Castle v United States (No 3)

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FEDERAL COURT OF AUSTRALIA

Castle v United States (No 3) [2018] FCA 2022

File number: VID 1415 of 2017
Judge: MORTIMER J
Date of judgment: 14 December 2018
Catchwords: EXTRADITION – application for review under s 21 of the Extradition Act 1988 (Cth) and for judicial review under s 39B of the Judiciary Act 1903 (Cth) of determination that applicant eligible for surrender to the United States – whether Court satisfied that requirements of ss 19(1) and (2) of the Extradition Act 1988 (Cth) established in relation to applicant – whether the applicant had established an extradition objection – application dismissed
Legislation:

Constitution, s 75

Extradition Act 1988 (Cth), ss 7, 16, 19(1), 19(2), 19(9), 21, 21A, 45A, 45B

Judiciary Act 1903 (Cth), s 39B

Migration Act 1958 (Cth)

Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, opened for signature on 14 December 1973, 1035 UNTS 167 (entered into force 22 February 1977)

Crimes (Internationally Protected Persons) Act 1976 (Cth)

Diplomatic Privileges and Immunities Act 1967 (Cth)

Treaty on Extradition between Australia and the United States of America (Washington, 14 May 1974) 1976 ATS 10 as amended by the Protocol amending the Treaty on Extradition between Australia and the United States of America (Seoul, 4 September 1990) [1992] ATS 43, Art XI

Vienna Convention on Diplomatic Relations, done on 18 April 1961, 500 UNTS 95 (entered into force on 24 April 1964)
Cases cited:

Cabalv United Mexican States (No 3) [2000] FCA 1204; 186 ALR 188

Castle v United States [2018] FCA 931

Dutton v O’Shane [2003] FCAFC 195; 132 FCR 352

Marku v Republic of Albania [2013] FCAFC 51; 212 FCR 50

Republic of Croatia v Snedden [2010] HCA 14; 241 CLR 461
Date of hearing: 12 September 2018
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 81
Counsel for the Applicant: The Applicant appeared in person
Counsel for the First Respondent: Ms K O’Gorman
Solicitor for the First Respondent: Commonwealth Attorney-General’s Department
Solicitor for the Second Respondent: The Second Respondent submits to any order the Court may make save as to costs

ORDERS

VID 1415 of 2017
BETWEEN:

JAMES CHRISTOPHER CASTLE

Applicant
AND:

UNITED STATES

First Respondent

JUDGE RIETHMULLER

Second Respondent

JUDGE:

MORTIMER J

DATE OF ORDER:

14 DECEMBER 2018

THE COURT ORDERS THAT:

1.The application for review under s 21 of the Extradition Act 1988 (Cth) filed on 22 December 2017 is dismissed.

2.Pursuant to s 21(2)(a) of the Extradition Act 1988 (Cth) the order of the second respondent made on 8 December 2017, is confirmed.

3.The application pursuant to s 39B of the Judiciary Act 1903 (Cth) is dismissed.

THE COURT DETERMINES THAT:

1.The applicant, James Christopher Castle (also known as Chris Castle or James Castro) is eligible for surrender, within the meaning of s 19(2) of the Extradition Act 1988 (Cth) in relation to the following extradition offences:

(a)one…

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Details
Case
[2018] FCA 2022
Decision Date

CaseChat Overview and Summary

The case of Castle v United States (No 3) involved James Christopher Castle, who applied for review of a determination that he was eligible for surrender to the United States, under sections 21 of the Extradition Act 1988 (Cth) and 39B of the Judiciary Act 1903 (Cth). The Federal Court of Australia was called upon to decide whether the requirements of sections 19(1) and (2) of the Extradition Act were established in relation to Castle, and whether he had established an extradition objection. The legal issues before the court included the interpretation of the Extradition Act, the scope of evidence admissible on review, and the existence of any jurisdictional or legal errors in the decision of the s 19 Judge.

