Lawrence RIVERA v UNITED STATES OF AMERICA - Judgment - Review of Magistrate's determination

•     IN THE SUPREME COURT
      OF NEW SOUTH WALES
      COMMON LAW DIVISION
  

13440/02 Lawrence RIVERA v UNITED STATES OF AMERICA

1 BELL J: The plaintiff, Lawrence John Rivera applies, pursuant to s 21(1)(a) of the Extradition Act 1988 (the Act), for a review of the order made by Magistrate O'Shane on 16 December 2002. Her worship determined that the plaintiff is eligible for surrender to the United States of America in relation to the extradition offence and issued a warrant pursuant to s 19(9) of the Act ordering that he be committed to prison to await surrender.

2 The review provided by s 21 of the Act, is a rehearing that is confined by subsection (6) to the material that was before the magistrate. The nature of the review was discussed by Hill J in Republic of South Africa v Dutton [1997] 77 FCR 128. His Honour said (at 136): "From these matters it seems to me clear that the review contemplated by s 21 is not a species of judicial review in the sense of a review limited to correcting legal error. It is a rehearing in which the Court undertaking the review is authorised to reach its own conclusions on eligibility for surrender, but a rehearing which is limited statutorily to the material before the magistrate. Fresh evidence it would seem would not be admissible. This is hardly likely to cause difficulty since the hearing before the magistrate, the subject of the review, is in any event, largely a hearing on documentary material."

3 The plaintiff appeared in person. He has not made any submissions in support of the review, save to invite me to have regard to those matters that were urged on his behalf before Magistrate O'Shane. I dealt earlier today with the plaintiff's application that the proceedings be transferred to the Federal Court of Australia pursuant to the provisions of s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987. In support of that motion the plaintiff took me to a number of authorities and provided me with detailed written submissions. I dismissed that motion for reasons earlier given.

4 The plaintiff then moved, without notice, that the hearing be adjourned, alternatively that the proceedings be stayed because he was without legal representation. In support of this application the plaintiff handed up written submissions referring me to the provisions of international instruments and citing relevant decisions of the High Court of Australia and the Federal Court of Australia.

5 I refused that application for the reasons earlier given. I embarked upon the hearing of the review. It is to be noted that the hearing date was fixed at the call up on 12 September 2003. As I observed in the course of my earlier reasons, these proceedings have been attended by very great delay. In part, I am informed that delay has come about by reason of the plaintiff's endeavours to obtain a grant of Legal Aid so that he might be represented on the hearing of the review. His application was unsuccessful and as I have earlier observed, I was not persuaded that there existed reasonable prospects that he might obtain representation were I to adjourn the proceedings for a short interval. In the result I have not had the benefit of assistance from the plaintiff in relation to the conduct of the review.

6 Ms McDonald, who appears on behalf of the Commonwealth Director of Public Prosecutions, has supplied me with written submissions concerning the nature of the review and the matters to which I am to have regard in the conduct of it. She also drew my attention to a matter that was pressed on the plaintiff's behalf before magistrate O'Shane relating to the authentication of the documents upon which the defendant relies. I will return to that matter.

7 Prior to embarking upon a determination of whether a person is eligible for surrender in relation to an extradition offence for which the surrender of the person is sought by the extradition country, it is necessary for the magistrate to be satisfied of the matters set out in s 19 (1) (a) - (d) of the Act.

8 The first matter in this respect is that the person is on remand under s 15 of the Act. It is uncontroversial that the applicant was arrested on 19 September 2002 pursuant to a provisional arrest warrant issued under s 12 of the Act, the warrant having been granted by a magistrate on 4 September 2002.

9 The second matter necessary to found the magistrate's jurisdiction to conduct the determination of eligibility for surrender is that the Attorney General has given a notice under s 16 (1) of the Act in relation to the person. The notice of receipt of extradition request, dated 14 November 2002, is in evidence. It was executed within the time required for the purposes of s 17 of the Act.

10 In the respondent's written submissions it is asserted that the signed s 16 notice and the extradition documents from the United States of America were served on the plaintiff's solicitor on 18 November 2002. It is not apparent that there was evidence before the magistrate of that fact and I put it to one side. It seems to me that it is necessary to establish that a notice in conformity with the requirements of s 16 (1) in relation to the plaintiff was issued, I am satisfied of that fact. 11 The requirements of s 19(1)(c) and (d), namely, that an "application is made to a magistrate by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person" and that "the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings" were satisfied and there has been no issue taken in these respects either before the Magistrate or on this review.

12 I now turn to the matters to which it is necessary for the Court to have regard before a determination that a person is eligible for surrender may be made. They are set out in s 19(2)(a) - (d). The extradition country bears the onus in respect of the matters to which subparagraphs (a) to (c) direct attention. The onus is upon the person whose extradition is sought to establish the matter referred to in subparagraph (d).

