Reyes v United States of America

Chronology of events 14 In order to provide the setting for the reasons which follows, it is helpful to set out a chronology of the events disclosed by the evidence: Date Description of Event 24 February 2020 The Attorney-General makes the determination under s 22 and issues the Surrender Warrant under s 23 26 February 2020 AGD notifies the US Department of Justice (USDOJ), the central authority in the US for extradition, of the surrender determination made by the Attorney-General on 24 February 2020. 28 February - 12 March 2020 Unparticularised communications occur between AGD and USDOJ concerning the applicant's surrender, the escort for the surrender and the proposed date(s) for the surrender. AGD and USDOJ agree on a timeframe for surrender from 2 April 2020. 11 March 2020 WHO classifies the spread of Covid-19 as a pandemic. 15-17 March 2020 US Office of Management and Budget instructs all US Federal Government agencies to adjust their operations to mitigate the pandemic, including by minimising face-to-face interactions and maximising telework. 16 March 2020 Australian Government puts in place border control measures which, as part the response to the Covid-19 pandemic, require all overseas arrivals into Australia to self-isolate for 14 days. 16 March 2020 AGD sends an email to USDOJ pointing out that US officials do not need to self-isolate in Australia for 14 days in total, only during the period of their transit in Australia and then for up to 14 days. AGD expresses the view that "surrenders could still proceed, provided that the USMS and FBI escorts self-isolate in their hotel for the turnaround time until their flight back to the US … and limit their public contact only to the extent necessary to conduct the surrenders". AGD asks USDOJ to indicate the willingness of US authorities to proceed with the surrender of the applicant by 24 April. 17 March 2020 USDOJ informs AGD that it has communicated the information in AGD's email of 16 March 2020 to USMS "and will be in touch as soon as we have any further information". 18 March 2020 AGD email to USDOJ asking for an update from USMS/FBI in relation to the surrender of the applicant. 19 March 2020 The Australian Government announces that, effective from 9 pm on Friday, 20 March 2020, border control measures in response to the Covid-19 pandemic would restrict non-citizens from entering Australia. 19 March 2020 US Department of State posts a Global Level 4 "Do Not Travel" advisory, urging US citizens and residents to avoid all international travel. 20 March 2020 AGD officer has a teleconference with officers of USDOJ and advises that it is unlikely that the Australian Border Force (ABF) would grant any exemption to law enforcement officers. 20 March 2020 Later that morning, ABF inform AGD that exemptions to the border control measures may be granted at the discretion of the ABF Commissioner on a case by case basis. 23 March 2020 The Attorney-General issues an Amended Warrant for the applicant's surrender under s 23 which identifies the FBI as the escort in place of USMS. 23 March 2020 AGD email to USDOJ confirming that, while there are travel restrictions currently in place in Australia, exemptions for travel may be granted in certain circumstances. AGD seeks USDOJ's advice on whether the US authorities are currently willing and able to proceed with the surrender of the applicant by 24 April, and indicate the information which will be needed if an application for exemption is to be made. 24 March 2020 AGD provides updated information to USDOJ concerning the categories of exemptions which the Commissioner of the ABF may consider. 24 March 2020 Australian Prime Minister announces a ban on overseas travel by Australians, subject to limited exceptions. 25 March 2020 USMS informs USDOJ that it is unable to effect the timely removal of the applicant and other fugitives from around the world. Expects that the applicant will not be able to be removed from Australia before the end of May or early June 2020. Says that as soon as the widespread travel restrictions are lifted, the USMS "will do everything in our power to effectuate these removals as promptly as possible following the resumption of regular government operations". 28 March 2020 USDOJ email to AGD stating that it has now asked USMS "to assume responsibility for the removal of [the applicant]" and states that it is "very unlikely" that the Marshals will be able to effectuate the removal of the applicant before mid-May because of "the public health concerns caused by the Coronavirus and the resulting travel restrictions". 31 March 2020 US Department of State issues Global Level 4 Health Advisory - Do Not Travel. 17 April 2020 Letter from USDOJ to AGD (received 18 April 2020) informing that it will be unable to remove the applicant from Australia before the "surrender deadline" on 24 April. Says that on receipt of notice of the Surrender Warrant, US law enforcement authorities began planning her removal from Australia in early April. Says that on 14 March 2020 USMS had learnt that travel to Australia for a separately scheduled extradition on 15 March would require the escorts to self-quarantine for 14 days, thereby forcing the postponement of the operation. 21 April 2020 AGD email to ABF seeking the Commissioner's approval for an exemption to the travel restrictions so as to enable USMS to travel to Australia to effect the surrender of the applicant (and another). 21 April 2020 ABF response to AGD seeking further documentation "to assist in progressing inwards travel exemptions for officers from USMS". 22 April 2020 Applicant's lawyers give notice of intention to make an application pursuant to s 26 should the applicant remain in custody after 23 April. 25 April 2020 USDOJ letter to ADG. Says that it has confirmed with USMS that, provided certain health, safety and logistical requirements can be met in the interim, it can remove the applicant from Australia by the end of May.

