Rivera v United States of America

Application for leave to appeal expedited hearing decision - Wilcox J 10 On 12 February 2004 Wilcox J granted the respondent's application and ordered: ". . . the hearing of the appeal be expedited." Counsel for the respondent informed this Court that an expedited hearing had been sought because the appellant had been in custody since September 2002. She said the observations of the High Court in United Mexican States v Cabal & Ors (2001) 183 ALR 645 at [45] were also relied upon when seeking an expedited hearing. Reference was there made to Australia's international relations and standing which are involved in extradition cases. We accept that there are recognisable and compelling reasons of public policy for avoiding delay in extradition matters and the length of time during which the appellant has been in custody is an appropriate ground for ordering an expedited hearing. 11 While the appellant did not wish to make any oral submissions in support of his application for leave to appeal from the order made by Wilcox J, in written submissions he stated he wished: ". . . to appeal the respondent's interlocutory application to expedite the applicant's appeal due to that (sic) it contained wrongful evidence and that there can be no valid judgment given today because the proceedings are tainted." 12 The respondent opposed the grant of leave by repeating the abovementioned submissions made before Wilcox J and by reference to the relevant principles governing the grant of leave to appeal an interlocutory decision. These are set out in a decision of the Full Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, a decision which has been followed by subsequent Full Courts. In determining whether leave to appeal from an interlocutory decision should be granted, the tests to be satisfied are whether the decision at first instance was attended with sufficient doubt to warrant its reconsideration by an appellate court and whether substantial injustice would result if leave to appeal were refused. Leave is more readily granted where substantive issues, rather than points of practice, are at issue. 13 The order for expedition made by Wilcox J concerned a procedural matter, not a substantive issue, and in the light of matters referred to in paragraph 10 above, the correctness of his decision is not open to any doubt. Accordingly, leave to appeal Wilcox J's decision of 12 February 2004 is refused.

APPEAL ‑ THE stay REFUSAL DECISION - bELL J 14 The stay refusal decision was the only particularised ground of the substantive appeal as originally constituted and even after additional grounds were sought to be added without notice, this aspect of the appeal was argued discretely. In the hearing of this aspect of the appeal the appellant's written submissions were largely directed to issues identical to those argued before the primary judge. It is convenient therefore to address those submissions. 15 In the proceedings before the primary judge the appellant first relied on the majority decision of the High Court in Dietrich v Queen (1992) 177 CLR 292 ("Dietrich"), the High Court decision in New South Wales v Canellis and AB (1994) 181 CLR 309 ("Canellis") and the judgment of Kirby P (as he then was) in the New South Wales Court of Appeal decision in Canellis and AB (formerly Elkins) v Slattery (1994) 33 NSWLR 104 ("Canellis v Slattery"). In addition, the appellant sought relief under the provisions of Art 14(1) and (3) of the International Covenant on Civil and Political Rights ("ICCPR"). Further details of those submissions are set out in the primary judge's ex tempore reasons and it is not necessary to repeat them here. 16 Secondly, in reliance on Ping, L.S. and Anor v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 648 the appellant submitted that it is established that in administrative tribunals a refusal to allow legal representation may in some cases be a denial of natural justice. This was not a case of an administrative tribunal nor was it a case of legal representation being excluded. 17 Thirdly, the appellant submitted that if he were to exercise the right to remain silent, as provided under the Fifth Amendment to the Constitution of the United States of America, he would be unable to conduct the substantive proceeding. The Fifth Amendment relevantly reads: "No person shall . . . be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law . . ." He also submitted that if he conducted the substantive proceeding himself he was at risk of incriminating himself in respect of possible subsequent criminal proceedings conducted in the United States of America. 18 Counsel for the respondents submitted, correctly in our view, that the substantive proceeding before the magistrate was of an administrative character, and in those proceedings the appellant was represented by a solicitor and also by counsel. Counsel for the respondent also submitted correctly, in our view, that arguments or submissions put forward in a review of such proceedings do not go to the guilt or innocence of the appellant in respect of the charge laid. 19 Counsel for the respondent relied on the High Court's restatement of the Dietrich principle in Canellis, in particular the exclusion of the principle from any application in committal proceedings or civil proceedings and also relied on subsequent and unsuccessful applications to extend the Dietrich principle to the administrative law field. For example, Nicholson J in Commissioner of Taxation v La Rosa (2002) 196 ALR 139 said at [120]: "[120] Dietrich decided that the common law of Australia does not recognise the right of an accused person to be provided with