Rivera v United States of America

[2004] HCATrans 554

[2004] HCATrans 554

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S228 of 2004

B e t w e e n -

LAWRENCE JOHN RIVERA

Applicant

and

UNITED STATES OF AMERICA

Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 DECEMBER 2004, AT 12.44 PM

Copyright in the High Court of Australia

KIRBY J:   This application has been dealt with on the papers.  The respondent consented to this course.  The applicant is in custody and asked to make an oral submission.  However, he has not been produced.  In these circumstances the matter must proceed in his absence:  see Milat v The Queen (2004) 78 ALJR 672 and Muir v The Queen (2004) 78 ALJR 780.

The applicant raises a number of points.  Only two need to be noticed.  The first is his contention that he was denied basic rights in the failure to provide him with competent counsel in the administrative hearing before a magistrate under the Extradition Act 1988 (Cth), section 21. In the current state of the authority of this Court, his endeavour, by analogy, to invoke the holding in Dietrich v The Queen (1992) 177 CLR 292 is bound to fail: see State of New South Wales v Canellis (1994) 181 CLR 309 at 328.

The second argument is the applicant’s contention that section 19(5) of the Extradition Act is constitutionally invalid.  The circumstances of the proceedings before the magistrate did not present an issue apt to require consideration of the scope and validity of the subsection.  In these circumstances the present would not be a suitable case to decide questions of constitutional validity.  Extradition, as it has long been practised, does not involve the courts of the surrendering country conducting a pre‑trial on the merits of the person subject to the extradition application. 

In these circumstances, a provision such as section 19(5) of the Extradition Act is not surprising. Whether in some circumstances it could have an operation that impermissibly intruded into the functions of the courts dealing with a matter under the Constitution is not an issue that is ripe for consideration in the circumstances of this case. None of the other points argued for the applicant attract a grant of special leave. The application is therefore refused.

AT 12.46 PM THE MATTER WAS CONCLUDED