Rivera v United States of America [2004] FCAFC 154

FEDERAL COURT OF AUSTRALIA

Rivera v United States of America [2004] FCAFC 154

EXTRADITION – Whether "Dietrich" principle applies to extradition proceedings – Application to lead evidence by person whose extradition is sought – Meaning of requirement that documents "accompany" a request – Procedural fairness – Requirement of reasonable grounds for believing an offence committed and premeditation. CONSTITUTION – Constitutional validity of denial of application to lead evidence by person whose extradition is sought. PRACTICE AND PROCEDURE – Application for leave to appeal decision granting expedited hearing of an extradition review – Application for delivering up of material claimed to be in possession of respondent. Constitution of the United States of America Fifth, Sixth and Fourteenth Amendments Extradition Act 1998 (Cth) ss 7(b), 11, 19(2) and (5), 21(1) and (3), 21(6)(d), 22(3)(c) and (3)(d) Extradition (United States of America) Regulations 1992 (Cth) Sch 1 and Sch 2 Federal Court of Australia Act 1976 (Cth) s 24(1A) Federal Court Rules 1976 (Cth) O 80 r 4 Human Rights and Equal Opportunity Commission Act 1986 (Cth) Sch 2 Judiciary Act 1903 (Cth) International Covenant on Civil and Political Rights. Opened for signature 19 December 1996. 999 UNTS 171.61LM 386 (entered into force 23 March 1976) ("ICCPR"). Art 14.1 and Art 14.3 Protocol Amending the Treaty on Extradition Between Australia and the United States of America of May 14, 1974. Seoul, 4 September 1990. [1992] ATS 43 (entered into force 21 December 1992). Art 7 and Art 8 Treaty on Extradition between Australia and the United States of America. Washington, 14 May 1974. [1976] ATS 10 (entered into force 8 May 1976). Arts XI(2), (3), (4), (5) and Art XII(4) Canellis and AB (formerly Elkins) v Slattery (1994) 33 NSWLR 104 noted Commissioner of Taxation v La Rosa (2002) 196 ALR 139 referred to Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 followed Holt, H.P. v Hogan, D. (1993) 44 FCR 572 referred to Milat v R (2004) 205 ALR 388 followed Dietrich v Queen (1992) 177 CLR 292 referred to Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 followed Lawrence Rivera v United States of America [2003] NSWSC 1176 referred to Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 referred to New South Wales v Canellis and AB (1994) 181 CLR 309 referred to Pasini v United Mexican States (2002) 209 CLR 246 followed Ping, L.S. and Anor v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 648 referred to Republic of South Africa v Dutton (1997) 77 FCR 128 referred to Telstra Corp Ltd v Hurstville City Council (2002) 118 FCR 198 referred to Todhunter v Attorney-General (Cth) (1994) 52 FCR 228 followed Todhunter v United States of America and Anor (1995) 57 FCR 70 followed United Mexican States v Cabal and Ors (2001) 183 ALR 645 referred to Wiest v Director of Public Prosecutions (1988) 23 FCR 472 followed Winkler v Director of Public Prosecutions (1990) 25 FCR 29 referred to Zoeller v Federal Republic of Germany and Others (1989) 23 FCR 282 followed LAWRENCE JOHN RIVERA v UNITED STATES OF AMERICA N 2350 of 2003 HEEREY, SUNDBERG and CRENNAN JJ 16 JUNE 2004 MELBOURNE