the existing banking charges seem to be based on the allegation that he was a member of the committee which he says is established under these other proceedings that he was not, for the purpose of the nolle prosequi entered there, and authorised the bank's moneys to be used, I think, your Honour, for the purpose of a takeover, which should not have been used.

The money laundering charge has gone, your Honour. So that, one cannot make any assumptions that there is anything here that sticks, but the important thing is, your Honour, the evidence of Mr Cabal in his affidavit, which is part of the pages before the Court, and Mr Zinser supports that, your Honour, as his apprehension is that he really has very little to fear when he goes back and he certainly cannot be arrested, to his mind. So, your Honours, no assumption should be made that the purpose of these proceedings is to avoid a return to Mexico. The purpose of these proceedings is to establish, as is his right, your Honour, that he is not subject to extradition to Mexico.

McHUGH J: Let us leave aside the 478 million. Is there not evidence that he had available to him a line of credit of 110 million from a bank in Switzerland? And if he has 110 million available to him, what difference would the fact that somebody is going to do 2 million - he would reimburse Mr Perry for his 2 million.

MR GRIFFITH: Well, your Honour, we deny the first as being any evidence that he has now available 100 million, but the answer is - - -

McHUGH J: I thought there was evidence in front of the Magistrate.

MR GRIFFITH: That is on page 2 of our summary, your Honour.

McHUGH J: Is this the reply attachment?

MR GRIFFITH: Of our reply to attachment B, yes, your Honour.

GUMMOW J: Paragraph?

MR GRIFFITH: Paragraph 3. But, your Honour, this is just an assertion in the air, but, your Honours, the reality - - -

GUMMOW J: He gave evidence, it says, "that he did not draw it down", not that he did not have it.

MR GRIFFITH: He does not say he still has it, your Honour.

GUMMOW J: Well, quite.

MR GRIFFITH: But, your Honours, it is not a question of, "Has he means available?". It is a question of looking at all the evidence, "Is he going to engage in flight?". The answer is, your Honours, he has been separated from his wife and family for 30 months. They are living in this house in Melbourne. He wants to be with - - -

McHUGH J: But he was separated for more than 12 months when he was on the run overseas.

MR GRIFFITH: Your Honour, that is contested also. Your Honour, these are just - - -

McHUGH J: The only reason I am referring to these matters is it would seem to me that the strength of your case about the risk being tolerably smaller is confined to the reporting conditions, not these other - - -

MR GRIFFITH: Your Honour, I say it is confirmed by his view, confirmed by Mr Zinser, who is his Mexican lawyer and present in Court today, your Honour, and a deponent, to say that things are going swimmingly good in Mexico. He has more or less beaten the rap. So that he has no reason to flee the jurisdiction other than to go to Mexico and get on with his life, but he does not wish to go as an extradited person. To pursue his rights, your Honour, he is undergoing now for 30 months his continued incarceration and distressing separation from his family that has made him a clinically depressed person to the level, as the uncontradicted evidence from Mr Cummins indicates, that was suffice to justify Mr Pasini's release even before Justice Gray.

Your Honours, with respect, it is not possible for this Court to get to a point of satisfaction on these issues. That was the process to be engaged in by Justice Kirby when each party had the opportunity to bring forth all their evidence, having known through these earlier proceedings what was the position of each party. That is what they did, your Honours. The United States of Mexico did not bring forward detailed evidence about this matter except making, as they do now, your Honour, a jump back to references to what was agitated years ago in the Federal Court. With respect, your Honours, firstly, that is not admissible; secondly, it is not before this Court; thirdly, it is prejudicial; and, fourthly, it should not substitute for the consideration merely of the evidence which was before Justice Kirby.

So the fact that your Honours can say these things indicates, your Honours, how hearsay, we say, is being agitated in a prejudicial way when what should be determined here is the actual evidence in the three volumes which were before Justice Kirby, which are the subject matter of the index and which your Honours have, which we have fairly summarised in our summary of the evidence. Your Honour, it is significant that the risk of flight dealing with these charges, in effect, we say, removes this apprehension that Mr Cabal is on the wing. The only wing he wishes to get to, your Honour, is to the bosom of his family. When this issue of extradition is resolved, your Honour, he wishes to go back to Mexico, with confidence he will not be arrested.

Your Honours, it is certainly the case at tab 20, page 9, Justice Kirby did rely upon the conditions. He relied upon also the sureties. He relied upon Mr Perry's assessment of him as a person. He relied upon Mr Perry being prepared to put even, for Mr Perry is a wealthy man, 2 million on the line which could be vulnerable if he merely failed to report once out of the reporting conditions. All those things were assessed by Justice Kirby. So that we say your Honours should not adopt a situation of, "Is the status quo a stay or not a stay?", from the point of view of general prejudice, as has arisen from my learned friends casting back to earlier considerations by the Federal Court.

Justice Kirby said that was not appropriate and, with respect, it cannot be done because the Court does not have any evidence about that at all. It has the evidence before Justice Kirby and we say there is no demonstrated error in his Honour's assessment. So that, with respect, we would submit that unless it is the case that this Court, at this level, articulates with respect to issues of application for bail in an extradition matter before the grant of special leave, there is a gap in the application of the Extradition Act and the requirements for the exercise of inherent jurisdiction there are peculiarly circumscribed in a way that seems inappropriate for the nature of the jurisdiction or for reflecting the corresponding requirements of the Act were it engaged. In our submission, your Honours, there can be no basis for assailing Justice Kirby's judgment.

