Lawrence RIVERA v UNITED STATES OF AMERICA - Judgment re: application to cross-vest proceedings to the Federal Court of Australia

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

13440/02 LAWRENCE RIVERA v UNITED STATES OF AMERICA

JUDGMENT 1 BELL J: The applicant moves on the notice for an order that the review of Magistrate O'Shane's determination made pursuant to s 19 of the Extradition Act 1988 (Cth) (the Act) be cross-vested to the Federal Court of Australia.

2 In support of the motion the applicant relied on his affidavit sworn on 21 November 2003. He also relied on written submissions in which he referred to a number of authorities.

3 Ms McDonald, who appears on behalf of the Commonwealth Director of Public Prosecutions, opposes the motion on the basis that to make the order at this time would be to see further delay in a case that has been attended by very considerable delay. In this context Ms McDonald submits that I would not be persuaded that it is in the interests of justice that the proceedings be determined in the Federal Court.

4 The proceeding that the applicant seeks to have transferred to the Federal Court is a review of a determination that he is a person eligible for surrender to the United States of America. Section 21(1) of the Act provides the person the subject of the order: "[M]ay, within 15 days after the day on which the Magistrate makes such an order, apply to the Federal Court or to the Supreme Court of the State or Territory, for a review of the order."

5 A right of appeal from the determination of a Judge of this Court or a Judge of the Federal Court on a review hearing is provided to the Full Court of the Federal Court of Australia.

6 A welfare officer attached to the Department of Corrective Services put the applicant in contact with a law firm to obtain legal advice after Magistrate O'Shane made the order. Thereafter the firm made application on his behalf for a review pursuant to s 21(1)(a) of the Act. The application was commenced in this Court.

7 The applicant, in his written submissions, asserts that his then lawyer, Mrs McGowen, ceased to act for him on 3 March 2003. Generally, as I understand it, he contends that the legal services that were provided to him were inadequate and that, had he understood that he had a right to have his review hearing conducted before the Federal Court, he would have exercised his right in that way.

8 The applicant drew attention to a passage in the judgment of Cooper J in Holt v Hogan (No.1) 1993 44 FCR 572 at 584: "The Act recognises that consistent with Australia's treaty applications in matters of extradition, persons against whom extradition is sought, have rights and protection under the same Act and the freedom to exercise those rights and contest extradition if they are so minded. A decision as to whether or not those rights are exercised must be free and informed."

9 In the applicant's submission the circumstance that he was inadequately advised as to the scope of the right of review provided by s 21 of the Act means that the commencement of the proceedings in this Court was not a decision made in the exercise of a free and informed choice.

10 I consider that Cooper J, in the passage that I have set out above, is not to be taken to be stating a principle as broad as that for which the applicant contends. The applicant was aware of the right to have the decision of the Magistrate reviewed and he exercised the right to do so on legal advice.

11 In order to understand one basis of the applicant's application, I should refer to s 21(6)(d) of the Act, which provides: "[T]he Court to which the application or appeal is made, shall have regard only to the material that was before the magistrate."

12 It would seem that the applicant would like to rely on material that was not before the Magistrate on the hearing of the review. He considers that there are decisions of the Federal Court of Australia that would admit of such a course being taken: Holt v Hogan; Todhunter v USA (1995) 57 FCR 70; and Wiest v Director of Public Prosecutions (1998) 23 FCR 472. The applicant is concerned that decisions of the Federal Court may not be applied by a Judge this Court.

13 The applicant's view derives in part from his understanding of the reasons for judgment given by Justice Greg James on 10 November 2003. His Honour dismissed a motion by which the applicant sought orders compelling the United States of America to produce certain documents. As his Honour's judgment makes clear, the production was sought for the purpose of the review. His Honour, taking into account the provisions of s 21(6)(d) of the Act, observed that, extraneous material could not be taken into account on the review and in this context observed at [22]: "In so far as the material is sought, as the motion claims, for the purpose of the review, the motion must be dismissed."

14 His Honour had earlier referred to Holt v Hogan and, noted Cooper J's observation, that extraneous material may be considered for the purpose of a bail application. I do not understand Greg James J to have been of the view that it was not open to him, or a Judge of this Court, to take into account decisions of the Federal Court of Australia. I do not understand his Honour to have expressed disagreement with the observations made by Cooper J in Holt v Hogan, a case that concerned the exercise of the discretion to grant bail to a person against whom proceedings under the Act were pending.

