Rivera v Minister for Justice and Customs

4 So far as the Minister is concerned, the principal claims would appear to be those contained in paragraphs 1, 2, 3 and 4. I do not understand the relevance of the relief sought in paragraph 5 as against the Minister. Nor do I understand the relief sought in paragraph 14 as against the Minister. No evidence has been provided justifying any submission that in some way the Minister has interfered with the conduct by the applicant of his current application. 5 Order 20 rule 2 of the Rules provides as follows: '2(1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding: (a) no reasonable cause of action is disclosed; (b) the proceeding is frivolous or vexatious; or (c) the proceeding is an abuse of the process of the Court, the Court may order the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding. (2) The Court may receive evidence on the hearing of an application for an order under subrule (1).'

6 On the Minister's application for summary dismissal, an affidavit of Michael Stuart Rennie, affirmed 26 June 2006, has been read. Mr Rennie, being a senior lawyer employed by the Australian Government Solicitor, is instructed in this matter on behalf of the Minister by an officer of the Extradition Unit in the Attorney-General's Department of the Commonwealth. 7 Whilst certain affidavits have been sworn by the applicant in the proceedings, and his attention has been drawn to those affidavits, none of them have been read by him on the current application. He has, however, tendered a copy of a letter from McGowan Lawyers to the Minister, dated 4 June 2006, and also a bundle of documents produced by him. 8 In relation to applications of this nature, the principles to be applied are well established. If the applicant's case is so obviously untenable that it cannot possibly succeed, manifestly groundless, so manifestly faulty that it does not admit of argument, discloses a case which the court is satisfied cannot succeed, under no possibility could there be a good cause of action, or it is manifest that to allow them, that is to say the pleadings, to stand would involve useless expense, then the court should exercise its power to order summary dismissal. I should indicate that in this matter there have been no pleadings filed. 9 In General Steel Industries Inc v The Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130, Barwick CJ said: '... great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.'

10 Within the bundle of documents tendered by the applicant as exhibit R2, there is an 'Autopsy Protocol' of the San Bernardino County Coroner. That Autopsy Protocol would appear to have been prepared by Frank Sheridan, M.D. as the Chief Medical Examiner on 24 June 2002. In it he reports his findings on the body of one Kristina Louise Garcia whose body was found on 22 May 2002. 11 Under the heading 'DIAGNOSIS' it is recorded: '1. Adult female body found in shallow grave in desert. A Moderately advanced postmortem decompositional change with early mummification of the extremities. B Evidence of large animal activity and insect activity on body. C No evidence of blunt force or penetrating trauma. D No evidence of natural disease. E Toxicological examination (blood-stained fluid from chest; spleen) non-contributory.'

12 Under the heading 'CAUSE OF DEATH' the following is recorded: 'Undetermined, due to advanced post-mortem decompositional change.'

13 Under the heading 'COMMENT' the following appears: 'The cause of death cannot be determined from autopsy due to advanced postmortem decompositional change and toxicological examination is noncontributory, showing only an alcohol level of 0.04 %, a level that is not toxic and can be readily attributed to decomposition alone. The circumstances under which the body was found are highly suspicious for homicide, however, the most likely mechanism being smothering or a similar form of asphyxiation that would leave no traces in a decomposed body.'