The statutory framework 15 Section 26(5) of the Act requires the Court, on a proper application, to order the release of the person from custody, subject, however, to the operation of subs (6). Subsection (6) qualifies the obligation imposed by s 26(5) by requiring that the Court not make the order for release when (relevantly) it is satisfied that the person has not been removed from Australia within the two month period "for any other reasonable cause", that is, a cause other than that stipulated in subpara (a). The evident purpose of these provisions is to protect the person from being held for an undue period of time in custody pending extradition: O'Donoghue v Attorney-General for the Commonwealth of Australia [2013] FCA 382 at [23]. 16 On their face, ss 26(5) and (6) contemplate only two kinds of order on an application under s 26(5): an order for the release of the person from custody or an order for the dismissal of the application. The latter order may be made only in the limited circumstances identified in subs (6). There is no express authority to order a release on conditions (such as place of residence, surrender of passport or with conditions to report) or to make an order in the nature of a grant of bail. 17 Section 26(6)(b) stands in counterpoint to subs(6)(a). The inclusion of the word "other" in subs (6)(b) indicates that the reasonable cause is to be found in circumstances other than danger to the life or prejudice to the health of the person. There was no suggestion that consideration of the danger to the life, or prejudice to the health, of the applicant is pertinent presently. 18 Sections 26(5) and (6) allow a departure from the scheme established earlier in the Act by which a person subject to extradition will ordinarily be held in custody. That is because, in the early stages of the extradition process, the person is to be granted bail only if there are "special circumstances" justifying such a release - see ss 15(6) and 19(9A). The Act proceeds therefore on the basis that the person will ordinarily be detained pending the completion of the process of extradition. Section 26(5) and (6) stands in contrast by requiring that the person be released in the stipulated circumstances, subject to the Court being satisfied of a s 26(6) matter. The subsections must contemplate that the discharge of the person from custody may give rise to difficulties in the extradition process but do not make such difficulties matters to be considered by the Court in relation to the release. When subs (6)(a) is inapplicable, the sole matter to be considered is whether the reason for the person not having been conveyed out of Australia within the two month period is reasonable. 19 The requirement that the Court be satisfied that the person has not been conveyed out of Australia within the two month period for any other reasonable cause requires an identification of the cause for the person not having been so conveyed and an assessment, objectively, of the reasonableness of that cause. That is to say, the assessment of reasonableness is not at large: it is directed to the particular cause of the person not having been conveyed out of Australia. For this reason, the submission of the respondents that the question for the Court's determination is whether it was unreasonable for the applicant not to have been conveyed out of Australia within the two month period cannot be accepted. 20 As the matter is to be assessed objectively, the subjective views of the persons responsible for the conveyance as to the reasonableness of the delay are material only insofar as they identify the actual reason for the conveyance not having occurred within the two month period. 21 The meaning of the term "for reasonable cause" or its cognates in other contexts has been considered in a number of the authorities. Limited assistance as to the meaning of the term can be derived from those authorities. In Taikato v The Queen (1996) 186 CLR 454, the Court considered a statute which provided that it was defence to a charge of possessing particular items in a public place if the person satisfied the court that he or she had "a reasonable excuse" for possessing it. With respect to the term "reasonable excuse", Brennan CJ, Toohey, McHugh and Gummow JJ said, at 464: The term "reasonable excuse" has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of "reasonable excuse" is an exception. (Citations omitted) 22 Later, at 466, their Honours continued: [T]he reality is that when legislatures enact defences such as "reasonable excuse" they effectively give, and intend to give, to the courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence. 23 In Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 at [108], McHugh J cited this passage with reference to the term "reasonable cause". 