Lawrence Rivera v United States of America - Judgment re: application to stay proceedings [2003] NSWSC 1176 (28 November 2003)

Last Updated: 22 December 2003

NEW SOUTH WALES SUPREME COURT

CITATION: Lawrence RIVERA v UNITED STATES OF AMERICA - Judgment re: application to stay proceedings [2003] NSWSC 1176



CURRENT JURISDICTION:

FILE NUMBER(S): 13440/02

HEARING DATE{S): 28/11/03

JUDGMENT DATE: 28/11/2003

PARTIES:
Lawrence RIVERA (Plaintiff)
UNITED STATES OF AMERICA (Defendant)

JUDGMENT OF: Bell J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
In person (Plaintiff)
Ms P McDonald (Defendant)

SOLICITORS:
In person (Plaintiff)
Commonwealth DPP (Defendant)


CATCHWORDS:


ACTS CITED:
Extradition Act 1988 (Cth)

DECISION:
Application to stay the proceedings refused


JUDGMENT:


THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

FRIDAY 28 NOVEMBER 2003

13440/02 - LAWRENCE RIVERA v USA

JUDGMENT

1. HER HONOUR: I earlier today dealt with an application on notice that this proceeding be transferred to the Federal Court of Australia. I dismissed the plaintiff's motion. Prior to commencing the hearing of the proceeding, a review of the order of Magistrate O'Shane, the plaintiff moved without notice to have the hearing adjourned, alternatively, stayed because he is without legal representation.

2. In support of this application, which was informally foreshadowed to the defendant a week ago, the plaintiff referred me to the decision of the High Court in Dietrich -v- Queen [1992] HCA 57; (1992) 177 CLR 292, and to the State of New South Wales -v- Canellis [1994] HCA 51; (1994) 181 CLR 309. He handed up written submissions in support of his application. I have had the opportunity to review those submissions over the luncheon adjournment.

3. The plaintiff tendered correspondence with the Kingsford Legal Centre relating to the efforts made by that Centre to obtain legal representation for him.

4. The position as I apprehend it is this: The plaintiff applied for a grant of legal aid with respect to the conduct of this review. The Legal Aid Commission refused his application. It would appear that the representation of persons upon review hearings, under the Extradition Act 1988 (Cth) (the Act), falls outside its guidelines.

5. The plaintiff had access to some legal advice following Magistrate O'Shane's order. This assistance was provided on a pro bono basis, and the solicitor providing it ceased to act for him in March of this year.

6. The letter from Kingsford Legal Centre suggests that the plaintiff applied to the Bar Association of New South Wales under its pro bono scheme, but that his application was unsuccessful.

7. Kingsford Legal Centre undertook to approach a number of firms with a view to obtaining pro bono legal services for the plaintiff. Contact was made with a number of leading firms in this respect. At the date of the letter, 5 November 2003, Kingsford Legal Centre had not been successful in obtaining legal assistance for the plaintiff. In the letter it is stated that Kingsford Legal Centre anticipated receiving answers to the inquiries that it had made on the plaintiff's behalf in the week commencing 8 November. It is apparent that to date these inquiries have not proved fruitful.

8. The burden of the applicant's submissions is that he is at risk of conviction of a serious criminal offence in the United States of America should he be surrendered. In his written submissions he puts it this way:
“In Dietrich the guidelines are set for giving the courts the power necessary to grant a stay or adjournment indefinite, if need be, where there is an application by an indigent accused who is charged with a serious offence or where the interests of justice so requires and who through no fault on their part, is unable to obtain legal representation.”

9. In addition to the observations of the majority in Dietrich, the plaintiff has drawn my attention to the provisions of the International Covenant on Civil and Political Rights (the ICCPR). He notes that Australia is a party to that convention and he draws attention to Article 14 (1) and (3). In the plaintiff's submission, equality before the law carries with it the right of an indigent person at risk of being surrendered to a foreign country to face trial in respect of a serious criminal charge to be legally represented at the extradition proceedings in the Local Court, and on any review of orders made in that Court. He points to those provisions of the ICCPR at 14(3) with respect to the provision of adequate time and facilities for the preparation of an accused person's defence to the charges brought against him. He also draws attention in a detailed way to a number of the provisions of the ICCPR touching on the trial of persons charged with criminal offences.

10. In paragraph 30 of his written submissions, the plaintiff sets out a passage from the judgment of Kirby P (as he then was) in the Court of Appeal in Canellis v Slattery (1994) 33 NSWLR 104. I will return to the judgment of the High Court in Canellis. The plaintiff draws attention to the difficulties that he faces in attempting to prepare his review application while in custody. In particular, he notes the lack of adequate library facilities. He relies generally on the problems confronting a person without legal training, who is not a citizen of this country, in adequately conducting litigation on his own behalf.

11. Dietrich 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. In Canellis Mason CJ, Dawson, Toohey, and McHugh JJ in their joint judgment noted that the principle enunciated in Dietrich derives from an accused person's right to a fair trial. It is important, bearing in mind the submissions that were advanced by the plaintiff, to note that their Honours said this (at 328):

“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.”

12. I appreciate that it is the plaintiff's contention that he is ultimately at risk of conviction in respect of a serious criminal offence. However, 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 plaintiff to have the benefit of legal representation upon this hearing, the fair trial considerations with which the Court in Dietrich was concerned do not seem to me to be raised by the present proceeding. This does not mean that it would not be open to me to vacate today's hearing date in order to give the plaintiff the opportunity to obtain legal representation in an appropriate case.

13. In considering the application, I have taken into account the chronology that I referred to in my reasons for decision given earlier today. I do not propose to repeat the details. It is sufficient to note that there has been very considerable delay in the proceedings being brought on for hearing.

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 Legal Clearing House. Kingsford Legal Centre has made admirable efforts on the plaintiff's behalf to date without success. I do not consider it likely were I do to adjourn the proceedings for a short interval that the applicant would be able to obtain representation.

15. In these circumstances, the application that today’s hearing date be vacated, alternatively that the proceedings be stayed is refused.

********

LAST UPDATED: 19/12/2003