14 As I would understand it the United States of America has indicted or wishes to indict the applicant, Mr Rivera, for the murder of the deceased female. In August 2002 the United States of America ('USA') requested Mr Rivera's provisional arrest in respect of an offence of murder. On 4 September 2002 a New South Wales Magistrate issued a provisional arrest warrant under s 12 of the Act for the arrest of Mr Rivera. On 19 September 2002 he was arrested under that provisional arrest warrant. My understanding is that he has been held in custody ever since. He was brought before a Magistrate following his arrest and remanded in custody under s 15 of the Act. 15 On 12 November 2002 the USA presented a request to Australia for Mr Rivera's extradition. On 16 December 2002 a Magistrate of the State of New South Wales determined under s 19 of the Act that the applicant, Mr Rivera, was eligible for surrender to the USA in relation to the extradition offence of murder. It is well established that the powers so conferred upon the Magistrate were of an administrative nature (see Director of Public Prosecutions of the Commonwealth v Kainhofer [1995] 185 CLR 528 at 538) 16 On 16 December 2002 the Magistrate ordered that he be committed to prison, in relation to the relevant extradition offence, to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under s 22(5) of the Act. It is under that warrant that the applicant is presently detained. 17 On 31 December 2002 the applicant applied to the Supreme Court of New South Wales under s 21 of the Act for review of the order made by the Magistrate under s 19(9) of the Act. On 28 November 2003 the Supreme Court of New South Wales confirmed the Magistrate's order. 18 On 10 December 2003 the applicant appealed to a Full Court of this Court from the decision of the Supreme Court. On 16 June 2004 that appeal was dismissed, it being determined that the applicant was eligible for surrender. 19 On 24 June 2004 the applicant applied to the High Court of Australia for special leave to appeal from the decision of the Full Court. That application for special leave was refused by the High Court on 10 December 2004. 20 On the hearing of the motion presently before the Court the applicant in the proceedings, Mr Rivera, has made it clear that he does not by his current proceeding wish to impeach the decision of the Magistrate that he is eligible for surrender nor the subsequent appeals from that decision. Whether Mr Rivera is to be surrendered to the United States in relation to the qualifying extradition offence now falls to be determined by the Attorney-General or the Minister for Justice and Customs in accordance with s 22 of the Act. 21 Subsections 22(2) and (5) are expressed as follows: '22(2) The Attorney-General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences. ... (5) Where the Attorney-General determines under subsection (2) that the eligible person is not to be surrendered to the extradition country in relation to any qualifying extradition offence, the Attorney-General shall order, in writing, the release of the person.'

22 During his time in custody Mr Rivera says that he has been physically abused and maltreated. Insofar as his application relates to the Minister, I do not understand the applicant to be relying upon those matters. 23 The gravamen of his complaint is that since the High Court refused to grant him special leave to appeal on 10 December 2004 the Minister, as the relevant Minister administering the Act, has failed to make a determination one way or another under s 22 of the Act. The facts do not support this submission. 24 The evidence is that on 13 December 2004 the Attorney-General's Department wrote to Mr Rivera requesting that he provide any representations he may wish to make in relation to the decision to be made by the Minister under s 22 of the Act. In due course Mr Rivera provided a submission in response to the Department's invitation to do so. The Department proceeded to invite the USA to provide comments in relation to Mr Rivera's submission and it did so on 13 April 2005. Those comments were then sent to Mr Rivera in order to give him an opportunity to respond to them. On 8 June 2005 Mr Rivera sought an extension of time within which he should respond. Ultimately on 21 July 2005 he provided his second submission in response to the comments provided by the USA. 25 The USA was invited to make comments in relation to Mr Rivera's second submission and did so on 6 October 2005. On 20 October 2005 the Department provided those comments to Mr Rivera for his response and on 15 January 2006 he provided a response. 26 As indicated earlier, the current proceedings were instituted by Mr Rivera on 23 January 2006, but eight days after Mr Rivera responded to the invitation to comment on the USA's comments in relation to his second submission to the Minister. 27 Mr Rivera submits that there has been an unreasonable delay in the processing of the matter under s 22 of the Act between 13 December 2004 and the present time. 28 He instituted separate proceedings seeking judicial review in this Court on 11 February 2005 which were summarily dismissed on 15 March 2005. 29 On 4 June 2006 solicitors then retained to represent Mr Rivera, McGowan Lawyers, wrote on his behalf to the Minister stating inter alia: 'It is submitted to you that there is a paucity of material to sustain the Extradition Proceedings on the basis advanced by the US authorities. My client asks you to personally read his Submissions and feels confident that you will come to a view that you will not approve of the Extradition Proceedings. ... We ask that you please acknowledge this correspondence on receipt, in order for me to prepare an application for Bail before the Federal Court on 27 June 2006, founded on the dilatory attention given to this matter by Officers of your Department.'