If the Court has a residual doubt on that issue and desires an opportunity to consider it, in our submission, your Honours, it is still appropriate that the stay should not be continued. If the Court now is resolved upon the result, in our submission, it is appropriate for the Court to dismiss the appeal and give its reasons later. So that, in that way, without any further order, the order of Justice Kirby may be given effect.

Your Honours, the residual submission, if the Court is against me on all that and wishes to reserve and wishes to continue the stay, we would ask the Court to, on the result, if not in the reasons, to make that a minimum period and, your Honours, it is the case, on my instructions, that "minimum" means "minimum", because otherwise the subject matter might, I am instructed, disappear, to the extent, your Honours, that my instructions are the position of Mr Cabal, personally, are now so intolerable that he is not able to maintain his position for even days.

Now, your Honours, if your Honours are minded not to lift the stay during consideration, at the very least our residual position would be that your Honours should direct the DPP and other authorities to co-operate with respect to the provisions of the paperwork, so that were the stay removed, then matters could immediately be implemented, because otherwise, your Honours, it is plain that there could be delays of further days or even longer.

McHUGH J: Sorry, I do not follow that, Dr Griffith.

MR GRIFFITH: Well, if the stay is lifted, your Honour, there is still the necessity to do all the paperwork to obtain the recognisance. It has to be drafted.

McHUGH J: Yes, I understand that.

MR GRIFFITH: I handed to the Court last week, but your Honour was not here, the former recognisance which was drafted up by the DPP for Mr Pasini that remains in force, and just these mechanical things will take days.

McHUGH J: Yes, I understand.

MR GRIFFITH: Yes. So, that is very much alternative last submission, but we would submit, your Honours, that it is appropriate if the Court certainly is minded not to allow the appeal, to announce a decision now and that obviates the stay issue. If the Court decides to reserve on that, we request for the reasons stated that the stay not to be maintained.

GUMMOW J: Now, the application that Justice Kirby made his orders in respect of on 19 July, was a summons filed on 12 July - that is right, is it not, your summons of 12 July? I think it is tab 16 in the materials.

MR GRIFFITH: That is right, yes.

GUMMOW J: Yes. Now, the earlier one - - -

MR GRIFFITH: That is 28 May?

GUMMOW J: Yes - had been dismissed as regards your client.

MR GRIFFITH: It was dismissed, yes.

GUMMOW J: Yes. So there was a fresh application.

MR GRIFFITH: There was, your Honour, yes.

GUMMOW J: And you joined the Attorney for the Commonwealth as third respondent.

MR GRIFFITH: Yes, that is because he appeared, your Honour, on the special leave, so he was already a party. But I did before Justice Kirby take the point that on the level of bail it should be the Commonwealth who is the respondent and not the United States of Mexico, because all Mexico is entitled to in my then submission, your Honour, is due administration of the Act, which includes the possibility of bail. Justice Kirby was against me on the view that the Act contemplates United States of Mexico can be a party to the principal proceeding which, although illogical, your Honour, I cannot deny, so that he ruled against me on that issue of bail, but I did not detain the Court by maintaining that argument again even though it has some force and - - -

GUMMOW J: I just want to understand what the record was, that is all.

MR GRIFFITH: That is the record, your Honour, but I would have expected the Commonwealth, your Honour, to be my protagonist although I have complained that the Commonwealth is involved in other issues because Mexico - in effect, it is always two against one on these things, your Honours.

GLEESON CJ: Do you want to say something about costs?

MR GRIFFITH: Yes, your Honour. We say quite plainly these have been hotly contested proceedings. In the event that our application is successful, we should have the costs of the appeal and also before Justice Kirby; on only the second occasion, not the first occasion because it was dismissed. So, your Honour, if we were unsuccessful I cannot say anything against orders for costs against us unless - yes, perhaps I can, your Honour. I mean, there might be an issue as to whether or not this would be regarded as a criminal case, but we do not, no, your Honour, so it would seem very much in the civil list. So, I cannot see, your Honour, if the appeal is allowed that we could resist an order for costs - for what it is worth.

GLEESON CJ: Yes, thank you, Dr Griffith. Yes, Mr Grace.

MR GRACE: Subject to a number of matters, your Honours, that I intend to address on specifically, I seek to uplift the written submissions that I have filed with the Court and refer to them and apply them generally. I also rely upon and adopt the written and oral submissions made by my learned friend, Dr Griffith, in so far as those submissions are applicable to the case of Mr Pasini.

McHUGH J: When you say "uplift" them, you do not mean uplift them?

MR GRACE: No, I do not mean uplift them. I am using the - - -

GUMMOW J: I think he means uplift and throw away.

MR GRACE: I rely upon them.

McHUGH J: You rely upon them.

MR GRACE: Yes. I will confine my submissions principally to the issue of the exercise of discretion by his Honour Justice Kirby. Before I go to that issue, could I draw your Honours' attention to - - -

GLEESON CJ: In your case, the order was made on 29 June.