13 I turn firstly to s 19(2)(a). The plaintiff is only eligible for surrender in relation to an extradition offence for which his surrender is sought by the extradition country if "the supporting documents in relation to the offence have been produced to the magistrate." "Supporting documents" are defined for the purposes of the Act in s 19 (3). In relation to an extradition offence, these documents include where the offence is an offence of which the person is accused, a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant."

14 Exhibit 2 bears the seal of the Department of State of the United States of America over a gold ribbon that secures the bundle of documents affixed thereto. The first of the documents thus affixed bears the red seal of the Department of Justice over a red ribbon to which the balance of the documents are attached.

15 The assistant authentication officer of the Department of State certifies on 31 October 2002 that the documents annexed to the certificate are under the seal of the Department of Justice of the United States of America.

16 The document under the seal of the Department of Justice certifies that Lisa Burnett was at the time of signing the accompanying document the Deputy Director of the Office of International Affairs Criminal Division, United States of America, Washington DC.

17 I turn to the matter that was urged on the plaintiff's behalf before Magistrate O'Shane. Under the two sealed documents appears that the certification of Lisa Burnett that the affidavit of Michael Firman, Deputy District Attorney for the County of San Bernadino, South California, together with the attachments thereto are authentic and duly executed pursuant to United States law. This certification bears the date October 28, 2002. Annexed to it is a document titled "Affidavit in Support of Extradition", a twelve page document sworn by Michael Firman, before James Dorr, a judge of the Superior Court, State of California, United States of America. The latter bears a date inserted in manuscript. The month is legible and reads October. Before Magistrate O'Shane it was contended on the plaintiff's behalf that the date upon which it was subscribed before his Honour was 29 October. The defendant contends that it bears the date 24 October. If it were dated 29 October, it would not be conformable with the certification of Ms Burnett. 18 While the proposition for which the plaintiff contended may be arguable, I consider the document appears to have been subscribed before Judge Dorr on 24 October 2002. I reject the proposition that there is a material irregularity in the authentication of the affidavit of Mr Firman that forms part of exhibit 2.

19 Annexed to the affidavit of Mr Firman as exhibit 1 B is a copy of the warrant issued by the United States of America, the extradition country, for the arrest of the plaintiff for the extradition offence, namely, murder, an offence contrary to s 178(A) of the Penal Code of California. The second page of the warrant bears the seal of the Superior Court of California, County of San Bernadino, dated 15 October 2002 certifying it to be a true and correct copy of the warrant filed in the court. I am satisfied that the supporting document is a duly authenticated copy of the warrant for the purpose of s 19(3)(a) of the Act.

20 The next supporting document to which it is necessary to refer is that described in s 19(c)(i) and (ii), a duly authenticated statement in writing setting out a description of and the penalty applicable in respect of the offence and a duly authenticated statement in writing setting out the conduct constituting the offence. As to (i), I take into account the contents of paragraphs 25 and 26 of Mr Firman's affidavit sworn 24 October 2002 (the principal affidavit). As to (ii), exhibit 1 A to the principal affidavit is the felony complaint that identifies the conduct constituting the offence. In addition I have regard to paragraphs 7 and following in the principal affidavit under the heading "Murder of Christina Louise Garcia Summary of Facts and Law".

21 In addition to the supporting documents to which s 19 (3) refers, it is necessary for me to have regard to the provisions of schedule 1, Article XI, (2) and (3) of the Extradition (United States of America) Regulations. Relevantly, those provisions require that a request for extradition be supported by documents, statements or other types of information which describe the identity and probable location of the person sought within the meaning of Article XI (2) (a). In this respect I have regard to paragraph 24 and paragraphs 32 and 33 of Mr Firman's principal affidavit.

22 Article XI (2) (b) requires a description of the conduct constituting the offence. This is one of the occasions in which the requirements of the Regulations overlap with the terms of s 21 of the Act. I record my satisfaction that the request for extradition is supported by a description of the conduct constituting the offence by reference to the paragraphs of the principal affidavit to which I have already referred, together with exhibit 2 setting out Title 8 of the Penal Code of California, Chapter 1, Homicide. The latter addresses the requirements of Article XI (2) (c).

23 It is necessary for the purposes of Article XI (2) (d) that the request for extradition be supported additionally by a statement of the law describing the punishment for the offence and the law relating to the limitation of legal proceedings. This is addressed, in part, by exhibit 2 to the principal affidavit and by the contents of a further affidavit sworn by Mr Firman on 14 November 2002.

24 The latter affidavit is certified by Mary B Troland, as being authenticated and duly executed pursuant to the law of the United States. The certification is dated 18 November 2002. The affidavit itself is expressed to have been subscribed before Judge Dorr. The affidavit and the certification are attached to a document under the seal of the United States Department of Justice attesting to the circumstance that Ms Troland, whose name is signed on the accompanying certificate, is and was at the time of signing the same Deputy Director, Office of International Affairs, Criminal Division, US Department of Justice.