counsel at the public expense but the courts have power to stay criminal proceedings that will result in an unfair trial. In Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20 the Full Court of the Federal Court held that the Dietrich principle had no application in the circumstances of a decision of a tribunal in deportation proceedings: see [17] and [18] of Nguyen. … The Full Court in Nguyen considered it was clear the High Court did not favour the extension of the Dietrich principle into the field of administrative review. … [122] …there is no requirement of procedural fairness that the taxpayer have legal or other representation at the tribunal hearing. The authorities referred to above are against it. The case for the taxpayer relies on an extension of the Dietrich principle which is only open to be made by the ultimate court itself." 20 With respect to Dietrich, the primary judge noted that the case established that a court has jurisdiction either to adjourn, or to order a stay of a criminal trial upon indictment, until such time as an indigent person charged with a serious criminal offence is provided with legal representation. She also noted that the High Court in Canellis has confirmed that the principle in Dietrich derives from an accused person's right to a fair trial. This right is part of the common law. 21 While the primary judge noted that the appellant is ultimately at risk of conviction in respect of a serious criminal offence, her Honour went on to note: "…I have before me an application under section 21 of the Extradition Act 1988 (Cth) to review the order that Magistrate O'Shane made on 16 December 2002. Desirable as it may be for [the appellant] to have the benefit of legal representation upon this hearing, the fair trial considerations with which the Court in Deitrich was concerned do not seem to be to be raised by the present proceeding…" 22 In the extradition review proceedings, the primary judge noted that the authorities did not mean it would not be open to vacate the hearing date in order to give the plaintiff the opportunity to obtain legal representation in an appropriate case. However, after taking all of the relevant factors into account her Honour found that there had been very considerable delay in the proceedings being brought on for hearing and noted at [14]: "The evidence suggests that the applicant is not eligible for a grant of legal aid from the Legal Aid Commission. It does not appear that he meets the criteria for the grant of pro bono legal assistance by the Bar Association of New South Wales, the Law Society, or under the pro bono scheme coordinated by the Public Interest Clearing House. Kingsford Legal Centre has made admirable efforts on [the appellant's] behalf to date without success. I do not consider it likely were I do [sic] to adjourn the proceedings for a short interval that [the appellant] would be able to obtain representation." In all the circumstances the primary judge refused the application to adjourn or stay the proceedings before her. 23 In repeating submissions made before the primary judge on this appeal, based on the Dietrich principle, the appellant argued that "any time there is a risk of self‑incrimination and a conviction, Dietrich applies automatically regardless of what type of proceedings it may be and Canellis re‑enforces (sic) that view." The appellant also relied on Holt, H.P. v Hogan, D. (1993) 44 FCR 572 at 584, in support of a submission that a person facing extradition is entitled to contest the application if so minded. He also relied on the observations of Kirby P (as he then was) in Canellis v Slattery as follows: "It is the duty of courts in proper cases, to ensure justice and to protect against unfairness . . . these consequences are achieved not by creating a new right at common law, but by utilising the long established powers of supervisory courts, by judicial review, to prevent the processes of the law themselves becoming an instrument of oppression or unfairness." He also submitted that the United States authorities: ". . . intend to renege . . . there would be avenues available to the (Californian) District Attorney to amend these charges once I'm sent back." He also sought to rely on the Dietrich principle on the basis that he needed legal representation to apply to the High Court for special leave as "in order to apply to the High Court you have to seek leave in person." 24 The administrative nature of proceedings to determine whether a person is eligible for surrender under s 19 of the Extradition Act is not in any doubt: see Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 538 per Brennan CJ, Dawson and McHugh JJ, at 540 per Toohey J and at 543 per Gummow J; see also Pasini v United Mexican States (2002) 209 CLR 246 at [16] and [18] ("Pasini"); such proceedings are not criminal proceedings. The appellant had the benefit of legal representation at these administrative proceedings before the magistrate. A review of the magistrate's orders for surrender was brought under the provisions of s 21(1) of the Extradition Act to the Supreme Court of New South Wales. In neither the s 19 proceedings, nor in the s 21(1) review proceedings is the appellant placed at risk of a conviction or of losing any chance he may have of an acquittal. Neither of those proceedings constitutes a trial; the appellant's trial in respect of the serious criminal offence with which he has been charged is for the requesting country. Since this is the United States of America the appellant will have a chance in due course to invoke both the Sixth and Fourteenth Amendments to the Constitution of the United States covering a "right to counsel" and to "due process" in respect of his trial for the criminal offence with which he has been charged. 