The court found that there were no grounds to set aside the determination made by the s 19 Judge, nor the warrant issued by him under s 19(9) of the Extradition Act. The court was satisfied that the requirements of sections 19(1) and (2) of the Extradition Act were established in relation to Castle, and that he had not established an extradition objection. The court had regard only to the material properly before it, as limited by section 21(6) of the Extradition Act, and found that Castle had not demonstrated any connection between his political opinions and the punishment or treatment he apprehended in the United States. The court concluded that Castle's arguments, whether considered under section 21 of the Extradition Act or section 39B of the Judiciary Act, must fail.

The court dismissed Castle's application for review under section 21 of the Extradition Act and his application for judicial review under section 39B of the Judiciary Act. The court confirmed the decision of the s 19 Judge that Castle was eligible for surrender to the United States, and determined that Castle was eligible for surrender in relation to the specified extradition offences. The court's final orders included dismissing Castle's application for review and application for judicial review, and confirming the s 19 Judge's order that Castle was eligible for surrender to the United States.

Orders

Orders of the court

1. The application for review under s 21 of the Extradition Act 1988 (Cth) filed on 22 December 2017 is dismissed.

2. Pursuant to s 21(2)(a) of the Extradition Act 1988 (Cth) the order of the second respondent made on 8 December 2017, is confirmed.

3. The application pursuant to s 39B of the Judiciary Act 1903 (Cth) is dismissed.

THE COURT DETERMINES THAT:

1. The applicant, James Christopher Castle (also known as Chris Castle or James Castro) is eligible for surrender, within the meaning of s 19(2) of the Extradition Act 1988 (Cth) in relation to the following extradition offences:

(a) one count of conspiracy to defraud the United States in violation of Title 18 United States Code (U.S.C.) 371;

(b) one count of conspiracy to commit bank fraud and false making of lending agency writings in violation of Title 18 U.S.C. section 371;

(c) 15 counts of bonds and obligations of certain lending agencies, in violation of Title 18 U.S.C. section 493;

(d) 21 counts of bank fraud in violation of Title 18 U.S.C. section 1344(1); and

(e) one count of transactions in criminally derived property in violation of Title 18 U.S.C. section 1957.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In summary, for the reasons set out below, I have found there are no grounds to set aside the determination made by the s 19 Judge, nor the warrant issued by him under s 19(9) of the Extradition Act. THE EVIDENCE BEFORE THE COURT As I noted in Castle No 1, subject to the terms of s 21A, s 21(6) of the Extradition Act limits the evidence which can be considered on a review of a s 19 determination. Section 21A has no application in this review because the Court has not found that the s 19 Judge excluded any evidence which Mr Castle should have been permitted to adduce. As I set out below, Mr Castle nevertheless sought to refer to material which was outside the terms of s 21(6). I have had no regard to that material. The material properly before the Court, consistently with s 21(6), was contained in a Court Book prepared by the United States. It consisted of:(1)The extradition request from the United States for James Christopher Castle dated 28 March 2017, including the affidavit of Ms Cynthia Stier and Ms Audrey B Hemesath;(2)A notice of receipt of the extradition request made under s 16 of the Extradition Act;(3)Submissions filed by the United States dated 29 August 2017 on the applicant’s eligibility for surrender; (4)An affidavit of James Christopher Castle dated 23 September 2017, attaching:(a)a notice under s 254 of the Migration Act 1958 (Cth) addressed to Mr Castle;(b)email correspondence between parties and the chambers of the s 19 Judge; and(c)a letter from Mr Castle to the Australian Border Force dated 10 September 2017;(5)An affidavit of Mr Castle sworn on 26 September 2017;(6)Submissions in reply filed by the United States on the applicant’s eligibility for surrender;(7)Correspondence from Mr David A Sale dated 15 July 2017;(8)A document describing the “History and Powers of the International Treasury Control”;(9)Transcript of the s 19 eligibility proceedings conducted before his Honour Judge Riethmuller on 23 October 2017;(10)Transcript of the decision of his Honour Judge Riethmuller on the applicant’s eligibility for surrender (delivered ex tempore on 8 December 2017);(11)A warrant issued under s 19(9) ordering the applicant’s committal to prison to await surrender;(12)A letter issued under s 19(9) from his Honour Judge Riethmuller to the Attorney-General;(13)An order by Judge Riethmuller remanding Mr Castle into custody under s 15 of the Extradition Act; and(14)Transcript of proceedings before his Honour Judge Riethmuller on 15 August 2017. The United States also sought to include a covering diplomatic note to the extradition request pursuant to s 21A of the Extradition Act 1988 (Cth). In the Court Book index, this document was marked as “Evidence excluded by eligible judge at s 19 hearing, included subject to s 21A of the Extradition Act 1988 (Cth). No submissions were made to support an argument under s 21A(2)(b) and therefore I do not consider the document should be received on the s 21 review. In his submissions on the s 21 review, Mr Castle had attached an affidavit, which on its face indicated it was sworn on 6 October 2017. This affidavit was not before the s 19 Judge, and the United States objected to the affidavit on that basis. Mr Castle accepted the affidavit itself was not before the s 19 Judge. He contended he had difficulties in getting it filed in time because of what he described as issues arising from his detention. However, he submitted that he read the contents of the affidavit into the transcript. After some discussion, I indicated my preliminary view would be that if this had occurred, then the material probably was “before” the s 19 Judge, and so not within the scope of the prohibition in s 21(6). Counsel for the United States accepted that may be the correct approach, but properly reserved her position on the matter until Mr Castle had identified the relevant transcript pages from the s 19 hearing. Mr Castle was given time to supply the Court and the United States with the transcript references from the s 19 hearing, where he contended he read the affidavit to the s 19 Judge.