MR GRACE: That is correct. Could I take - - -

GUMMOW J: That is on the summons that had been stood over by Justice Gaudron?

MR GRACE: Correct, your Honour. Now, could I take your Honours to the attachments to my written submissions and the last document in those attachments - and this addresses the issue that your Honour Justice McHugh raised this morning concerning the issue of a stay and the failure by his Honour Justice Kirby to order a stay. The "NOTICE OF UNDERTAKING OF BAIL AND RECOGNISANCE" is the document I am referring to, and that is preceded immediately by the order of his Honour. Could I take your Honours initially to order 2(a) and order 2(a) says this:

THAT:

. . .

2. The second applicant, Marco Pasini Bertran be admitted to bail upon the following conditions:

(a) That he enter into a recognisance in the sum of $500,000.00 in a form to be approved by the Director of Public Prosecutions with Margaret Mary Davies as surety -

and so it goes on.

Now, the form of the recognisance and the notice of undertaking was approved by the Director of Public Prosecutions acting on behalf of United Mexican States. That notice of undertaking recites as follows:

WHEREAS on the 17th day of December 1999 a Magistrate determined that MARCO PASINI BERTRAN was eligible for surrender to the UNITED MEXICAN STATES in relation to more than one extradition offence and the said MARCO PASINI BERTRAN was ordered to be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release AND WHEREAS that order was confirmed by his Honour Justice French of the Federal Court of Australia on the 29th day of August 2000 AND WHEREAS the said MARCO PASINI BERTRAN appealed to the Full Court of the Federal Court of Australia against the decision of his Honour Justice French and that appeal was dismissed on 18 April 2001 AND WHEREAS the said MARCO PASINI BERTRAN made application for Special Leave to Appeal to the High Court of Australia, which court on 22 June 2001 referred the further hearing of the Special Leave Application to a Full Bench of the Court AND WHEREAS on the 29th day of June 2001 the said MARCO PASINI BERTRAN was granted bail by a Justice of the High Court of Australia until the occasion of the return before the Full Court of the High Court of Australia of his application for special leave -

et cetera. So, the recitals certainly indicate the fact of committal to prison by order of the Magistrate; the confirmation of that order for committal by Justice French and the Full Federal Court and the referral of the matter of special leave to appeal to a Full Bench of this Court and the grant of bail by His Honour Justice Kirby. So, although in form there is no stay of the order of committal, my submission is that in effect that recognisance recites the fact of the stay of that order for committal.

Now, it is with that brief background, your Honours - could I take you to the submissions once again and to the facts referred to in the submissions that relate to the history of Mr Pasini's custody.

GUMMOW J: Can I just ask you this Mr Grace. I would be assisted at some stage to know this. If one got to the stage where this Court was re-exercising the discretion in respect of your client, I would like to hear what, if anything, you say are the particular factors which would put your client in a different position from what could be an outcome in relation to the other party.

MR GRACE: Yes, I will certainly address your Honours on that issue. At pages 3, 4 and 5 of the written submissions, therein set out are the salient facts concerning Mr Pasini's custody. He was taken into custody by the Department of Immigration on 11 November 1998. He was arrested pursuant to a provisional warrant on 27 November 1998. He was taken before a magistrate and then remanded in custody. On 20 January 1999 the applicant, the United Mexican States, made a formal request for extradition. There was a hearing before the Magistrate pursuant to section 19 of the Extradition Act, which commenced on 27 July 1999, and concluded on 17 December 1999. He was held in prison during all relevant times, except for the period of detention by the Department of Immigration. He was held in the Sirius East section, the notorious section that is referred to in the various judgments, which is a unit of Port Phillip Prison in Laverton in Victoria, from August 1999 until his release on bail by order of Justice Gray of the Federal Court in December 2000. The reference in paragraph 6 of the submissions, fourth-last line, should read December 2000, not December 1999.

So he was in custody for a considerable period of time prior to his release on bail by Justice Gray. Justice Gray, by order dated 20 December 2000, supported by extensive reasons for judgment which made substantial findings of fact in respect of all the various circumstances that were said to give rise to "special circumstances" within the meaning of that phrase in section 21(6)(f) of the Extradition Act - and the reasons for decision by his Honour extensively refer to those factors. In the event, Justice Gray found that special circumstances had been established primarily, and almost solely it would seem, by reason of the fact of his psychological condition at the time.

His Honour Justice Kirby was referred extensively in argument on 28 June this year, by me, to the reasons given by Justice Gray which were said to support the existence of exceptional circumstances in the case of Mr Pasini. Now Justice Gray made findings about the seriousness of the offences between Mr Pasini and Mr Cabal. He made findings in relation to the issues of comparable responsibility between the two. He made findings about the conditions in custody.

GLEESON CJ: Just let me understand one thing. Justice Gray's order for bail was never the subject of an appeal. It was just overtaken by the event of the delivery of the judgment of the Full Court of the Federal Court on 18 April.

MR GRACE: Yes.

GLEESON CJ: And then following that there was an application to the High Court for bail.

MR GRACE: That is correct, your Honour. What happened was that on or about 22 December 2000 Mr Pasini was released from custody. It took a number of days before all the documentation was put in order. Upon his release, there were stringent conditions imposed which included twice daily reporting. Just to highlight the matter that your Honour Justice McHugh raised with my learned friend, Dr Griffith, earlier, Mr Pasini reported 231 times in the period of four months less four days between 22 December 2000 and 18 April 2001, which was the date of his surrender into custody in the Federal Court at the registry on that day.