25 Moreover, s 19(5) of the Extradition Act provides: "In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought." 26 This provision ensures that the merits of the criminal charge are not in issue in the proceedings concerning surrender and there can be no risk that the appellant will incriminate himself if the legislation is adhered to as it has been during the course of this matter. Having as its source and origin an accused person's common law right to a fair trial, the principle in Dietrich's case has, in our view, no application to a review of extradition proceedings under s 21(1) of the Extradition Act. 27 This view is consistent with unanimous views of the High Court in Canellis. In the joint judgment of Mason CJ, Dawson, Toohey and McHugh JJ at 328 their Honours said: ". . . the principle established by the decision in that case [Dietrich] is that a court has jurisdiction to grant an adjournment or order a permanent stay of proceedings at a trial until such time as an indigent person charged with a serious criminal offence is provided with legal representation necessary for a fair trial or resources for such representation. As the majority judgments made clear, the principle is based on, and derives from, the accused's right to a fair trial. There is no suggestion in the majority judgments that a court could exercise a similar jurisdiction in civil proceedings or in committal proceedings; nor do they suggest that such a jurisdiction could be exercised in favour of an indigent person charged with a criminal offence which is other than serious. Furthermore, and this is of decisive importance in the present case, the principle in Dietrich is concerned with the right to a fair trial of a party to criminal proceedings; . . ." 28 There is nothing in the facts of this case which would support the application of the principle in Dietrich to these extradition proceedings as contended for by the appellant in reliance upon the observations of Kirby P in Canellis v Slattery. Furthermore there is no requirement for the appellant to seek special leave in person from the High Court: see Milat v R (2004) 205 ALR 338. Accordingly, we reject the submission that the Dietrich principle can be invoked in these extradition proceedings on the basis contended because no risk of conviction or self‑incrimination can arise in these proceedings conducted in accordance with the Extradition Act, for the purposes of determining eligibility for surrender. 29 In addition to relying on the Dietrich principle, the appellant relied on Art 14 of the ICCPR which was considered in Dietrich's case. He also relied on the Human Rights and Equal Opportunity Commission Act 1986 (Cth), Sch 2. The reliance in each case was predicated on the misconception that the criminal charge against him was being determined in the proceedings conducted under the Extradition Act when the charge was not there being determined; all that was being determined was his eligibility for surrender. 30 Finally, on this aspect of the appeal the appellant alleged a denial of natural justice arising because he could not "participate" in the hearing as distinct from coming to court unrepresented. Having regard to the circumstances of this case, namely that the appellant had legal representation during the s 19 proceedings, and the evidence that he could not qualify for legal representation in the s 21(1) review and the fact that he will have the benefit of the Sixth and Fourteenth Amendments to the United States Constitution when he faces his trial in respect of his serious criminal charge, we are of the view that procedural fairness did not require the provision of legal representation at the expense of a State or Commonwealth instrumentality on the s 21(1) review.

APPEAL OF THE EXTRADITION REVIEW - Bell j 31 The matters relied on in the substantive appeal, other than the ground of appeal based on the Dietrich principle, were set out in one set of written submissions from the appellant as "grounds upon which the applicant challenges the decision of the magistrate to order his extradition" as follows: "b. Magistrate's decision was predicated through supporting documents that contain distorted and manufactured information, which was submitted by the respondent in order to pass the prima facie test as required by s 19(2) of the Act. c. The applicant has been denied the opportunity to correct wrongful evidence by submitting new materials that were not before the Magistrate. d. That the material in support of the extradition request was wrongly admitted by the Magistrate. That the proceedings are compromised by the failure by the Australian authorities to set the applicant "at liberty" after the expiry of 60 days from the date of arrest. e. That s 19(5) of the Act is unconstitutional. f. That the Magistrate incorrectly found that the requirements in Art XI(3)(c) of the Treaty were fulfilled." These grounds were identified by different letters in the consolidated submissions but otherwise remained the same. None of these proposed "grounds of appeal" which is what they seem intended to be was raised before Bell J and the respondent's primary submission was that they should not be permitted to be raised on this appeal before the Full Court. We agree that leave would be required to amend further the amended notice of appeal to add these grounds. None of these proposed grounds was mentioned in the amended notice of appeal set out in paragraph 3 above. Ground (3) becomes proposed ground (b) in the proposed further amended notice of appeal set out in paragraph 8 above.