24 In Quinlivan v Portland Habour Trust [1963] VR 25, Sholl J considered whether an injured employee had "reasonable cause" for not providing notice of intention to bring common law proceedings within six months of the accrual of his cause of action. His Honour said at 28: I then turn to what seems to me quite a different question, namely, whether the applicant had reasonable cause for the omission to give the notice in this case, or, to put it, perhaps, more accurately, whether the failure to give the required notice was occasioned by any reasonable cause. One asks at once: "Reasonable in what sense?" I think the sub-section means to refer to cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man … 25 Counsel for the respondents emphasised that the object of the Act is to enable Australia to carry out its obligations under extradition treaties with other countries: Director of Public Prosecutions (Commonwealth) v Kainhofer (1995) 185 CLR 528 at 540. Counsel also noted that some interference with personal liberty is inevitably involved in the process of extradition: Vasiljkovic v The Commonwealth of Australia [2006] HCA 40; (2006) 227 CLR 614 at [32]. As Gleeson CJ observed in the same case, the detention of the extraditable person is accepted for the purpose of enabling an adjudication of the person's guilt or innocence "to be made in a foreign place, according to foreign law, in circumstances where Australia has no intention itself of bringing the person to trial for the conduct of which the person is accused", at [34]. I accept that that is so. However, as in most contexts, the assessment of the reasonableness of the cause for the extradition of the applicant not having been made within the two month period is a question of fact, to be made having regard to all relevant matters within the scope and purpose of the Act. 26 I proceed on the basis that the respondents have, at the least, an evidential onus of proof. I understood counsel for the respondents to accept that that was so. 27 On one view, an order that the person be released from custody under s 26(5) will not bring the extradition process in respect of that person to an end, as the determination of eligibility for surrender made by the Court under s 19 may remain in place, as may the determinations made by the Attorney-General pursuant to ss 22 and 23. On another view, the release from custody may terminate the extradition process. The determination of this case does not require resolution of that issue.

Findings as to the actual cause 28 The evidence indicates that the primary responsibility for effecting the conveyance of the applicant out of Australia lay with the US. Australia's role seems to have been of a facilitative kind. 29 Initially, it seemed that there was common ground between the parties as to the reasons for the applicant not having been conveyed out of Australia. However, as the applicant's submissions proceeded, it became apparent that there were some differences between the parties. 30 The respondents submitted that the public health concerns, and difficulties associated with international travel, which had arisen out of the Covid-19 pandemic were the causes of the applicant not having been conveyed out of Australia by 23 April 2020. 31 The applicant identified the cause more narrowly, namely, a failure by the US to provide an escort to take her from Australia to the United States. Her counsel accepted that the Covid-19 pandemic could, in some cases, be a reasonable cause for such a failure but submitted that the evidence was insufficient in this case to establish that it had been the cause. Counsel submitted that there was no adequate explanation for the US having failed to provide an escort permitting the surrender of the applicant within the two month period. He described the letter of 17 April 2020 from the USDOJ as an "ex post facto attempt to justify the failure of the USA to make proper arrangements for the applicant's surrender in a timely way". As part of this submission, counsel made a detailed critique of the respondents' evidence. 32 In my opinion, some of the critique by the applicant's counsel is justified. Much of the evidence in Ms Moore's affidavit is hearsay, or expressed in the third person and gives rise to the impression that there are events in the chronology which have not been disclosed to the Court. Many of the documents which Ms Moore annexed to her affidavit contain redactions. So far as the documents disclose, Ms Moore had personal involvement in only three of the steps set out in the chronology above. The first is that the letter from USDOJ of 17 April 2020 was addressed to her at the ICU. The second is that Ms Moore was the signatory to the letter to ABF on 21 April 2020. The third is that Ms Moore was one of the addressees in the email from USDOJ of 25 April 2020. 33 It is not clear why the USDOJ letter of 17 April was addressed to Ms Moore given that, before that time, it had been others within AGD who had been communicating with USDOJ. Furthermore, the USDOJ letter of 17 April was the first communication between the two departments since 28 March 2020. The evidence does not disclose whether there had been communications between 28 March and 17 April 2020 which prompted the USDOJ letter of 17 April 2020. Both the subject heading to the letter and its contents suggests that it was written with a view to providing evidence by way of explanation for the applicant not having been conveyed out of Australia before 24 April 2020. 34 However, Ms Moore was not required for cross-examination and no challenge was made to the admission into evidence of her affidavit. 