Subsequently, on the date of delivery of judgment there was an application made for a stay of the effect of the order of the Full Federal Court. That application was denied. So, Mr Pasini was then again transferred into the custody of the Victorian prison system and was transferred back, eventually, into the Sirius East section from whence he had come on 22 December 2000.

Subsequently, in May, he made application to this Court for bail. That application came on for hearing before her Honour Justice Gaudron on 31 May of this year by video link, her Honour sitting in Canberra and the applicant - at least, myself and representatives of the now applicant in Melbourne.

It is perhaps illuminative to refer your Honours to the transcript of the argument before Justice Gaudron but due to the hour perhaps I could encapsulate it by merely referring your Honours to what her Honour found. It is contained behind tab 10.

GUMMOW J: Justice Gaudron?

MR GRACE: Yes, her Honour Justice Gaudron.

GUMMOW J: I do not think she regarded herself as finding anything, did she?

MR GRACE: Perhaps I put that too highly, but the proceeding before Justice Gaudron proceeded on the assumption that there was no jurisdiction under the Extradition Act for bail to be granted and her Honour proceeded on the basis that the inherent jurisdiction was applicable.

At paragraph 2195 on page 52, which is the last page of the transcript, her Honour said this:

It may be that, absent explanatory evidence, the condition of Mr Pasini's imprisonment and its psychological consequences could properly be held to constitute special circumstances for the purposes of section 21(6)(f)(iv) of the Extradition Act (Cth).

However, it is common ground that that is not the question now to be answered. The question is whether there are special or exceptional circumstances which would warrant the exercise of this Court's inherent jurisdiction to grant bail pending the determination of an application for special leave to appeal. In general terms that jurisdiction exists to protect the judicial process and to serve the ends of justice.

Then her Honour proceeded to stand the matter over to a date after the hearing of the special leave application in Melbourne on 22 June.

Subsequent to that date, an application was filed to bring the matter on before a single Justice of this Court and his Honour Justice Kirby happened to be the duty judge sitting that week - the Court was sitting in Brisbane - and the Court was convened at 3 pm on 28 June.

GUMMOW J: We know all this, Mr Grace. We are using valuable time in treading water.

MR GRACE: On 29 June his Honour ordered that Mr Pasini be released on bail and he was released, in fact, on 3 July. He has now been at liberty for 28 days. During that period of time he has observed all the conditions including twice daily reporting conditions which has resulted in him appearing to answer his bail on over 50 occasions.

The applicant in these proceedings did not apply for a stay of his Honour Justice Kirby's order and has appealed, I submit, as a way of protecting its position in relation to jurisdictional issues and other issues which have been raised in the application in respect of Mr Cabal.

Could I take your Honours to the matters that I submit give rise to the exceptional circumstances that were before his Honour Justice Kirby.

GUMMOW J: What would be the effect then, as you see it, of success if the present application and appeal were against your client in terms of orders and custody?

MR GRACE: If this appeal was allowed?

GUMMOW J: Yes, what would happen?

MR GRACE: He would return to custody but he would pursue - - -

GUMMOW J: Under what requirement would he do so?

MR GRACE: Under an order of this Court - - -

GUMMOW J: Why?

MR GRACE: - - - rescinding the order of Justice Kirby.

GUMMOW J: Yes, and what would that then leave in force?

MR GRACE: The order of the Magistrate pursuant to section 19(9), I think it is, of the Extradition Act 1981 .

GUMMOW J: Yes.

MR GRACE: At paragraph 17 of my written submissions, your Honours, I set out the matters that, it is submitted, justified his Honour Justice Kirby in finding that exceptional circumstances sufficient to grant bail before a grant of special leave had been established by Mr Pasini. It was never submitted before his Honour Justice Kirby that - - -

GUMMOW J: Sorry, I will just go back a little. What was your client's custodial position after the Full Court gave its decision? That brought to an end Justice Gray's order?

MR GRACE: Yes. He was placed into custody. That was the matter I was relating to your Honours earlier. So, he was in custody between 18 April and 3 July in the same conditions.

Now, it might be said what were the additional factors which brought Mr Pasini into the category of exceptional circumstances after her Honour Justice Gaudron's finding on 31 May.

GLEESON CJ: I would like to understand a little better paragraph 17.5 of your submissions.

MR GRACE: Yes. The starting point, your Honour, is the decision of the Full Federal Court in Bertran v Minister for Justice [1999] FCA 1117; (1999) 165 ALR 155. I cannot assist your Honours with what tab number that is.

GLEESON CJ: It is really sufficient for my purposes if you could just explain what you mean in paragraph 17.5.

MR GRACE: Yes, I will do that. There is a procedure in Mexico which is akin to a challenge to the efficacy of - - -

GLEESON CJ: I am not making myself clear. Are you submitting in paragraph 17.5 that the charges against your client are of such a nature and such a number that if the review confirms the decision that has already been made, there will be nothing to extradite him on?

MR GRACE: Correct, your Honour.

GLEESON CJ: In that respect, is his position different from Mr Cabal?

