FEDERAL COURT OF AUSTRALIA
Rivera v Minister for Justice and Customs [2007] FCAFC 123
EXTRADITION - appeal from decision of primary judge dismissing application for judicial review under s 39B of the Judiciary Act 1903 (Cth) - extradition process - whether applicable extradition objection exists - whether death penalty undertaking complied with s 22(3)(c) of the Extradition Act 1988 (Cth) (the Act).
CONSTITUTIONAL LAW - Constitutional validity of s 22 of the Act.
Acts Interpretation Act 1901 (Cth), s 19A
Extradition Act 1988 (Cth) ss 7, 12, 19, 22, 23, 190
Judiciary Act 1903 (Cth), ss 7, 22, 39BCalifornia Penal Code ss 187(a), 189, 190(a), 190.1, 190.2, 190.3, 190.4
California State Constitution, Art 3 s 1, Art 5 s 13
Constitution of the United States of America, Art III, Amendment X
Extradition (United States of America) Regulations 1992 (Cth) r 3
Treaty on Extradition between Australia and the United States of America. Washington, 14 May 1974 [1976] ATS 10 Articles I, III, VI, V, XI(3)(c), XIV (entered into force 8 May 1976), as amended by Protocol (Seoul, 4 September)de Bruyn v Ellison [2004] FCA 880 referred to
de Bruyn v Minister for Justice and Customs (2004) 143 FCR 162 referred to
Dietrich v The Queen (1992) 177 CLR 292 referred to
Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 referred to
McCrea v Minister for Justice and Customs (2005) 145 FCR 269 applied
Rivera v United States of America [2004] FCAFC 154 referred to
Sorby v The Commonwealth (1983) 152 CLR 281 referred to
Stead v State Government Insurance Commission (1986) 161 CLR 141 referred to
Vasiljkovic v The Commonwealth (2006) 228 ALR 447 referred toLAWRENCE RIVERA v MINISTER FOR JUSTICE AND CUSTOMS
NSD2534 OF 2006
EMMETT, CONTI & BUCHANAN JJ
9 AUGUST 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD2534 OF 2006
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
LAWRENCE RIVERA
AppellantAND:
MINISTER FOR JUSTICE AND CUSTOMS
Respondent
JUDGES:
EMMETT, CONTI & BUCHANAN JJ
DATE OF ORDER:
9 AUGUST 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Appellant pay the Respondent’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD2534 OF 2006
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
LAWRENCE RIVERA
AppellantAND:
MINISTER FOR JUSTICE AND CUSTOMS
Respondent
JUDGES:
EMMETT, CONTI & BUCHANAN JJ
DATE:
9 AUGUST 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
EMMETT J:
The appellant, Lawrence John Rivera, is a citizen of the United States of America. He arrived in Australia on about 22 May 2002. However, on 31 August 2006 the respondent, the Minister for Justice and Customs (the Minister), determined, under s 22(2) of the Extradition Act 1988 (Cth) (the Act), that Mr Rivera be surrendered to…
Keep reading for free
Create a free CaseChat account to read Rivera v Minister for Justice and Customs and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2007] FCAFC 123
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
1. The appeal be dismissed.
2. The Appellant pay the Respondent’s costs of the appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In essence, this ground invites the Court to reconsider the conclusion reached by the Minister that he was satisfied that the relevant extradition objection was not made out. The primary judge correctly held that the material before the Minister enabled him to be satisfied that the relevant extradition objection did not exist. Torture and Humanitarian Considerations: Grounds (2) and (5) Mr Rivera made the same submissions in support of both ground (2) and ground (5). His submissions proceeded on the erroneous assumption that there was a requirement for the Minister to take into account humanitarian considerations in exercising the power given by s 22. Nevertheless, the Departmental Submission took the approach that humanitarian considerations could be taken into account in deciding whether or not the Minister should exercise the residual discretion contained in s 22(3)(f) of the Act. Both grounds were directed to prison conditions in California. Materials provided by Mr Rivera to the Minister indicate that prisoners in United States correctional facilities, including those in California, may be subjected to physical and sexual abuse and that the abuse may be perpetrated by prison guards and other prisoners on a frequent basis. Mr Rivera referred specifically to materials relating to the incidence of HIV and Hepatitis C diseases in Californian prisons. Those materials were specifically put before the Minister as attachments to the Briefing Paper. The Departmental Submission concluded that the materials do not establish that the conditions in the United States prisons are such that they should be regarded as cruel or inhumane or to involve degrading treatment or punishment. In short, they do not establish that the treatment of prisoners amounts to torture. The Minister appears to have accepted that conclusion. The arguments advanced by Mr Rivera in relation to these grounds amount to an invitation to the Court to reach a different conclusion from the conclusion reached by the Minister on the basis of the materials placed before him. There was no reviewable error on the part of the Minister. As the primary judge held, it is not for the Court to determine whether Mr Rivera might be tortured; in any event, mistreatment or abuse in prison does not amount to torture. The conclusion of the Minister was open to him on the materials before him. There was no error. The Death Penalty and Speciality: Ground (3) Mr Rivera’s arguments concerning the operation of s 22(3)(c) of the Act canvassed a number of issues, including the operation of the speciality requirement of s 22(3)(d). Before dealing with the arguments, it is necessary to say something about the California Penal Code (the Penal Code). Section 189 of the Penal Code provides that certain kinds of murders constitute murder of the first degree and that all other kinds of murders are of the second degree. The murders of the first degree are as follows:·murders perpetrated by the methods specified in s 189;·murders perpetrated by any other kind of wilful, deliberate and premeditated killing;·murders committed in the perpetration of, or attempt to perpetrate, certain other named crimes, including kidnapping;·murders that are perpetrated by means of discharging a firearm from a motor vehicle.