35 Although the US has the primary responsibility for effecting the conveyance of the applicant out of Australia, the evidence as to the actual steps which it did take, or the actual arrangements which it did make (or endeavour to make) and the decisions it made is limited. There is for example, no affidavit from a member of the USMS or FBI or anyone else with actual involvement in the decisions and arrangements which were made. 36 Despite the applicant's critique of the respondents' evidence, there are a number of matters which support objectively the conclusion that it was the effects of the Covid-19 pandemic, including the consequential travel restrictions, which were the reasons for the applicant not having been conveyed out of Australia within the two month period. These matters include the classification by the WHO of Covid-19 as a pandemic on 11 March 2020, the instructions given by the US Office of Management and Budget in the period between 15 and 17 March 2020 to US Federal Government agencies to adjust their operations so as to mitigate the pandemic including by minimising face to face interactions, and the US Department of State posting a Global Level 4 "Do Not Travel" advisory by which US citizens and residents were urged on 19 March 2020 to avoid all international travel and restrictions imposed on entry into Australia by ABF. It would be unrealistic to think that these very significant developments were not influential in the response of USDOJ and USMS to the extradition of the applicant. 37 It is understandable that the US were reluctant to send Marshals to Australia in the face of the restrictions and alerts. It is reasonable to infer that the view was formed that such travel could not be undertaken without risk to those involved of exposure to, and contraction of, Covid-19. It is also apparent that the restrictions imposed by Australia on persons coming from overseas (initially 14 days of self-isolation and then prohibition on travel by non-residents) created difficulties. True it is that AGD was exploring means by the restrictions on the entry into Australia and the need for self-isolation may have been waived or mitigated in the case of the Marshals, but those measures went more to the convenience of the escort and the protection of Australia rather than to the risks to the health of the escorts involved. 38 In my view, the statement in the USDOJ letter that it was the Covid-19 pandemic and the desire "to minimise escort officers' exposure to and potential transmission of Covid-19" which led to steps not being taken to give effect to the extradition of the applicant should be accepted. That explanation is plausible. The strength of its plausibility is supported by the evidence that the same factors led the US not to seek to give effect to its rights of extradition of other persons. Its attitude was not confined to the applicant. 39 In short, I consider that the explanation proffered by the respondents for the applicant not having been extradited within the two month period should be accepted.

Reasonableness of the cause 40 Counsel for the applicant submitted that the omission to convey the applicant out of Australia before 23 April 2020 had been unreasonable for a number of reasons. For the most part, counsel relied on the cumulative effect of these matters. 41 Counsel referred first to the absence of any urgency in the actions of the US, in particular after the issue of the surrender determination on 24 February 2020. AGD had provided notice to the US on 26 February 2020 of the Attorney-General's surrender determination. The applicant submitted that the lack of urgency thereafter warranted by itself the conclusion that the conduct of the US was not reasonable. Counsel referred in this respect to the statement of Ms Moore: Between 28 February and 12 March 2020, [AGD] and the USDOJ communicated about the Applicant's surrender, in particular the escort for the surrender and proposed date(s) for surrender. In order to allow for the issue of an amended surrender warrant, the USDOJ and [AGD] agreed on a timeframe for surrender from 2 April 2020. 42 Counsel submitted that things seemed to have moved reasonably slowly in the period of over two weeks between 24 February and 12 March 2020 and, even then, the conveyance was not to occur before 2 April 2020. He submitted that persons acting reasonably should have anticipated, before the WHO declaration of the Covid-19 pandemic, that it was likely to cause difficulties in relation to the applicant's conveyance and would, accordingly, have acted with greater urgency. 43 In my view, one needs to be careful about applying the wisdom of hindsight to the circumstances. It is a notorious fact that the Covid-19 pandemic developed rapidly, as did the responses of countries around the world (including Australia and the US) to mitigate and avoid its effects. There is a sense in which its rapidity has overwhelmed the world. With 20/20 vision of hindsight, it can perhaps be seen that the developments which did occur could have been anticipated, but I do not consider that it can be said that either Australia or the US acted unreasonably in relation to the conveyance of the applicant by not anticipating the effects of the Covid-19 pandemic. This is not a case in which the US did nothing to give effect to the extradition until close to the expiration of the two month period and only then found itself in difficulties. It had been acting with the intention of giving effect to the extradition well within the two month period and had made plans to do so. 44 Counsel submitted that even after the declaration by the WHO of the pandemic on 11 March 2020, the US still did not act with expedition. Counsel noted that, with the exception of the "courtesy" communication from USDOJ on 17 March, it did not communicate at all with AGD until the teleconference on 20 March 2020 and after that its only communications in the two months were on 28 March and 17 April. 