15 The only matter advanced by the applicant as to why the interests of justice would favour transferring the proceedings to the Federal Court appears to be his belief that a Judge of the Federal Court would decide the review differently to a Judge of this Court because the Judge of the Federal Court would be applying different law. In my view such a belief is misconceived.

16 I return to a consideration of the provisions of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW). Pursuant to s 5(1)(b)(ii)(C) where it appears to the Court that having regard to, "the interests of justice, it is more appropriate that the relevant proceeding be determined by the Federal Court", this Court shall transfer the relevant proceeding to the Federal Court.

17 The content of the "interests of justice" for the purpose of this provision was considered in James Hardie Company Pty Ltd v Barry (2000) 50 NSWLR 357. I note the checklist of factors to be taken into account that is set out, at [95], in the judgment of the Mason P.

18 On 4 September 2002 a warrant under s 12 of the Act for the arrest of the applicant was issued by a Magistrate at the Downing Centre Local Court. On 20 September 2002 the applicant was arrested at Orange and brought before the Local Court. He was remanded in custody to appear before the Central Local Court on 24 September 2002. The proceedings were adjourned on a number of occasions as summarised in the respondent's chronology. On 16 December 2002 the proceedings came on for hearing before Magistrate O'Shane who determined that the applicant was eligible for surrender to the United States of America. Pursuant to s 19(9) she issued a warrant.

19 Thereafter the applicant made a number of applications for bail to this Court. On 29 January 2003 bail was refused by Sperling J.

20 The review application was first before a Registrar of this Court for directions on 10 February 2003. The matter was again before the Registrar on 3 March 2003 when orders were made fixing a timetable.

21 It is relevant to note that on 2 April 2003 the applicant brought a further bail application. It was heard by Adams J. During the course of the application Adams J observed that it may be that this was a matter that might be cross-vested to the Federal Court. It is common ground that an observation to this effect was made.

22 In the event, no application for the proceedings to be transferred to the Federal Court was brought until some time in November 2003.

23 In his affidavit the applicant sets out matters that serve to explain, at least in some degree, the delay in his application to have the proceedings cross-vested. The fact remains that when the proceedings were before me at the callover on 12 September 2003 and the matter was fixed for hearing, no steps had been taken to file a motion in this Court or the Federal Court that the proceedings be transferred to the latter.

24 It would seem that some of the delay in the present proceedings has been brought about because the applicant sought a grant of legal aid. Pending the determination of that application the proceedings were in effect stalled.

25 I approach the matter upon the basis that the delay was not brought about by deliberate conduct on the part of the applicant. Nonetheless, the fact remains that there has been significant delay.

26 When I turn to a consideration of the interests of justice I take into account that, were I to transfer the proceedings, they would not come on for hearing before a Judge of the Federal Court until 2004. The likelihood is they would not be finalised before March 2004 at the earliest.

27 The right of review is a circumscribed one. Nothing put before me suggests that the applicant suffers any prejudice should his application for review be dealt with today in this Court rather than in several months time before a Judge of the Federal Court.

28 Important to my decision is the fact that the applicant has a right of appeal from a decision of this Court that is the same as the right of appeal from a decision of a Judge of the Federal Court.

29 Ms McDonald referred me to the observations of Gleeson CJ, McHugh and Gummow JJ in United Mexican States v Cabal [2001] HCA 60; 183 ALR 645 at [58]: "Where a person is found in Australia and an extraditable offence is alleged against him or her, this country is obliged to return that person to the country seeking extradition. Australia therefore has a very substantial interest in surrendering the person in accordance with its treaty obligations. If Australia fails, when requested, to return a person against whom there is probable cause for concluding that he or she has committed an extraditable offence, it breaches its obligations under international law. If Australia fails to comply with a treaty, the rules of international law entitle the other party to the treaty to repudiate or suspend the performance of its own obligations under the treaty. A repudiation or suspension by another country of its extradition treaty obligations to Australia would hinder this country's ability to enforce its own laws. In an era where much crime is transnational, the breakdown of international co-operation in apprehending criminals would be disastrous for the peoples of the countries concerned. Such a breakdown may do more than inhibit the apprehension of persons who have committed crimes against Australian law. If other countries think it not worthwhile to seek extradition from Australia, Australia may become a haven - at least for a time - for those who have committed serious crimes in other countries. They may well commit similar offences here."

30 To my mind the interests of justice require that weight be given to the desirability of the determination of the review in a timely way.

31 I am not persuaded, having regard to the interests of justice, that it is more appropriate that the proceeding be determined by the Federal Court. For these reason the motion is dismissed. **********

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