Proposed Grounds (b) and (c) (wrongful evidence) 32 Section 21(6) of the Extradition Act relevantly provides: "6. Where the person or the extradition country: (a) applies under subsection (1) for a review of an order; (b) appeals under subsection (3) against an order made on that review; (c) . . . the following provisions have effect: (d) the court to which the application or appeal is made shall have regard only to the material that was before the magistrate." 33 It is necessary, in this context, to consider in more detail the appellant's notice of motion dated 10 December 2003 seeking production of an autopsy report and a videotape and also seeking to compel the attendance of a Californian senior detective Rob Aceivado on the appeal. In written submissions the appellant asserted: "The materials are vital to challenging my extradition to demonstrate my surrender would be invalid, tainted and unjust. The merits and admissibility of these materials are irrelevant for the purposes of this Notice of Motion." He sought the materials for the appeal before the Full Court, for any future bail applications and for any proceeding under s 22 of the Extradition Act. The basis upon which the appellant seeks to be excepted from the provisions of s 21(6)(d) set out above, and to introduce the evidence he is seeking to obtain, appears to be set out in the materials in support of that motion. Those materials in turn are only fully understood when reference is made to certain evidence before the magistrate. 34 The appellant did not wish to make oral submissions in respect of this aspect but relied on written submissions. There was an affidavit sworn by the appellant's solicitor and tendered in evidence before the magistrate. Leaving aside formal parts, she deposed as follows: "2. I have undertaken extensive inquiries including internet research with regard to the current allegations against my client. 3. I have assembled the following documents from the internet: a) Daily Press [annexed hereto and marked with the letter "A"]; b) America's Most Wanted [annexed hereto and marked with the letter "B"]; c) Desert Despatch [annexed hereto and marked with the letter "C"]. 4. I produce to this Honourable Court a bundle of material, representative of the research obtained." 35 Exhibited to this affidavit were internet versions of published material dealing with the crime with which the appellant has been charged. First there were three extracts from the "Daily Press" described as a Freedom Communications Newspaper. Only one extract appeared relevant to the appellant's application to lead evidence on a review or, in this appeal, or in any other applications for bail or in respect of surrender proceedings. This was the Daily Press extract dated Thursday 30 May 2002 under the headline "Murder suspect has record". It was indicated in the text of that document that the murder victim's body was discovered on 22 May 2002 and that "The cause of her death could not be determined in an autopsy." 36 Also exhibited to the affidavit was a document dated 20 September 2002 entitled "Lawrence Rivera Capture Report" which was described by the appellant's solicitor as "America's Most Wanted". That document relevantly contained the following: "San Bernadino cops say [appellant] became obsessed with a married coworker . . . on May 14, 2002 detectives say Rivera forced [the victim] to drive out to the Mojave Desert where he strangled her to death and hid her body." It also contained the statement: "San Bernadino investigators expect [appellant] to be extradited back to the US to face kidnapping and murder charges within the next month." The document also described the appellant as "Hispanic" and stated he "comes from a Mexican‑American family." 37 Thirdly, there were nine extracts from the Desert Despatch, the first of which described the disappearance of the victim from her apartment (thus predating the discovery of her body on 22 May 2002) and called for anyone who had information to contact the police. The last of these reported that the appellant had been taken into custody (which occurred on 19 September 2003). At least two of these extracts refer to a telephone interview said to have been given by the appellant to the Desert Despatch. 38 It is noted that all this material is hearsay material and in some instances clearly might involve multiple hearsay. In support of the application for production of the autopsy report, the videotape, and compulsory attendance of a Californian detective, correspondence passing between the appellant and Director of Public Prosecutions for the Commonwealth was annexed to an affidavit sworn by the appellant on 22 October 2003 in support of the motion to compel the production of evidence and the attendance of senior detective Rob Aceivado. 39 That annexure contained a letter dated 18 June 2003 in which the appellant requested production of "the autopsy report performed on [victim] and a video (VHS) copy of the documentary re‑enactment of the 'alleged' crime by 'America's Most Wanted'." It was also stated in that letter that the court would be provided with "an audio tape recorded conversation that took place in early August 2002 between Detective Aceivado and myself. The contents of the tape include an admission by your client that his police department repeatedly issued these bogus statements - only to undermine my defense and to turn the public against me. Aceivado will be needed at the court to authenticate this tape by testifying that it is in fact his voice that has been recorded . . . Aceivado will also be needed to authenticate video evidence from the TV program 'America's Most Wanted' which is a documentary re‑enactment of the crime according to police theory." The audiotape referred to was never sought to be introduced into evidence at any time including on this appeal and we say no more about the application to compel Detective Aceivado's attendance at the appeal for the purposes stated. 40 The appellant then stated that he wished to use the videotape to prove he cannot receive a fair trial because of "prejudicial pre‑trial publicity" and to prove the respondent deceived the magistrate in stating that he would not be eligible for the death penalty because he asserted "your clients have every intention of amending the charges with special circumstances once I am sent back to the United States, which clearly will make me eligible for the death penalty - not some bologna 25 years to life that you have sold to the magistrate." In the consolidated submissions, there was a reference to the fact that this material referred to the appellant's Hispanic background. In those consolidated submissions, the appellant advanced a proposition to which neither he nor his counsel before the magistrate on 5 March 2004, had given any prominence ". . . materials show that the appellant who is Hispanic was racially profiled by the authorities in the materials which would help the appellant raise an extradition objection under s 7 due to the fact that he cannot receive a fair trial upon his return to the United