45 These submissions may be correct so far as they go, but it is evident that there must have been a number of intervening events and communications. For example, there must have been communications between USDOJ which preceded the Attorney-General's issue of the Amended Warrant of Surrender on 23 March 2020 substituting the FBI for the USMS as the escort. AGD's email of 16 March 2020 implies that there had been discussions between AGD and USDOJ concerning the ability to effect the extradition in the light of the Covid-19 pandemic. That email and the later emails indicate that both AGD and USDOJ were conscious of the two month limitation period. The USDOJ email of 28 March 2020 confirmed that it had "worked through" some of the issues associated with effecting the conveyance. It also confirmed that it asked USMS to assume responsibility for the conveyance of the applicant and said that it had done so "in light of the public health concerns caused by the Coronavirus and the resulting travel restrictions". 46 The evidence does not explain the switch back from the FBI to the USMS as the escort, save only that it was linked to the effects of the pandemic. Counsel for the applicant did not explain the significance which the Court should attach to the changes in the identification by the US of the agency which was to provide the escort. It is possible that some days were "lost" while this occurred, but it tends to confirm that active consideration was being given in the US as to the way in which the extradition was to be effected. Moreover, the email of 28 March indicates that the USDOJ had given consideration as to the ability to convey the applicant from Australia by 24 April. USDOJ told AGD that it was "very unlikely" that the Marshals would be able to effect the applicant's removal before mid-May. True it is, as counsel for the applicant submitted, that the USDOJ email did not link specifically the inability to effect the transfer before mid-May to the Covid-19 pandemic but, in my view, that is a reasonable and appropriate inference. 47 Counsel for the applicant submitted that the respondents had not explained why it is that the conveyance could be effected by mid-May but not by mid-April. I accept that that is so but note that even now there remains uncertainty as to when the extradition can be effected. It is also appropriate to take into account that in March the circumstances created by Covid-19 were much less predictable than is the case now 48 Counsel for the applicant pointed to evidence that, despite an implication in the USDOJ letter of 17 April that a lack of commercial flights between Australia and the US had been a factor, there had in fact been multiple available flights. I accept that that was so. But that says nothing about the risks, actual and perceived, in international travel. 49 Counsel for the applicant also emphasised that AGD had during March conveyed to USDOJ means by which account could be taken of the restrictions on international travel imposed by the ABF. It is true that there is no specific evidence from USDOJ as to its consideration of those alternatives. Again, however, I consider it appropriate to infer that the reasons lay in the Covid-19 pandemic. The USDOJ letter of 17 April confirms that Australia's requirement for international arrivals to self-isolate led to cancellation of arrangements previously made. It is also understandable that USDOJ and/or USMS would be concerned about the risks to the health of the officers comprising the escort by passing through airports in travelling to Adelaide where the applicant is detained and spending extended periods not only in the confined spaces of aeroplanes but also in close proximity to the applicant. That is especially so as there was no assurance that the applicant was not herself infected with the Covid-19 virus or a carrier of it. Furthermore, it is appropriate for the Court to accept that the USDOJ officers took account of the instruction from the US Office of Management and Budget issued on 15 and 17 March 2020 and of the Global Level 4 "Do Not Travel" advisory issued by the Department of State on 19 March 2020. It was reasonable for USDOJ and USMS to act in accordance with the advisory. In this respect, I note that the letter from USDOJ of 17 April 2020 stated: In light of these developments and in order to minimise escort officers' exposure to and potential transmission of Covid-19, the [USMS] informed [USDOJ] on March 25 that it would be unable to timely effect the removal of [the applicant] and many other fugitives from around the world. Any change in this approach depends on the status of the pandemic and the global response. The Marshals generally aim to respect both our State Departments' travel warnings and other countries' guidance and restrictions on travel. Once these are lifted and commercial flights are again more widely available, the Marshals expect to quickly resume regular removals.

Summary 50 In summary, there is some force in the critique which the applicant's counsel made of the quality and adequacy of the evidence presented by the respondents. However, I consider that the reasonable and appropriate inference is that the applicant was not conveyed from Australia by 24 April 2020 by reason of the Covid-19 pandemic and its effects and that constituted a reasonable cause for the conveyance not having occurred. 51 For the reasons given above, I am satisfied that there was reasonable cause for the applicant not having been conveyed out of Australia before 24 April 2020. Accordingly, the application is dismissed. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.