MR GRACE: Yes.

GLEESON CJ: That is what I wanted to understand.

MR GRACE: Yes. That was a matter that was referred to in detail by his Honour Justice Gray at paragraph 65 of his judgment which is reported in [2000] FCA 1892. If I could go through - - -

GLEESON CJ: Well now, just a moment. That period of two to three months is from what, from now?

MR GRACE: Yes.

GLEESON CJ: Thank you.

MR GRACE: If I could go back to the previous page to paragraph 17.1. Enough has been said by Dr Griffith and I do not wish to say anything more about the effect of the referral into this Court to a Full Bench of the application for special leave and I refer again to what his Honour Justice Kirby said at paragraph 40 in that regard. Could I take your Honours to the judgment of Justice Kirby at paragraph 37.

GLEESON CJ: Where does Justice Kirby deal with matter, the subject of paragraph 17.5 of your submission?

MR GRACE: He does not, your Honour, but it was a matter that was detailed extensively in argument before him and was the subject of written submissions in addition, and was also referred to in the judgment of the Full Federal Court in Bertran v The Minister for Justice which is the citation I gave to your Honours earlier, and that was an application by Mr Pasini to challenge the decision of the Magistrate pursuant to section 15(6) of the Extradition Act to refuse him bail prior to the commencement of the extradition proceedings. So even at that stage the issue of Amparo was a live issue.

GUMMOW J: Now, you were taking us to the judgment of 29 June?

MR GRACE: Yes, at paragraph 40. Now, this has already been referred to in some detail and I want to highlight again what Dr Griffith highlighted, that His Honour did not just rely upon the referral in of the special leave application to this Court, but regarded as "highly relevant" -

the extreme conditions in which the applicants are being detained and the evidence of the understandable deterioration in the psychological conditions of each of them . . . is specially true in the case of Mr Pasini, who is described as "severely depressed" and "crushed by his current circumstances".

GLEESON CJ: What is the word "it" a reference to in the second last line of paragraph 40? What is it that is true?

MR GRACE: The deterioration in the psychological conditions. I am reminded there was evidence from the clinical psychologist, Mr Cummins, as to that fact.

Paragraph 48 is particularly germane to Mr Pasini's position, and also germane to whether your Honours are to exercise a discretion anew in respect of Mr Pasini if ever that situation eventuates, and that is to answer your Honour Justice Gummow's point. At paragraph 48 His Honour says this, under the heading, "The exercise of discretion: application of Mr Pasini":

It is convenient to deal first with the case of Mr Pasini for I regard his matter as comparatively straightforward. In a sense, the conditions relevant to a provision of bail to Mr Pasini have already been considered and expressed by Gray J on the evidence as it stood at that time. There is no evidence that any of the considerations that led His Honour to grant bail to Mr Pasini upon the conditions which he did have disappeared or diminished. On the contrary, I would accept that Mr Pasini's position is now aggravated by:

(1) The greater aggregate length of time that he has been subject to the regime at the Sirius East Unit at Port Phillip Prison;

(2) The added burden of having been on bail, of being returned to such severe custodial conditions after a period of freedom; and

(3) The special burden of being separated from his sister, who is Mr Cabal's wife. In accordance with the conditions of bail imposed by Gray J (condition (h)) he was forbidden, whilst on bail, to have any communication with Mr Cabal, his spouse or their children.

In paragraph 49:

In the conclusion to which he came, Gray J was greatly affected by the favourable impression which he reached concerning the evidence of Mrs Margaret Davies, who, with her husband, was willing to act as a surety for Mr Pasini. Mr and Mrs Davies were willing, if necessary, to encumber their house as security to assure Mr Pasini's appearance to abide the determination by the Full Federal Court. Although I have not seen Mrs Davies or her husband give evidence, I am prepared to accept the impression expressed by Gray J. It was vindicated by Mr Pasini's conduct when he was admitted to bail. I have been informed that Mr and Mrs Davies remain willing to act as they did in December 2000.

Over the page His Honour said Mr Pasini is entitled to the separate consideration of his application for bail.

GLEESON CJ: I notice that you are coming to the end of your time, Mr Grace. How long do you have to go?

MR GRACE: Only a few more minutes, I would hope. Now, if I could take your Honours back to paragraph 17 of the written submissions. Paragraph 17.2 refers to the oppressive conditions and that was also the subject of great concern of her Honour Justice Gaudron on 31 May, both in argument and in the articulation in her reasons for decision.

Justice Gray at paragraphs 28 to 36 also referred to that in detail, as had previous justices of the Federal Court. The length of time is referred to by Justice Kirby at paragraph 48. The deteriorating psychological conditions which is referred to in paragraph 17.4 is also referred to by Justice Gray at paragraphs 63 to 66 of his judgment, and I have referred to the affidavit material and other material that is relied upon in support of that.

I have already referred your Honours to the issue of the Amparo quashing. Paragraph 17.6 reflects the fact that in respect of any assertion of a high risk of flight in respect of Mr Pasini, his performance belies any such assertion. His performance on bail in observing strict bail conditions without blemish is indicative of his attitude to his responsibilities and the order of the Court.

