Rivera v Minister for Justice & Customs

[2007] HCATrans 623

[2007] HCATrans 623

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S390 of 2007

B e t w e e n -

LAWRENCE RIVERA

Applicant

and

MINISTER FOR JUSTICE AND CUSTOMS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 24 OCTOBER 2007, AT 9.42 AM

Copyright in the High Court of Australia

KIRBY J:   Mr Lawrence Rivera is a citizen of the United States of America (“the United States”).  He arrived in Australia on or about 22 May 2002.  Later that year, he was arrested pursuant to a provisional arrest warrant issued under the Extradition Act 1988 (Cth) (“the Act”), s 12. He was subsequently determined to be eligible for surrender to the United States in relation to the offence of murder, provided for in s 187(a) of the Californian Penal Code. The applicant challenged that determination. Ultimately, the challenge came before this Court on an application for special leave to appeal. However, on 10 December 2004 the Court (constituted by Kirby and Callinan JJ) refused such leave.

On 31 August 2006 the Minister for Justice and Customs (“the respondent”) determined that the applicant be surrendered to the United States. The Minister issued a surrender warrant under s 22(3) of the Act. The applicant challenged that determination. He raised a large number of objections to the respondent’s surrender decision. The issue identified by the trial judge as being potentially of substance was whether the requirement of s 22(3)(c) of the Act had been complied with so as to sustain the Minister’s surrender determination.

The applicant’s second challenge came on for hearing before Moore J in the Federal Court of Australia.  His Honour decided that there was material before the respondent Minister to support his conclusion that the undertaking given to Australia in respect of the applicant was one which, in the system of law and government of the United States, had the character of an undertaking by virtue of which the penalty of death would not be carried out on the applicant if the applicant were convicted of murder as charged, at his trial.  His Honour also concluded there was no substance in any of the other grounds argued by the applicant.

The applicant thereupon appealed to the Full Court of the Federal Court of Australia. His appeal came on for hearing before a Full Court constituted by Emmett, Conti and Buchanan JJ. Their Honours unanimously dismissed the applicant’s appeal. In doing so they rejected 11 grounds which had been advanced by the applicant. In his written case in this Court, the applicant, who was not legally represented, has propounded eight grounds which are said to constitute questions that would arise, were this Court to grant special leave. Those grounds include the challenge to the constitutional validity of s 22 of the Act; a challenge to the sufficiency of the undertaking given by the United States in respect of the death penalty for the purposes of s 22(3)(c) of the Act; a challenge to the sufficiency of the evidence against him; and various other challenges addressed to procedures, natural justice and alleged violations of international law in the conditions in the prisons in California where the applicant would, by inference, be detained pending and during his trial.

In this Court, Heydon J ordered expedition of the hearing of the application on the papers.  The application has been considered with priority by a Full Court constituted as at present.  We have considered the reasons of the judges of the Federal Court and the written case of the applicant.  Because of the provisions in the law of the United States, notably in the State of California where the death penalty is still available and is still carried out, we have given the closest attention to the assurance upon which the respondent has relied.  According to the record, on 28 February 2005, the Embassy of the United States in Canberra provided to the government of Australia a diplomatic assurance in the following terms:

“Based on the information provided by the Deputy District Attorney for San Bernardino County, California, and in accordance with Article VIII of the 1974 US‑Australia Extradition Treaty, as amended by Article 5 of the 1990 Protocol amending the Extradition Treaty, the United States Government assures the Government of Australia that the death penalty will not be sought or imposed against Lawrence Rivera.”

A further assurance was given on 28 September 2005 by Mr Michael Ramos, the then recently elected District Attorney with relevant powers, stating that ‘[T]he San Bernardino County District Attorney’s Office will not seek to impose the death penalty on Lawrence Rivera on the instant matter’.

In the light of these assurances and materials provided to the Full Court of the Federal Court of Australia, and recorded in the reasons of Moore J and the Full Court, there is no reason to doubt that the assurance afforded by the United States to the Government of Australia, as envisaged by s 23 of the Act, is in appropriate terms. There is no reason to doubt that it would be honoured, in the event that the applicant is surrendered to the United States. We are unconvinced that any error has occurred in the disposition of this issue by the Full Court of the Federal Court. None of the other grounds propounded by the applicant for the grant of special leave is reasonably arguable. An appeal to this Court would not enjoy reasonable prospects of success, were special leave granted. Special leave must therefore be refused.

The applicant was not legally represented either before the primary judge or before the Full Court of the Federal Court of Australia.  Because he is not legally represented before this Court, his application has been dealt with in accordance with r 41.10 of the High Court Rules.  Pursuant to r 41.10.5 of those Rules, we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave and I now publish that disposition signed by Justice Heydon and myself.

AT 9.47 AM THE MATTER WAS CONCLUDED