25 Turning to the requirement that there be a statement of the law relating to the limitation of legal proceedings, I return to the principal affidavit. In paragraph 30, Mr Firman sets out the provisions of s 799 of the Californian Penal Code concerning the limitation for the prosecution of offences punishable by death or by imprisonment for life. There is no limitation on the date of commencement of such prosecutions. Paragraph 31 deposes to the circumstance that since the plaintiff's potential exposure is to a term of twenty-five years to life imprisonment, the matter falls within the provisions of s 799 of the Californian Penal Code. A copy of this provision is annexed as exhibit 3 to the affidavit. I am satisfied that the requirements of Article XI(2)(a) - (d) were satisfied in that documents answering the description therein are in evidence.

26 Article XI(3)(a) requires that a request for extradition of a person who is sought for prosecution be supported by a copy of the warrant or order issued in the requesting State for the arrest of the person for the offence. I have already dealt with this topic. I am satisfied that a copy of the warrant has been produced in support the request for extradition.

27 Additionally, Article XI(3)(b) requires a copy of the charging document before the Court. Again I am satisfied as to the proof of that matter. I refer in this respect to exhibit 1A to Mr Firman's principal affidavit.

28 Article XI(3)(c) requires 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. In this respect, Ms McDonald has drawn my attention to the decision of the Full Court of the Federal Court in Todhunter v United States of America (1995) 57 FCR 70 at 89: "The contents of par (3)(c) of Art XI should be set out again: "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." The primary judge held that what was required was a description of facts providing reasonable grounds for believing that each element of the United States offence for which extradition was sought had been committed. … All of this suggests that par (3)(c) of Art XI was directed to requiring something more than the supporting documents, namely, an affidavit, statement or declaration which gave a description of the facts and set forth reasonable grounds for believing that the person for whom the extradition was sought had in fact committed an offence under the applicable law of the United States (at 90)."

29 The defendant relies on the contents of Mr Firman's principal affidavit and, in particular, paragraph 7 and following to which I have referred. I consider in light of that material that the request for extradition is supported by a description of the facts on oath that sets forth reasonable grounds for believing that the offence of the murder of Christina Louise Garcia has been committed and that the plaintiff committed it.

30 In this respect I note that my role is not that of the tribunal of fact trying the issue of the commission of the extradition offence, but rather my satisfaction that the request for extradition is supported by a sworn statement of facts and circumstances such as to give rise to reasonable grounds for belief that the plaintiff committed the offence.

31 In directing attention to the provisions of Article XI, I have addressed the consideration with which s 19 (2) (b) is concerned.

32 I turn now to the requirements of s 19(2)(c). This provision requires satisfaction that "if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted … that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia".

33 The offence for which the plaintiff's extradition is sought is the offence of murder. Provision is made for that offence by s 87 of the Penal Code of California. It is defined in these terms: "Murder is the unlawful killing of a human being or a foetus with malice of forethought". 34 The facts alleged in support of the extradition offence allege the unlawful killing of a human being. It is sufficient for me to refer to the provisions of the Crimes Act 1900 (NSW) and in particular to s 18 that deals with murder and to the provisions of Part 3 Div. 1 dealing with manslaughter.

35 I am satisfied that if the conduct constituting the offence in the United States or equivalent conduct, had taken place in New South Wales it would have constituted an extradition offence in New South Wales.

36 The final matter to which I must direct attention are the requirements of s 19(2)(d). An onus is on the plaintiff to satisfy the Court that there are substantial grounds for believing that there is an extradition objection in relation to the offence. The concept of an extradition objection is dealt with in s7 of the Act.

37 It is sufficient to note that no matters have been advanced supporting the contention that there exist substantial grounds for believing that there is an extradition objection in relation to the offence.

38 Having taken into account the material comprised in exhibits 1, 2 and 3, being the material that was before the Magistrate, I am of the view that the plaintiff is a person eligible for surrender within the meaning of s 19(2) in relation to an extradition offence; namely the offence of murder contrary to s 187 of the Penal Code of California. I confirm the order made by Magistrate O'Shane on 16 December 2002 pursuant to section 19(9)(a) of the Extradition Act 1988.

39 For these reasons the orders that I make are as follows: Orders 1. Pursuant to section 21(6)(g) of the Extradition Act 1988 the plaintiff Lawrence John Rivera is eligible for surrender within the meaning of section 19(2) of the said Act in relation to the offence of the murder of Christina Louise Garcia contrary to section 187(A) of the Penal Code of California, being an offence charged in the felony complaint a copy of which is exhibit 1A to the affidavit of Michael B Firman sworn 24 October 2002. 2. The orders made on 16 December 2002 by Magistrate O'Shane are confirmed.

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