GUMMOW J: I will just ask you this, Mr Grace, it may be important. Paragraph 2(k) of the orders of Justice Kirby of 29 June obliges your client to attend at the Registry of the Court. It will be in September now. Is the contemplation that he be in custody of some sort at that time?

MR GRACE: Yes.

GUMMOW J: Would there be some Protective Services officer there with him?

MR GRACE: Yes. That would be the end of his bail as far as he is concerned, and he has been so advised, and as far as the Director of Public Prosecutions for the Commonwealth is concerned, that is their attitude as well.

GUMMOW J: Thank you.

MR GRACE: So, that is the position that we subscribe to. Those are the matters that we say justified His Honour in coming to the conclusion that he did in respect of Mr Pasini. The findings that he made were open on the facts before him.

GLEESON CJ: May I interrupt you to ask this. Is there an application on foot for a stay of the order in relation to Mr Pasini right now?

MR GRACE: No, no there is not. I have not calculated the days, but there is something like 36 days I think, between now and 6 September.

So under the principles annunciated by this Court in House v The King, it is my submission that there is nothing that has been shown in the material filed or in the submissions that have been made - - -

McHUGH J: You would submit that even if there was an error, and we exercised our discretion on the facts of the case, we should exercise the discretion in your favour, given your client's history.

MR GRACE: Yes. If I could say further in summary, in respect of whatever the test is, whether it be exceptional circumstances pursuant to the section 73 route, or whether is be special circumstances pursuant to section 21(6)(f) route, we say that - - -

McHUGH J: Do you adopt the purpose of argument that Dr Griffith puts in respect of the word "appeal" in section 21?

MR GRACE: Yes, I do. But I say it matters little in the circumstances of the case of Mr Pasini, because whatever the test that is used, it is submitted that he satisfies that test through a combination of circumstances. Those are the matters.

GLEESON CJ: Yes, thank you Mr Grace. Mr Pagone. Just before you go any further, Mr Pagone, paragraph 17.5 of Mr Grace's submissions: is it the case that unless the higher court quashes the extant decision, the sub stratum of the extradition application in the case of Mr Pasini will disappear?

MR PAGONE: No, your Honour.

GLEESON CJ: What do you say about paragraph 17.5?

MR PAGONE: Well, your Honour, what they are saying there is that they anticipate something may occur which, if it occurs, will produce a favourable result and until that occurs, if it does occur, we do not know, but, in so far as it relies upon the law of Mexico, your Honours have got only that assertion about it.

McHUGH J: But is it not the fact that unless the order of the intermediate court or the primary court is set aside, the warrants are quashed?

MR PAGONE: Your Honour, I doubt that I can take it much further than what I have said.

GLEESON CJ: Well, we have paragraph 17.5 of the written submission and, presumably, in the absence of some contradiction, we can act on the basis of it.

MR PAGONE: Your Honour, can I perhaps just leave that for a moment in case something else comes up, but that is my understanding.

GLEESON CJ: You will recall the submission.

MR PAGONE: May I just deal with some matters very quickly, your Honours. Perhaps if I may deal with them this way. In relation to the point about successive vesting that my learned friend is seeking to argue, we say the matter has been determined by Aston v Irvine which is a case which that was decided quite some time ago and has stood the test of time. The relevant pages are at 365 to 4. It was effectively also considered by the court in Kainhofer at page 538.

GUMMOW J: What does Kainhofer say on this, relevantly?

MR PAGONE: It describes the way in which the Extradition Treaty operates - not the treaty I should say, the Extradition Act operates. It talks about the successive vesting and at page 538 it was plain enough that what was contemplated was that the successive vesting exercise causing the exercising of different powers was perfectly within constitutional power.

McHUGH J: Is that in the joint judgment of Justices Brennan, Dawson and myself? It does not matter, but it is only a dicta, is it not?

MR PAGONE: Well, your Honour, "only a dicta". Yes, your Honour, it is only dicta.

McHUGH J: It was the point to be decided in Kainhofer.

MR PAGONE: It was not agitated as being wrong, your Honour, and not surprising in view of cases like Aston v Irvine. It is a proposition that until recently has been regarded as fairly obvious and frequently employed as a drafting technique for the Commonwealth. In a whole series of cases, your Honour, in which that drafting technique has been applied by the Parliament and apparently upheld without the slightest qualms, as indeed was put to the Court on the occasion of the special leave application, in writing and I believe orally.

So far as the severance point is concerned, your Honour, we say that there is nothing in that. There is no sufficient basis for the Court to find other than severance would be perfectly permissible, and perfectly possible. A number of cases can be relied upon, your Honour. One of them is the Bank of New South Wales v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1, and the relevant passages 370 to 372. The abuse point, your Honours effectively considered in Abebe, already determined by the High Court and there is no occasion for the matter to be reagitated.

Your Honours, so far as the test in relation to special leave is concerned, what has always been agitated in these proceedings, is that the test - when I say "these proceedings" I mean in this Court - the test that was annunciated by His Honour the Chief Justice in Zoeller's Case was the correct test, namely, that special leave must be irresistible, and your Honours can see that behind - I will not take your Honours to it in great detail - tab 14 in the transcript of argument at pages 127 to 128, from lines 5565 to 5595. Your Honours will also find it in tab 13, page 4; and subsequently in tab 18, page 5.

