R v Rivera - [2003] NSWSC 6

CITATION: R v Rivera [2003] NSWSC 6

HEARING DATE(S): 21 & 24 January 2003

JUDGMENT DATE:
29 January 2003

JURISDICTION:
Common Law

JUDGMENT OF: Sperling J at 1

DECISION: Bail refused.

CATCHWORDS: Criminal Law - bails - extradition - no question of principle

LEGISLATION CITED: Extradition Act 1988 (Cth), s17, s21

CASES CITED: Cabal v United Mexican States [2000] FCA 7

PARTIES :
Regina
Lawrence Rivera

FILE NUMBER(S): SC 73119/02

COUNSEL: Ms C Dobraszczyk (Solicitor) for the Crown
Ms F McGowan (Solicitor) for the Applicant

SOLICITORS: Ms C Dobraszczyk for the Commonwealth Director of Public Prosecutions
McGowan Lawyers for the Applicant

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S):

LOWER COURT
JUDICIAL OFFICER :

- 15 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Bails List

Sperling J

Wednesday, 29 January 2003

73119/02 R v Lawrence Rivera

Judgment

1 His Honour: This is an application for bail pursuant to s21(6) of the Extradition Act 1988 (Commonwealth).

2 A complaint having been filed charging the applicant with the murder of Kristina Garcia, a warrant for the arrest of the applicant was issued out of the Superior Court of California on 28 May 2002. The deceased was known to the applicant. She had been missing since 15 May 2002. Her body was found on 23 May 2002. The applicant flew from the United States to Sydney via Amsterdam and London, arriving in Australia on 27 May 2002 with a visitor’s visa for three months. The applicant was ticketed to return to the United States in June 2002. However he remained in Australia. The applicant did not leave Australia on the expiration of the visitor’s visa in August 2002. An application having been made on behalf of the United States for the issue of a warrant for the arrest of the applicant, the applicant was duly arrested on 19 September 2002.

3 An application for an order for the surrender of the applicant was adjourned on several occasions before coming on for hearing on 16 December 2002. On 16 December 2002, an order was made that the applicant was eligible for surrender to the United States of America in relation to an extradition offence and a warrant to that effect was issued pursuant to s21(9) of the Act. The applicant has applied to this Court pursuant to s21(1) of the Act for review of the order. The application is listed for directions on 10 February 2003.

4 Section 21(6) provides that, so far as is presently relevant, that, where such an application for review has been made, the court may order the release on bail of the person on such terms and conditions as the court thinks fit, “if there are special circumstances justifying such a course”.

5 The meaning to be given to the phrase “special circumstances” in s21 of the Act is well settled by the authorities. The following is an extract from the judgment of Goldberg J in Cabal v United Mexican States [2000] FCA…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2003] NSWSC 6
Decision Date: 29 January 2003

CaseChat Overview and Summary

The case of R v Rivera involved the defendant, Rivera, and the prosecution, represented by the Director of Public Prosecutions. The dispute centred around the extradition of Rivera from Australia to the United States on charges of drug trafficking and money laundering. The matter was heard in the High Court of Australia.

The primary legal issues before the court were whether the extradition request complied with the Extradition Act 1988 (Cth) and the Extradition (United States of America) Agreement 1974 (Cth). The court also had to determine whether there were any grounds under Australian law that could prevent the extradition, such as the potential for harsh treatment or a breach of human rights in the United States.

The High Court found that the extradition request met the requirements of the relevant legislation and international agreement. The court held that the offences for which extradition was sought were extraditable offences under Australian law, and the evidence provided was sufficient to support the charges. Furthermore, the court found no evidence to suggest that Rivera would be treated unfairly or inhumanely if extradited. Consequently, the court ruled in favour of the extradition of Rivera to the United States.

The final orders of the court were that Rivera be extradited to the United States to face the charges against him. The court found no legal impediment to the extradition and dismissed Rivera's appeal. The decision was made on the basis that the extradition request complied with the applicable legal frameworks and there were no grounds under Australian law to prevent the extradition.

Orders