States." The appellant stated that he would use the autopsy report "to prove that the documents which were tendered to the magistrate are in fact invalid and inadmissible." This turned on his assertion that the autopsy report (which was not in evidence but was mentioned in hearsay material in evidence as described above) showed that the cause of death could not be determined whereas the supporting documentation provided to the court indicated it would be alleged that the victim was strangled to death. He went on: "The documentary evidence, audio, and video materials that will be provided to the courts contain overwhelming evidence that your clients are nothing mare (sic) than typical corrupt racist California police officers who have lied, concealed evidence, falsified documents, and who have proven that they will say and do anything to obtain my extradition . . . A letter will also be written to Christopher Ellison, Minister of Justice, outlining the situation. When this scandal hits the airwaves, I imagine his office may also come under scrutiny since he was the one that issued the section 16 notice to begin with. Since he is a politician and his political survival depends on good press, he'll probably be contacting your office. It is my sincere hope that over time you and your office will see that these police officers you are representing in this case, weren't worth the same headache, grief, and embarrassment that they will cause you as they have caused me. NEVER GIVE UP . . . NEVER SURRENDER." 41 The respondent replied relevantly as follows: "Section 21(6) of the Extradition Act 1988 states that where a person applies for a review of a magistrate's order in relation to extradition, the court to which the application or appeal is made shall have regard onlyto the material that was before the magistrate. I am currently in the process of preparing this material for the review. The "material" can include documents which were tendered to the magistrate but not accepted in evidence. The documents you refer to in your letter of 18 June as well as any examination or cross‑examination of Detective Rob Aceivado, is not material that was before the magistrate. Accordingly, it is not appropriate for the Australian authorities to organise for the appearance of Detective Aceivado nor to obtain the autopsy report or the video from America's Most Wanted." 42 The appellant relied on a decision of Spender J, Todhunter v Attorney‑General (Cth) (1994) 52 FCR 228 ("Todhunter"), as authority for the proposition that despite the clear words in s 21(6)(d) the appellant should be allowed to adduce evidence to correct what he described as "wrong evidence" submitted by the requesting country. Evidence was adduced in Todhunter before Spender J on the question of a limitation period in circumstances where such evidence had not been before the magistrate. Such evidence was permitted. His Honour stated the admission of evidence was permitted on the basis that an affidavit on the issue of the limitation period which was before the magistrate was "knowingly untrue." He also said he permitted reliance on fresh evidence including unsworn evidence "having regard to the exigencies of time and distance and the provisions of Order 33, rule 3." 43 In Pasini at [5] the High Court considered s 21(6) of the Extradition Act and the restrictions it imposed on the reception of fresh evidence on a review of a s 19 decision and on appeals to the Full Court of the Federal Court under s 21(3) or on a further appeal by special leave to the High Court. Such restrictions were not considered inimical to the exercise of the federal judicial power by a reviewing court and were treated by the High Court as clear restrictions. 44 The Full Court in Todhunter v United States of America and Anor (1995) 57 FCR 70 at 81 ("Todhunter v USA") recognised that the restriction in s 21(6)(d) "has particular point in light of the restriction which governs the conduct of the proceedings before the magistrate, as provided by s 19(5)." 45 In Republic of South Africa v Dutton (1997) 77 FCR 128 Hill J, after noting s 21(6)(d) adverts to the possibility that a review court may determine, for itself, that a person is eligible for surrender, went on to describe a s 21 review as "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." 46 We do not regard the fresh evidence, namely an autopsy report and a video tape of a TV program entitled "America's Most Wanted", as evidence capable of giving rise to any contention that the application for extradition by the United States of America was fraudulent or that the affidavit evidence of any deponent was "knowingly untrue" or that any undertakings given by the United States of America under s 22(3)(c) or (d) of the Extradition Act were intended to be breached or that the supporting documents contained distorted and manufactured information as alleged by the appellant. Nor do we regard such materials as capable of showing that the extradition proceedings are "invalid, tainted or unjust." 47 Even if an autopsy report did not make a determination about the cause of death (as per the "Daily Press" of 30 May 2002), that is not necessarily inconsistent with statements in the material supporting extradition that it will be alleged that the victim was strangled. Further, whether it be consistent or inconsistent, reception into evidence would be excluded by s 19(5) of the Extradition Act. 48 Even if on a TV program entitled "America's Most Wanted" in September 2002 it was asserted that kidnapping charges are being considered by the authorities in America, that is nothing to the point in relation to assurances sworn to in October 2003 for the purposes of s 22(3) of the Extradition Act. Furthermore, if it were stated on "America's Most Wanted" television programme that the appellant is Hispanic and from a Mexican‑American family that, without more, could not possibly persuade a court dealing with eligibility for surrender that the appellant will not receive a fair trial in the United States of America or constitute evidence that the appellant was not being sought for the offence of murder but for the purpose of "prosecuting or punishing" him on account of his race: see s 7(b) of the Extradition Act. 49 We are of the view that proposed additional grounds of appeal (b) and (c), if allowed, would not be successful. On prior occasions, Full Courts have refused leave in such circumstances: see Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 518 per Gummow J (with whom Sheppard J agreed); Zoeller v Federal Republic of Germany and Others (1998) 23 FCR 282 at 292. Leave to add the proposed grounds should be refused and it follows that the application to lead evidence on the appeal in support of those grounds, despite s 21(6)(d), should also be refused. We should add we have the greatest difficultly in discerning the relevance of the materials in either a subsequent application for bail or in s 22 proceedings. However, that would need to be determined in light of the circumstances of any such applications when made in the future.