Indeed, the way in which my learned friend, Dr Griffith, would seem to put the argument before this Court, namely that what Justice Kirby actually did was simply to say that he had passed the first bar. Special leave having been dealt with in the way that you did, you got over the first kind of step. That would place the bar remarkably low.

In so far as your Honour Justice McHugh was asking about evidence about money, what your Honour may have had in mind is that the matter was considered by Justice Goldberg. The relevant part of the relevant decision is behind tab 62, page 18 which is at paragraph 38, and page 43 at paragraph 101. The latter is general, simply a reference to Mr Cabal having access to substantial sums of money. The former is more precise. It talks about, amongst other things:

In the course of the proceedings before the Magistrate Mr Cabal said that on 30 August 1994 he organised a personal line of credit from a bank in Switzerland in the sum of approximately $110 million.

GUMMOW J: Which paragraph is this, Mr Pagone?

MR PAGONE: Paragraph 38, your Honour, tab 62. Your Honour, my learned friends may say that that is to be contested or something, but it was a matter of apparently a finding.

Also in relation to sum of money, your Honours, Mr Perry was asked some questions about the amounts of money that Mr Cabal had. Your Honours will find the cross-examination at tab 19, page 29, at about line 1186, where the burden of Mr Perry's evidence was that while he was not quite sure of how much money had been spent by Mr Cabal in the legal proceedings, he thought it was really quite a lot and certainly more than the $2 million, although plain enough he did not know the amount.

My learned friend keeps referring to what Justice Kirby said as a finding that the risk of flight was tolerably small. That is not quite what his Honour says, and the difference is perhaps important. At tab 20, page 9, about 8 lines from the top:

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 severe that the risk will be tolerably small.

It is fact not a finding that the risk of flight is tolerably small. On the contrary, it is a view, not as a finding of fact, your Honours, but a view that the conditions would have a consequence that any risk might be tolerably small, quite different from the finding of facts.

So far as my learned friend's submission is concerned that Mr Cabal can return to Mexico and walk as a free man, I should refer the Court to some evidence that suggests to the contrary. That is in the affidavit of Mr Caporale behind tab 53, at paragraph 8, where Mr Caporale gives evidence of his understanding of some provisions that were introduced in 1999 in Mexico.

MR GRIFFITH: Your Honour, I object to this reference. It is clear as hearsay and it is new evidence sought to be adduced at the level of this appeal.

GLEESON CJ: Was this read before Justice Kirby?

MR GRIFFITH: No, it was not, your Honour. I am sorry it was, your Honour. I objected to it there as being hearsay.

GLEESON CJ: What was his Honour's ruling upon your objection?

MR GRIFFITH: He said he would accept it with such weight as it could convey, your Honour.

GLEESON CJ: So it was in evidence before him?

MR GRIFFITH: Just in that way, your Honour, but we regard it as objectionable.

GLEESON CJ: I think we should read it. Yes, we will read it.

MR PAGONE: Now, your Honour, there is no doubt that is hearsay and what my learned friend was putting in terms of the evidence about Mr Cabal's belief and the evidence that he led, which was equally hearsay, was that what was relevant was that it somehow bore upon Mr Cabal's state of mind. That is the way it is put to the Court now. What was not put to Mr Cabal and what Mr Cabal has never been asked about and what my learned friends have not led evidence about is Mr Cabal's state of mind in light of this provision.

Now, your Honours, if I may move on from there. So far as the sufficiency or otherwise of the sureties are concerned, your Honours, the submission was made before Justice Kirby by me that the evidence that was offered by way of surety was insufficient. The point about the sureties is that they are essentially to supervise conditions of bail and to secure the person for attendance at court. The submission was made to his Honour that the evidence was insufficient for the Court to be satisfied about the sureties being able to act as surety and your Honours will see that at tab 19, the first place at page 52 of the transcript and then at pages 91 and 92.

What can be said about the four individuals offered as surety is this. One of them is simply physically not able to perform any role as a surety. Mr Pace is simply nowhere near Melbourne. He is in New South Wales. The evidence about Ms Curry-Hyde was that she was touring. The evidence of Mr Canavan was insufficient to show that he would be able to act as a surety in any effective way and if one sees the transcript which is attached to his affidavit at pages 26 to 27, again one sees the evidence about the effectiveness of these pivotal act of sureties is palpable.

Mr Watson, who was a former business associate - his affidavit, I think, appears behind tab 30 and in paragraph 3 what one can see is that there is no present connection deposed to, present connection between Mr Watson and Mr Cabal. The only temporal connection that was deposed to was one of some years ago. So that so far as the sureties are concerned, what was contended below was that the evidence they put forward is simply insufficient for the purpose and we invite the Court to review that evidence to see just that.

Your Honours, so far as the section 21 is concerned, we do say that his Honour Justice Mason was correct in his conclusion.

GUMMOW J: What is the answer to this gap that your opponent says would be opened up, on both sides?

MR PAGONE: Your Honour, we say there is no gap and there is no gap so far as, as it were, our side is concerned. It is not surprising if - - -

GUMMOW J: If you had been unsuccessful in the Full Court.