Decision

Reasons for decision

Further, even assuming any political opinions held by Mr Castle could be identified from the evidence before the s 19 Judge, which as I have noted above, is a difficult task, I accept the submission of the United States that Mr Castle has not established any connection between the political opinions he asserts, and the punishment or treatment he contends he will experience in the United States, for the purposes of s 7(c) of the Extradition Act. The connection is required to be a causal one. As French CJ explained in Republic of Croatia v Snedden [2010] HCA 14; 241 CLR 461 at [23]:The words of s 7(c) require attention to be given to the existence of a causal connection between apprehended punishment and the political opinions of the respondent. CONCLUSION Whether Mr Castle’s arguments are approached through the prism of s 21 of the Extradition Act, or through the prism of s 39B of the Judiciary Act, they must fail. There is no basis to quash the order of the s 19 Judge. I am comfortably satisfied that it is appropriate to confirm the decision made by the s 19 Judge that Mr Castle was eligible for surrender to the United States. The letter from the s 19 Judge to the Attorney-General (pursuant to s 19(9)(c)) which is in evidence is not dated, but refers to a warrant issued by the s 19 Judge on 8 December 2017. This is also the date on which the s 19 Judge convened a hearing and gave his decision in relation to Mr Castle, concluding the reasons he gave by stating:As I am satisfied that each of the requirements of the Act have been satisfied in this case, and that I have dismissed the other arguments raised by Mr Castle, I formally determine that he is eligible for surrender under the Extradition Act, and I will therefore execute the relevant documents necessary under the provisions. The warrant issued by the s 19 Judge pursuant to s 19(9)(a) is, as I have noted, dated 8 December 2017. This is the order which this Court confirms, pursuant to s 21(2)(a) of the Act. For the purposes of s 21(6)(g), the Court determines that James Christopher Castle (also known as Chris Castle or James Castro) is eligible for surrender, within the meaning of s 19(2) of the Extradition Act, to the United States of America in relation to the following extradition offences:(a)one count of conspiracy to defraud the United States in violation of Title 18 United States Code (U.S.C.) 371;(b)one count of conspiracy to commit bank fraud and false making of lending agency writings in violation of Title 18 U.S.C. section 371;(c)15 counts of bonds and obligations of certain lending agencies, in violation of Title 18 U.S.C. section 493;(d)21 counts of bank fraud in violation of Title 18 U.S.C. section 1344(1); and(e)one count of transactions in criminally derived property in violation of Title 18 U.S.C. section 1957. Mr Castle’s application under s 39B of the Judiciary Act will be dismissed, the Court not being persuaded there are any jurisdictional or other legal errors in the decision of the s 19 Judge.

Ratio Decidendi

Legal Principle Established

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