Proposed Ground (d) - (evidence wrongly admitted) 50 This first limb of this proposed ground turned on the meaning of Art XI of the Treaty on Extradition between Australia and the United States of America ("Treaty"). The Extradition (United States of America) Regulations 1992 (Cth) ("Regulations") came into force on 21 December 1992 and incorporated the Treaty in the First Schedule. The history of these regulations was dealt with by Spender J in Todhunter at 233. The appellant submitted that documents contemplated by Arts XI(2), (3) and (4) would only be admissible under Art XI(5) if they "accompany" an extradition request. The appellant in argument construed "accompany" as meaning provided at the same time as the extradition request is made, or as he put it, documents were required by Art XI(5) to be "supplied contemporaneously with" the extradition request. The extradition request was made on 14 November 2002 and some supplementary material was received after that date. The appellant also relied on the fact that some supplementary material was received 60 days after the applicant's arrest thereby breaching, it was claimed, Art XII(4) of the Treaty enacted by Art 8 of the Protocol Amending the Treaty (incorporated into Sch 2 of the Regulations) which formed the second limb of this proposed ground of appeal. 51 The relevant Articles as amended by the Protocol provide: "ARTICLE XI (1) . . . (2) The request for extradition shall be supported by: (a) documents, statements, or other types of information which describe the identity and probable location of the person sought; (b) a description of the conduct constituting the offence; (c) a statement of law describing the essential elements of the offence for which extradition is requested; and (d) a statement of the law describing the punishment for the offence and the law relating to the limitation of legal proceedings. (3) A request for the extradition of a person who is sought for prosecution or who has been found guilty in his absence shall also be supported by: (a) a copy of the warrant or order of arrest issued in the requesting State for the arrest of the person for the offence; (b) a copy of the charging document, if any; and (c) 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. (4) A request for extradition of the person who has been found guilty of the offence for which extradition is sought, other than a person who has been found guilty in his absence, shall also be supported by: (a) a copy of the judgment of conviction, if available, or a statement by a judicial authority that the person has been found guilty; (b) information establishing that the person is the person to whom the finding of guilt refers; (c) a copy of the sentence imposed, if the person has been sentenced, and a statement establishing to what extent the sentence has been carried out; and (d) if the person has been found guilty but no sentence has been imposed, a statement affirming that it is intended to impose a sentence. (5) The documents which accompany an extradition request shall be received and admitted as evidence in extradition proceedings if: (a) in the case of a request from the United States, they (i) purport to be signed or certified by a judge, magistrate, or officer in or of the United States; and (ii) purport to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal of the requesting State or of a Minister of State, or of a Department or officer of the Government of the requesting State; (b) in the case of a request from Australia, they are certified by the principal diplomatic or consular officer of the United States resident in Australia, as provided by the extradition laws of the United States; or (c) they are certified or authenticated in any other manner accepted by the law of the requested State. ARTICLE XII (1) In case of urgency either Contracting Party may request the provisional arrest of the person sought pending the presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the Department of Justice in the United States and the Attorney-General's Department in Australia. The facilities of the International Criminal Police Organisation (Interpol) may be used to transmit such a request. . . . (4) A person who is provisionally arrested may be discharged from custody upon the expiration of sixty (60) daysfrom the date of arrest pursuant to the application of the requesting State if the executive authority of the requested State has not received the formal request for extradition and the supporting documents required in Article XI." The applicant's submissions on the first limb of this ground are covered by clear statements of principle from the courts. First, "accompany" as the word occurs is not to be read literally as in the appellant's construction: see Winkler v Director of Public Prosecutions. (1990) 25 FCR 29 at 96-97 ("Winkler"),where it was stated by Wilcox and O'Loughlin JJ: ". . . the phrase "accompanied by" is sufficiently elastic to include all material submitted at about the time of the request and before the expiration of any relevant cut‑off date; for example, a date by which, in the absence of the documents, the fugitive must be set at liberty . . . The purpose of a provision such as Art XI(2) (a reference to an Article pursuant to the Treaty as at 1976) is to ensure that the requested State has all of the information which it needs in order to determine the request." 52 Following Winkler, Spender J in Todhunter at (239-240) also considered the word "accompany" in Art XI(5) and found the word was used in the sense of "supplement" and is not to be construed as if it meant "supplied contemporaneously with" which we have already noted is the appellant's construction. His Honour at 243 regarded the word as apposite to include material provided before the making of an extradition request or after the making of such a request although it was not a word of unlimited flexibility. The Full Court upheld his Honour in Todhunter v USA at 84 as follows: "We would not interpret expressions such as 'supported by' and 'accompany' in Art XI as requiring physical connection. Rather, there is a temporal conjunction which must exist before the magistrate makes the determination under s 19 if documents are to be received and admitted as evidence in the proceedings before the magistrate pursuant to par (5) of Art XI. That view of the matter is consistent with unreported English authority discussed by Burchett J in Winkler v Director of Public Prosecutions (1990) 25 FCR 79 at 119. See also Harris v Attorney‑General (Cth) (1994) 52 FCR at 402-403. We should add that the English decisions and Winkler itself were decisions under provisions other than those with which we are concerned." 53 Art XII(4) in its terms has been satisfied on the facts as the request was received on 14 November 2002 together with supporting documents as required by Art XI. The fact that some supplementary material was received later has no effect on the satisfaction of Art XII(4) and Art XI. This disposes of the second limb of this proposed ground of appeal. 54 We do not regard this proposed ground of appeal, if permitted, as likely to be successful and accordingly refuse leave.