MR PAGONE: Our options if we had been unsuccessful in the Full Court, your Honour, were (a) we would ask the Full Court for a stay; (b) if there was evidence of actual flight so that our appeal would be lost we could come to the court and, indeed, in the example one sees a perfectly good example of the inherent jurisdiction, the futility point that we are raising, and it is not at all surprising that if the Full Court were not minded to give a stay that we should not get one in circumstances where it has been considered and we have lost. There is no gap at all in those circumstances, if the Court pleases.

Your Honours, I am mindful of the time. Your Honours, may I just say about the Amparo quashing, the question that your Honour asked me a moment ago, I am told that the judgment of the Full Court deals with the matter and your Honours will find it behind tab 6. It is in the M39 application, your Honours. It is considered by the Full Court in that proceeding and the effect of what they say seems to be, your Honours, that Justice Kenny had found that the quashing of the Amparo did not invalidate the warrants.

GLEESON CJ: I am not sure that touches the point that is being made in paragraph 17.5 of Mr Grace's submissions.

MR PAGONE: I do not think I can take that matter much further, your Honour.

GLEESON CJ: No. Thank you, Mr Pagone. Yes, Mr Walters.

MR WALTERS: If the Court pleases. There are three points I wish to make. Two of them refer to cases that have already been referred to, but particularly by Dr Griffith. The first is Aston v Irvine and the point I wish to make about that case is that it is remarkably similar in factual context to the Extradition Act. It is dealing with interstate extradition under the Service and Execution of Process Act and it is a decision of all Justices of the Court and it was in the circumstances where there is an order by a magistrate, which is effectively executive, and then a right to apply to a court to review that. So in considering the strength of the underlying application for special leave that is a considerable hurdle for Mr Cabal and Mr Pasini to overcome. Secondly, I wanted to say something very briefly about the Banking Case and that is Dr Griffith relied on that as an example - - -

GUMMOW J: What do you say comes out of this passage at 370 to 372?

MR WALTERS: Yes, if the Court pleases.

GUMMOW J: What comes out of it, shortly?

MR WALTERS: Is that in relation to the Banking Case?

GUMMOW J: Yes.

MR WALTERS: Yes, briefly it is this, that that was a case where just terms were in issue and the justice of the terms depended upon the ability to review those terms.

GUMMOW J: Yes.

MR WALTERS: That is not the situation here. It is not a just terms case at all, so that the Banking Case is quite distinguishable from the present situation when the Court comes to consider that. The third point that I wanted to make relates to the other aspect of the underlying application for special leave and that is the abuse of process aspect which, in our submission, is elusive. Dr Griffith, I think, got so far as saying that what was alleged was failure to disclose something to the Federal Court in circumstances where Mexico was responding to an appeal and the appellant had disclosed it to the Federal Court anyway. Now, unless we have misunderstood it, we cannot see how that falls under the normal concept of an abuse of process. Those are our submissions in reply, if the Court pleases.

GLEESON CJ: Thank you. We will adjourn for a short time to consider the course we will - - -

MR GRACE: Could your Honour just give me leave to refer to two very brief matters?

GLEESON CJ: Yes.

MR GRACE: Just firstly in relation to the Amparo issue. Could I refer your Honours behind tab 12 to the written submissions filed by me before Justice Kirby which refer to that issue?

GLEESON CJ: Thank you.

MR GRACE: The second is behind tab 14, the transcript of the hearing before Justice Kirby. Why I raise that issue squarely on the transcript at page 117, it was not the subject of any reply by the respondent and also - - -

McHUGH J: What was that last reference, Mr Grace?

MR GRACE: Page 117.

McHUGH J: What tab number, tab 14?

MR GRACE: Behind tab 14, and paragraph 56 in the judgment of his Honour Justice Gray refers to the issue also. That is the decision delivered on 20 December 2000 which is reported [2000] FCA 1892. I did refer your Honours to another decision of the Full Federal Court. That was in error. Please do not refer to that matter which was referred to as Bertran v The Minister for Justice.

The second matter that I did not address your Honours upon was the issue of costs. In the event of the appeal being dismissed I would seek costs on behalf of Mr Pasini and together with the reserved costs before Justice Kirby. If the appeal is successful, I would seek a certificate under section 6 of the Federal Costs Proceeding Act.

GLEESON CJ: Thank you.

MR WALTERS: May I say something briefly on the question of costs? The Commonwealth does not seek costs. We would prefer not to have pay costs but I do not wish to make any submissions.

GLEESON CJ: You do not seek an order for costs in this matter?

MR WALTERS: We do not seek any order for costs.

GLEESON CJ: Thank you.

MR GRIFFITH: We would seek a certificate also, your Honour.

GLEESON CJ: We will adjourn for a short time to consider the course we will take.

AT 4.17 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.35 PM:

GLEESON CJ: In matter No M70 of 2001, which is the application for leave to appeal in respect of Mr Pasini, we reserve our decision.

In matter No M74 of 2001, which is the application for leave to appeal in respect of Mr Cabal, we make the following orders:

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

(2) The appeal is allowed.

(3) Orders 1, 2, 3, 4, 5, 6 and 7 of the orders made by Kirby J on 19 July 2001 are set aside and in place thereof it is ordered that the summons dated 12 July 2001 be dismissed.

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

We will deliver our reasons for those orders in due course. We will adjourn.

AT 4.37 PM THE MATTER WAS ADJOURNED