Rivera v Minister for Justice and Customs

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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, 39B

California 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 to

LAWRENCE 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
Appellant

AND:

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
Appellant

AND:

MINISTER FOR JUSTICE AND CUSTOMS
Respondent

JUDGES:

EMMETT, CONTI & BUCHANAN JJ

DATE:

9 AUGUST 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

EMMETT J:

  1. 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…

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Details
Case
[2007] FCAFC 123
Decision Date

CaseChat Overview and Summary

In the case of Rivera v Minister for Justice and Customs, the applicant, Mr Rivera, appealed against the decision of the Minister for Justice and Customs to order his extradition to the United States. The court considered several grounds of appeal, including whether the Minister erred in determining that extradition objections were not made out, whether the Minister failed to consider relevant evidence, and whether the Minister erred in determining that the death penalty and speciality requirements were satisfied. The court examined the legal issues concerning the statutory prerequisites for extradition, the role of humanitarian considerations, and the effect of undertakings not to impose the death penalty. The court found that the Minister's decision was not erroneous and dismissed the appeal. The Minister's decision was upheld, and the appeal was dismissed with costs in favour of the Minister.

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

However, nothing in s 1555.3 or s 1556 removes the power to give an undertaking not to seek or impose the death penalty. Nor does anything in the provisions described affect a specialty assurance. No such undertaking would have the effect of declaring a statute unenforceable or unconstitutional by way of usurpation of the judicial function. An undertaking not to impose the death penalty need not be legally enforceable (see McCrea v Minister for Justice and Customs (2005) 145 FCR 269 at [21] – [25]). I do not consider that the additional matters to which Mr Rivera has drawn attention derogate from the conclusion that I have already expressed that the relevant prerequisites of the Act have been satisfied. Insufficient Evidence and Bad Faith: Grounds (4) and (6) Grounds (4) and (6) are related and Mr Rivera relies on the same arguments in relation to each of those grounds. Mr Rivera’s written submissions refer to so called inconsistencies in the material relied upon by the United States in support of the extradition request. His submissions amount to an attempt to demonstrate that he would not be convicted in California on the basis of the material relied upon by the United States. Mr Rivera made particular reference to materials concerning the cause of the death of the Victim and the date of her death. In addition, his submissions refer to the alleged existence of an audio tape, which is alleged to record a telephone conversation between Mr Rivera and a police officer in California. Mr Rivera alleges that the audio tape records a conversation in which admissions were made that police officers had manufactured evidence involved in the case against Mr Rivera. However, Mr Rivera declined to provide the audio tape to the Minister. Article XI(3)(c) of the United States Treaty provides that a request for the extradition of a person who is sought for prosecution must be supported by, inter alia, a description of the facts, by way of affidavit, statement, or declaration setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it. Mr Rivera contends that the extradition request does not come close to satisfying that requirement. He says that the supporting material failed to establish that the alleged murder was committed while he was in the United States. He also says that the material failed to establish even that a murder was committed in the first place. Mr Rivera refers specifically to an autopsy report suggesting that the cause of the Victim’s death was undetermined. The autopsy report also indicated that the date of death was reported as 22 May 2002, whereas Mr Rivera left the United States on 20 May 2002. However, there was material before the Minister indicating that a medical examiner considered that the circumstances were highly suspicious of homicide and that the likely cause of death was smothering or a similar form of asphyxiation. Mr Rivera says that there was no evidence to support a conclusion that the death of the Victim was the result of any type of asphyxiation and that the medical examiner’s comments were nothing more than a guess. He says that the medical examiner’s guess was not based on medical science but on medical examiner’s own speculation involving the circumstances in which the body of the Victim had been found.

Decision

Reasons for decision

Mr Rivera’s written submissions were not directed expressly to the grounds enumerated above. However, in the course of oral argument, he indicated those parts of his submissions that were relied upon in support of identified grounds. The written submissions on behalf of the Minister provided the Court with considerable assistance in identifying those parts of Mr Rivera’s submissions that appeared to be directed to particular grounds. THE MINISTER’S DECISION On 21 July 2006, an acting First Assistant Secretary of the Criminal Justice Division of the Attorney-General’s Department made a recommendation to the Minister that he determine that Mr Rivera be surrendered to the United States and that the Minister sign and date a warrant for Mr Rivera’s surrender. The recommendation was accompanied by a briefing paper (the Briefing Paper). The Briefing Paper outlined the background to the recommendation and explained the statutory context in which the Minister was required to make a determination, including the statutory prerequisites for the making of the determination. A submission prepared by officers of the Minister’s Department, which was attached to the Briefing Paper (the Departmental Submission), contained a detailed consideration of the statutory prerequisites and dealt with possible grounds for refusal of surrender under the Act. The Departmental Submission addressed the five extradition objections and the other prerequisites for surrender contained in s 22(3) of the Act. The Departmental Submission also addressed various issues raised by Mr Rivera in representations made by him to the Minister in opposition to his extradition. The Departmental Submission also summarised the response to Mr Rivera’s representations received by the Minister from the United States. REASONING ON THE APPEAL Mr Rivera’s contentions in relation to several of his grounds of review overlapped each other. It is convenient to deal with his submissions in relation to the various grounds of review under several heads as follows. Prejudice at Trial because of Race or Religion: Ground (1) The question of whether there was an applicable extradition objection based on Mr Rivera’s race or religion was one of the matters required to be considered by the Minister. Mr Rivera claimed that he was of Hispanic ethnicity and Muslim religion and that Hispanics and Muslims are significantly under represented and systematically excluded from jury trials in the Barstow District of the County of San Bernadino, California, where his trial for the murder charged in the Complaint would ordinarily take place. His written submissions referred to detailed materials furnished by him to the Minister in support of his claim that he would not receive a fair trial. The Departmental Submission summarised Mr Rivera’s claims and the response from the United States to those claims. The Departmental Submission said that Mr Rivera’s contention that he may be prejudiced was speculative and based on his personal assessment that persons of different racial and religious backgrounds will not act fairly in considering the evidence at a trial. The Departmental Submission also referred to several features of criminal prosecutions in California that were considered by the author of the Departmental Submission to provide an adequate degree of protection against the form of prejudice identified by Mr Rivera.

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.