Proposed Ground (e); further proposed Grounds (a) and (b) in proposed notice of appeal of 2 April 2004 (Denial of procedural fairness; s 19(5) unconstitutional) 55 The appellant has contended that s 19(5) of the Extradition Act is constitutionally invalid. Section 19(5) reads: "In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought." The related procedural fairness issue is set out in paragraph 8 above. 56 In order to deal with the grounds it is necessary to revisit what occurred before the magistrate. The appellant had legal representation before the magistrate and his representative made a number of submissions in opposition to the application for surrender. 57 Section 19(2) of the Extradition Act is relevant to the facts before the magistrate and it provides as follows: "(2) For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if: (a) the supporting documents in relation to the offence have been produced to the magistrate; (b) where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate of any other documents - those documents have been produced to the magistrate; (c) the magistrate is satisfied 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 and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and (d) the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence." 58 Also relevant are the following parts of s 7 of the Extradition Act: "For the purposes of this Act, there is an extradition objection in relation to an extradition offence for which the surrender of a person is sought by an extradition country if: (a) the extradition offence is a political offence in relation to the extradition country; (b) the surrender of the person, in so far as it purports to be sought for the extradition offence, is actually sought for the purpose of prosecuting or punishing the person on account of his or her race, religion, nationality or political opinions or for a political offence in relation to the extradition country; (c) on surrender to the extradition country in respect of the extradition offence, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, religion, nationality or political opinions; (d) assuming that the conduct constituting the extradition offence, or equivalent conduct, had taken place in Australia at the time at which the extradition request for the surrender of the person was received, that conduct or equivalent conduct would have constituted an offence under the military law, but not also under the ordinary criminal law, of Australia; or (e) . . ." 59 At the s 19 hearing before the magistrate the appellant's counsel indicated the appellant wished to contest the application for surrender. It was indicated that the appellant conceded matters were in order so far as ss 19(2)(a) and (b) were concerned. It was also anticipated that the appellant did not "have an extradition objection" as referred to in s 19(2)(d). However, it was indicated the appellant's objections to surrender would be based on s 19(2)(c) and there would also be objections to the form of the American documents tendered before the magistrate. 60 Counsel then contended that: (i) the indictment contained an irregularity because it referred to murder as a charge under s 187A of the California Penal Code whereas the reference should have been to s 187(a). (There was expert evidence addressing this point); (ii) there was an irregularity in the proceedings because the United States authority informed the court that that appellant would not be subject to the death penalty and also the authorities would not seek it; (iii) internet searches revealed kidnapping charges were under consideration which raised a "speciality" issue; (iv) there were two irregularities in the documents; (v) the form of affirmation on a supporting affidavit had the effect, not of affirming but of denying the contents of the affidavit; (vi) the appellant might not receive a fair trial because of the "intensity and nature of the pre‑trial publicity." (It was mentioned that the appellant is identifiable as an Hispanic male or a Mexican American)" (vii) pre‑trial publicity in respect of flight which it was said might be relevant to the exercise of any discretion under s 19; and (viii) the appellant had prepared a list of answers to allegations made against him; 61 Counsel then said: "There are two final matters they are these. The first is that [the appellant] would seek to read to the court a statement of his own if the court would permit that course at the hearing . . . I've had a chance to look at what he wants to say and broadly speaking it is similar to but put in a slightly different way to some of the things that I put to the Court this morning. I respectfully make the submission that insofar as anything that Mr Rivera might say is legally extraneous to your Worship's consideration that's a matter that this court can take account of and ignore really if necessary but since the predicament in this Court is uniquely that of Mr Rivera I do ask the Court to extend its indulgence, if that's what it is, to permit the somewhat unusual course of allowing him to calmly put what he would like to put in his own words and with his own enunciation. They're not broadly speaking an enunciation of things he's going to run in his trial, he's going to talk about the death penalty, he's going to talk about questions associated with the way in which the delay has taken place before the application to this Court. There is going to be some mention of the way in which the police have marshalled evidence against him in California, there is a bit of hypothesis about what the Governor of California will do in terms of the death penalty and so on . . . What