30 It seems to me unsustainable to suggest that the officers of the Minister's Department have been dilatory in their consideration of the matter up to the time of the institution of the current proceedings on 23 January 2006. The Department had been at pains to ensure that Mr Rivera had every opportunity to present whatever material he wished to the Department to ensure that his submissions could be taken into account by the Minister in exercising his powers under s 22 of the Act one way or another. 31 On the hearing of the application Mr Rivera has submitted that it is within the power of the Court to grant relief in the nature of habeas corpus. Alternatively he submits that there is an inherent power in the Court to order that he be released on bail. 32 In relation to the question of habeas corpus, Mr Rivera has directed my attention to observations of Rogers J, as his Honour then was, in Puharka v Webb [1983] 2 NSWLR 31 at 34-35 which were given in respect of an earlier statutory regime. He has also drawn my attention to decisions of single judges in this Court. Firstly, Cabal v Secretary, Department of Justice (Vic) ('Cabal') (2000) 177 ALR 306, where Gray J said at [39]: '… This court has no express statutory power to issue the writ [of habeas corpus], although the breadth of the range of remedies available under s 23 of the Federal Court of Australia Act 1976 (Cth) in matters within the court's jurisdiction probably encompasses orders of the kinds that would be made consequent upon it.'

33 In Timar v Minister for Justice and Customs [2001] FCA 295, Marshall J said, in the context of an extradition matter where the person in custody whose extradition to the Republic of Hungary had been sought was in poor health, at [19]: 'I am of the opinion that the Court has the power to grant an order for release if it is required to preserve the subject matter of litigation, namely Professor Timor (sic).'

34 In relation to the Court's power in proceedings such as this to order the release of a person on bail Mr Vorreiter, a solicitor from the Australian Government Solicitor who appears for the Minister, has, in my view, rightly pointed out that the Act makes express provision dealing with circumstances in which bail may be sought and granted and that the Act operates as a code. I accept that in the circumstances in which Mr Rivera presently finds himself there is no power in the Court to order that he be released on bail. 35 It is perhaps unfortunate that a determination has not as yet been made by the Minister under s 22 of the Act given that it is now some five months since Mr Rivera provided his last response to the Department. Section 22(2) clearly requires the Minister to make a determination whether a person is to be surrendered or not 'as soon as is reasonably practicable'. It would seem to me that circumstances could well exist where a person would be entitled to apply for relief in the nature of habeas corpus if there was protracted delay on the part of the Minister in making a determination after appeals had been finally determined and the Magistrate's decision that a person was eligible for surrender had been confirmed. 36 However, I fail to see how it could be said by Mr Rivera that he was unlawfully detained as at 23 January 2006 in circumstances where in the preceding 12 months every opportunity had been afforded to him and availed of by him to present his case to the Minister as to why a determination should be made under s 22 which was favourable to him. 37 Mr Rivera has submitted that new evidence is available which demonstrates that his detention is unlawful. It would seem to me that if new evidence were available which cast doubt upon a determination being made that he should be surrendered to the USA then the proper person to whom such a submission should be put is the Minister and not the Court. In Cabal, Gray J referred to a passage from a judgment of Deane J in Re Officer in Charge of Cells, ACT Supreme Court, Ex parte Eastman (1994) 123 ALR 478 at 480 where, amongst other things, his Honour said: 'It [referring to habeas corpus] is not ... available as a means of collaterally impeaching the correctness of a judgment or order made by a court of competent jurisdiction which is not shown to be a nullity.'

38 It is clear that the exercise by the Magistrate of her powers under the Act did not constitute an unlawful or an unconstitutional exercise by her of the judicial power of the Commonwealth. No relevant contravention of the Constitution has been identified by Mr Rivera in his submissions in which he has referred to powers as being unconstitutional. 39 In the circumstances it seems to me that the claims made by the applicant fall within the several expressions such as 'manifestly groundless' to which reference has earlier been made in these reasons for judgment. Accordingly, I consider that the proceedings should be dismissed in relation to all claims for relief against the first respondent. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham J.

Solicitor for the First Respondent: S Vorreiter of the Australian Government Solicitor

Solicitor for the Second Respondent: A Sapienza of the State Crown Solicitor's office