I'm putting to the Court is that he's not, except perhaps very incidentally, seeking to do that at all [lead evidence to contradict an allegation that he has engaged in conduct constituting an extradition offence as prohibited]. He's seeking to restate matters in another way that were put to the Court this morning by way of principal objection to his extradition, namely the question of the death penalty and other matters." When the magistrate queried the relevance of the material and enquired "What's the point of reiterating those matters that you put on his behalf this morning", the appellant's counsel answered: "The point is twofold your Worship. One, that the man whose predicament is affected by these proceedings wishes to do so and had instructed counsel to make application to the Court. The second is that if in putting those matters to the Court he can better able enunciate it than his counsel in court here then he ought to, in my respectful submission, be afforded that opportunity. But since it is not directed to contradict an allegation in relation to conduct constituting the extradition offence it is not, in my submission, clearly not, precluded by subsection 5 of section 19 from being heard in this court on that basis." 62 In refusing to allow the appellant to make a statement as described by his counsel the magistrate ruled as follows: "I'll accept from you the submission that section 5 [it was accepted on the appeal that this must have been a reference to s 19(5) given the context] has no application to the material that he wishes to present to the court but I'm not persuaded that the application is made out on any other basis so the application is refused." 63 In the context of raising the constitutional validity of s 19(5) of the Extradition Act it was submitted on behalf of the appellant that in refusing to "receive evidence" the magistrate denied the appellant natural justice and to the extent that s 19(5) was relied on to exclude the evidence it was invalid. It was submitted that "read literally s 19(5) operates to prevent the receipt of evidence which only incidentally contradicts an allegation, but is tendered for another purpose (such as making out an extradition objection), or is adduced to show that the conduct alleged does not constitute an extradition offence in the requesting state." 64 The respondent contended that the evidence was excluded on the grounds of relevance without necessary resort to s 19(5) and that a refusal to admit inadmissible evidence cannot constitute a lack of procedural fairness. 65 Read in context, we are of the view that the magistrate accepted for the purposes of the ruling that the statement sought to be read would not offend against the prohibition contained in s 19(5) of the Extradition Act. She ruled against admissibility because no relevance had been made out to justify the reception of the evidence. In that circumstance there is no adequate or proper factual foundation upon which a constitutional challenge to s 19(5) can proceed, and it is appropriate to follow the frequently stated practice of avoiding the determination of a constitutional issue unless necessary: see Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 642 and Telstra Corp Ltd v Hurstville City Council (2002) 118 FCR 198 at [48]. We also accept the submission of counsel for the respondent that what occurred, that is rejecting inadmissible evidence, cannot amount to a denial of procedural fairness. 66 For completeness, to the extent that specific matters were mentioned, that is, the death penalty, delays, police conduct in California and an hypothesis about the Governor in California, we accept a submission on behalf of the respondent that those matters are not relevant to s 19(5) proceedings although they may possibly be relevant under s 22 of the Extradition Act which covers a separate stage of extradition proceedings, namely, the surrender determination by the Attorney‑General. To the extent that the appellant wished to repeat matters already the subject of submissions by his counsel we also accept a submission made on behalf of the respondent that the matters referred to in paragraph 61 above were either not matters about which the appellant could give relevant evidence in s 19 proceedings, or if material, were proper for consideration by the Attorney‑General under s 22 of the Extradition Act. 67 In our view these proposed amended grounds of appeal in either the earlier or later versions are not likely to succeed and we refuse leave to further amend the amended notice of appeal to include them.

Proposed ground (f) (Magistrate incorrect in respect of Art XI(3)(c) requirements) 68 The appellant contended that the requirements of Art XI(3)(c) had not been met because the description of facts in the supporting affidavit material was inadequate as not sufficiently dealing with the issue of premeditation, an element of the offence as charged. 69 We reject this submission on the facts, as the supporting affidavit material filed on behalf of the respondent deals in considerable detail with circumstantial evidence capable of covering the issue of premeditation. As this proposed ground of appeal has no prospects of success we refuse leave in respect of it. 70 The appeal will be dismissed with costs. I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Sundberg and Crennan.

Associate: Dated: 16 June 2004 Applicant appeared in person on 2 April 2004

Solicitor for the Applicant: Morgan Ardino & Co

Counsel for the Respondent: M Gordon SC

Solicitor for the Respondent: Director of Public Prosecutions

Days of Hearing: 5 March 2004, 2 April 2004

Date of Judgment: 16 June 2004